Filed 9/26/13 Chaoui v. Bank of America CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

KHALIL M. CHAOUI,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A. et al.,

Defendants and Respondents. B237770

(Los Angeles County Super. Ct. No. KC 060805)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Robert A. Dukes, Judge. Affirmed.

Khalil M. Chaoui, in pro. pe r., for Plaintiff and Appellant.

Bryan Cave, Robert E. Boone III, Jed P. White and Richard P. Steelman, Jr., for Defendants and Respondents.

* * * * * *2 Appellant Khalil M. Chaoui appeals pr o se the judgment dismissing his first amended complaint (FAC) with out leave to amend after the trial court sustained a demurrer filed by Bank of America, N.A. (BANA); U.S. Bank, N.A. (U.S. Bank), as

trustee for the certificate holders of Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series 2006-7; an d ReconTrust Company, N.A. (ReconTrust) (together respondents). We affirm.

FACTUAL AND PROCED URAL BACKGROUND 1 In this mortgage foreclosure case, appe llant obtained a $576 ,000 loan from BANA on July 12, 2006, for his residen ce, secured by a note and deed of trust. The deed of trust designed BANA as the lender and PRLAP, In c., as trustee. Appellant eventually

defaulted on the loan due to “economic hardship.” Thereaf ter in June and July 2010, appellant sent a host of letters (all of which he attached to his comp laint) inquiring about his loan and purporting to take several acti ons related to it. When he received no responses, he recorded a quitclaim deed and gr ant deed to himself. On August 3, 2010,

someone also recorded two documents title d “Substitution of Trustee” and “Full Reconveyance,” which were purportedly signe d by “George Becske” as an “authorized officer” of both BANA and BAC Home Loan Servicing, LP. On October 5, 2010, BANA recorded a “Rescission of Substitution of Trustee and Full Reconveyance,” stating the August 3 recorded documents were not recorded by the

trustee of record and were void. The same day BANA also recorded a “Substitution of Trustee and Assignment of Deed of Trust,” substituting ReconTrust as the trustee and U.S. Bank as beneficiary under the deed of trust. On Oct ober 8, 2010, ReconTrust sent appellant a “Debt Validation Notice” pursuan t to title 15 United States Code section

1 We take the facts from appellant’s origin al complaint, which included nearly 200 pages of correspondence and other materials, the FAC, which incor porated by reference the factual allegations and s upporting documents in the or iginal complaint, and the documents judicially noticed by the trial c ourt, which appellant does not challenge on appeal. ( Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.A pp.4th 497, 506 ( Jenkins ).)3 1692g, 2 confirming on that date appellant ow ed $568,541.50 on his loan and notifying appellant he had 30 days from receipt of the notice to dispute the debt. On October 13, 2010, ReconTrust, as ag ent for beneficiary U.S. Bank, re corded a “Notice of Default” on the property. During this time, appella nt continued to send correspondence to respondents (again, all of which he attached to the complaint). ReconTrust, as trustee, r ecorded a “Notice of Trustee’ s Sale” on January 25, 2011, and sold the property at a trustee’s sale on February 17, with a “Trustee’s Deed Upon Sale” recorded on February 25. Appellant continued to send correspondence to respondents during this time. 3 On March 21, 2011, appellant filed a ve rified “Action for Trespass on the Case” against respondents. In that complaint, he alleged claims for (1) intentional fraud; (2) injunctive relief based on Civil Code sec tion 2923.5; (3) declaratory relief; (4) intentional infliction of emotional distress; (5) “promissory note ”; and (6) unfair competition. 4 In support of these claims, he alleged respondents committed fraud by concealing the process of selling a promissory note into the mortgage-backed securities market; U.S. Bank did not own the note at the time of foreclosure because there was no recorded assignment or endorsem ent from the original lender to U.S. Bank and U.S. Bank

2 The notice incorrectly cite s title 15 United States Code section 1692(G), which does not exist.

3 On March 11, 2011, a “Notice of Resci ssion of a Trustee’s Deed Upon Sale” was recorded. Although re spondents do not discuss it in th eir brief, this appears to be fabricated. It was signed by “Steve Flor es” as a purported “Appointed Authorized Officer” of ReconTrust. “Steve Flores” also signed the proofs of service of appellant’s opening brief and appe ndices in this appeal and submitte d a declaration in support of appellant’s application for a te mporary restraining order in th e trial court, suggesting he was not in fact an authori zed officer of ReconTrust.

4 Appellant also filed various other request s and motions that were denied, rejected, or stricken: an application for a temporary restraining order; a notice of related case for an unlawful detainer action against him by respondents; a writ of error quae coram nobis residant ; a motion for contempt against Judge Dukes; and requests for default. With the possible exception of the denied contempt motion discussed post , he does not challenge these rulings on appeal.4 did not have physical possessi on of the note; and ReconTrust did not have authority to foreclose without a valid assignment. He also attached 28 exhibits comprised of approximately 200 pages of correspondence and other document s discussed above. Respondents demurred to all of the claims and filed a motion to strike parts of the complaint and a request for judicial notice; th e trial court granted the request for judicial notice, sustained the demurrer in its entirety, and denied the motion to strike as moot. The court rejected appellant’s “produce the note” theory because it ha s been “uniformly rejected” by courts and the court found all th e claims barred because appellant failed to allege he could tender the debt he owed. Th e court also rejected the individual claims: the fraud claim failed because appellant faile d to identify a misrepresentation and the allegations lacked specificity; the injunctio n claim failed because appellant’s property had already been sold; the in tentional infliction of emotio n distress claim failed because appellant did not allege outrageous conduc t or severe emotional distress; and the declaratory relief and unfair competition clai ms failed because they were based on the other defective claims. The trial court gave appellant 10 days leave to amend all but the injunctive relief claim, which it di smissed without leave to amend. Appellant filed his FAC on June 28, 2011 , but it added no new facts; instead, it incorporated by reference all the factual allegations in the original complaint and merely realleged claims for intentional fraud, de claratory relief, intentional infliction of emotional distress, and unfair competition. It also added a new claim for breach of the covenant of good faith and fair dealing based on the same general facts. Respondents again demurred to all the claims and filed a motion to strike parts of the FAC and a request for judicial notice; the trial court i ssued a tentative decision granting the request for judicial notice, 5 sustaining the demurrer in its en tirety, and granting the motion to strike. The trial court found appellant failed to address the deficiencies in his original complaint and he was not gran ted leave to add the new breach of the covenant of good

5 Appellant has not challenged that ruling on appeal.5 faith and fair dealing claim, which in any case was not supported by f acts. The trial court indicated it would hear from appellant on the issue of leave to amend. At the hearing on the demurrer, appellant requested 20 days leave to amend the FAC and the trial judge repeatedly inquire d what facts appellant could allege to overcome the defects previously identified. Appellant did not provide any, so the court

sustained the demurrer without l eave to amend, and denied the motion to strike as moot. The court entered judgment dismissing the FAC and appellant timely appealed.

DISCUSSION 1. Standard of Review “When reviewing a court’s dismissal of a lawsuit following an order sustaining a demurrer without leave to amend, we initially review the comp laint de novo to determine whether, as a matter of law, th e complaint alleges a valid cause of action. [Citation.] We assume the truth of all properly pleaded and j udicially noticeable material facts within the complaint, but we do not assu me ‘“‘“contentions, deductions or conclusions of fact or law.”’”’ [Citation.] We must read the co mplaint ‘“‘as a whole and its parts in their

context’”’ in order to ensure that ‘“‘we give the complaint a reasonable interpretation . . . .’”’ [Citation.] “If we conclude the complaint fails on any grounds stated in the demurrer, we

must then consider whether there is ‘“a re asonable possibility”’ the complaint’s defect(s) can be cured by an amendment. [Citation.] If it is apparent the complaint’s defects can be cured, the trial court has abused its di scretion and we will reverse the judgment. [Citation.] Alternatively, if it is apparent the complaint’s defects cannot be cured, no

abuse of discretion has occu rred and we will affirm the judgment. [Citation.] The burden of proving the reasonable possibility of such a curative amendment falls ‘“‘squarely on the plaintiff.’ [Cita tions.]” [Citations.]’ [Citation.] “Furthermore, where the plaintiff request s leave to amend the complaint, but the record fails to suggest how th e plaintiff could cure the comp laint’s defects, ‘the question as to whether or not [the] court abused its di scretion [in denying the plaintiff’s request] is open on appeal . . . .’ [Citation. ] Because the trial court’s discretion is at issue, we are6 limited to determining whether th e trial court’s discretion was abused as a matter of law. [Citation.] Absent an effective request for leave to amend the co mplaint in specified ways, an abuse of discretion can be found ‘“only if a potentially effective amendment were both apparent and c onsistent with the plaintiff’s theo ry of the case.” [Citation.]’ [Citation.]” ( Jenkins, supra , 216 Cal.App.4th at pp. 506-507.) 2. “Court of Record” and “State Case Law” Arguments Appellant’s first two questions presen ted in his opening brief are generally whether the trial court violated article 6, section 1 of the Ca lifornia Constitution and whether Judge Dukes “exceeded his jurisdiction in this court of record by acting as if it was [an] equity proceeding and not a procee ding in common law.” In argument sections entitled “Court of Record” and “State Case Law, ” appellant seems to argue the trial court exceeded its jurisdiction under article 6, section 1 of the California Constitution in dismissing his FAC. We need not parse ap pellant’s somewhat confusing argument on this point. Article 6, section 1 states, “The j udicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.” Suffice it to say the trial court properly exer cised jurisdiction over appellant’s complaint under this provision. 6

3. Claims in the FAC and Leave to Amend In his opening brief, appellant does not address his individual claims for fraud, declaratory relief, intentional infliction of emo tional distress, or breach of the covenant of good faith and fair dealing. Indeed, he se ems to concede there were “defects” in those claims limited to the “causes of action [themsel ves] not to the facts that the respondents admitted to committing wrongful acts.” Appellant has abandoned these claims for his failure to brief them. ( Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th

6 To the extent appellant is attempting to challenge the trial court’s denial of his motion for contempt based on similar arguments, that ruling was not directly appealable. (Code Civ. Proc., §§ 1222, 904.1(a)(1)(B); In re Holmes (1983) 145 Cal.App.3d 934, 941.) Appellant filed a writ petition in case No. B236962 challengi ng the denial of his contempt motion on similar grounds, which was denied.7 1250, 1282 ( Pfeifer ).) Nor is he entitled to more lenien t treatment because he is pro se. ( Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.A pp.4th 522, 524.) Appellant appears to primarily argue the trial court should have granted him leave to amend the FAC to reallege his unfair co mpetition claim and to add new claims under Penal Code section 532f, subdivision (a)(4); the federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692g(b)); the fede ral Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. § 2605(e)); Civil Code sections 1624 and 29 32.5; and California

Uniform Commercial Code secti on 3302. In his original and amended complaints, he cited or alluded to most of these statutes, a lthough he did not set forth separate claims

under each one and the trial c ourt did not address them. Be cause these claims are not valid, appellant has not show n a reasonable possibility of curing the defects in his complaint and the trial court prop erly denied leave to amend. A. “Produce the Note” Theory and Authority to Foreclose Appellant has either alleged, argued, or alluded to several theories attacking respondents’ authority to for eclose on his property, all of wh ich have been rejected in other cases. For example, appellant allege d respondents should have produced the original note in order to foreclose on his pr operty. However, “[Civil Code] section 2924, subdivision (a)(1), permits a notice of default to be filed by the ‘trustee, mortgagee, or beneficiary, or any of their authorized agents .’ The provision does not mandate physical possession of the underlying prom issory note in order for this initiation of foreclosure to be valid.” ( Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 440 ( Debrunner ); see also Jenkins, supra , 216 Cal.App.4th at p. 512.) Appellant also suggests the securitization of hi s loan deprived resp ondents of the author ity to foreclose. However, appellant has no standing to assert that claim. ( Jenkins, supra , at pp. 514-515.) And despite appellant’s claims to the contra ry, respondents did not need to record any assignments in order to exercise the power to sell under a deed of trust. (Civ. Code, § 2932.5; Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 125 ( Calvo ); see

also Jenkins, supra , at p. 518; Haynes v. EMC Mortgage Corp. (2012) 205 Cal.App.4th8 329, 336; Herrera v. Federal Na tional Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1509-1510 ( Herrera ).) More generally, appellant has alleged no facts to suggest respondents could not validly foreclose on his property after he defaulted on his loan and the documents attached to his complaint and subject to j udicial notice demonstrate the foreclosure was proper. BANA was the beneficiary under the d eed of trust with the authority to foreclose and to designate ReconTrust as a new trustee. BANA did so on October 1, 2010, along with transferring beneficial interest to U.S. Bank. ReconTrust then validly recorded the Notice of Default on October 13, 2010, as ag ent of beneficiary U.S. Bank, and validly conducted the trustee’s sale on February 17 , 2011. (Civ. Code, §§ 2924, subd. (a)(1), 2934a; Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1055 [finding ReconTrust validly r ecorded notice of default u nder § 2924, subd. (a)(1) as trustee and agent of beneficiary].) Thus, th ese theories cannot support appellant’s new

claims. B. Penal Code Section 532f, Subdivision (a)(4) Penal Code section 532f, subdivisi on (a)(4) imposes criminal penalties for mortgage fraud: “(a) A person commits mortga ge fraud if, with the intent to defraud, the person does any of the following: [¶] . . . [¶] (4) Files or causes to be filed with the recorder of any county in connection with a mortgage loan transaction any document the person knows to contain a deliberate misstatem ent, misrepresentation, or omission.” Appellant cites nothing to support a private right to bring a civil claim for violating this criminal statute. (See Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62-63 [“[A] private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages. If the Legislature in tends to create a private cause of action, we generally assume it will do so ‘“directly[,] . . . in clear, understandable, unmistakable terms . . . .” [Citation.]’ [Cita tions.]”].) In any ca se, appellant has identified no facts to demonstrate any knowing and deliberate misstat ement or omission. As discussed above, BANA validly substituted ReconT rust as trustee and ReconT rust had the authority to9 record the notice of default and conduct the fo reclosure sale. Thus, even if appellant had a private right of action under Penal Code section 532f, subdivision (a)(4), he has not alleged facts to demonstrate a violation an d no amendment would cure that defect. C. FDCPA, Title 15 United St ates Code Section 1692g(b) Appellant argues respondent ReconTru st violated the FDCPA (15 U.S.C. § 1692g(b)) by failing to respond to four debt validation notices he sent between November 2010 and January 2011. 7 The FDCPA was designed “to e liminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection prac tices are not competitively di sadvantaged, and to promote consistent State action to prot ect consumers against debt colle ction abuses.” (15 U.S.C. § 1692(e); see Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App.4th 972, 996.) The statute therefore prohibits harassi ng and abusive conduct related to collection (15 U.S.C. § 1692d); false, de ceptive, or misleading represen tations (15 U.S. C. § 1692e);

and unfair or unconscionable me ans of collection (15 U.S.C. § 1692f). It also requires a

debt collector to send a consumer a written notice within five days after an initial communication, which must include, among other information, a statement that the consumer has 30 days to disput e the debt. (15 U.S.C. § 1692g(a).) If the debt is timely disputed, “the debt collector shall cease co llection of the debt, or any disputed portion thereof, until the debt collector obtains verificati on of the debt or a copy of a judgment, or the name and address of the original cred itor, and a copy of such verification or judgment, or name and address of the origin al creditor, is mailed to the consumer by the debt collector.” ( 15 U.S.C. § 1692g(b).) The FDCPA only applies to debt collectors engaging in conduct that constitutes “debt collection” under the act. ( Pfeifer, supra , 211 Cal.App.4th at pp. 1261-1262.) A “debt collector” is generally defined as “a ny person who uses any instrumentality of

interstate commerce or the ma ils in any business the princi pal purpose of which is the

7 Although appellant appears to direct this claim at all respondents, he only identifies ReconTrust as a “deb t collector” under the FDCPA.10 collection of any debts, or who regularly co llects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another.” (15 U.S.C. § 1692a(6); see Pfeifer, supra , at p. 1261.) And a “debt” is defined as “any obligation or alleged obligation of a consumer to pay mone y arising out of a transaction in which the money, property, insurance, or services wh ich are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” (15 U.S.C. § 1692a(5); see Pfeifer, supra , at p. 1261.) Although there is contrary authority, we agree with the cases holding that “giving

notice of a foreclosure sale to a consumer as required by the Civil Code does not

constitute debt collection ac tivity under the FDCPA.” ( Pfeifer, supra , 211 Cal.App.4th at pp. 1261-1264 [rejecting FDCPA claim agai nst trustee ReconTrust for undertaking foreclosure process]; see also Natividad v. Wells Fargo Bank, N.A. (N.D.Cal. May 24, 2013, No. 3:12-cv-03646 JSC) 2013 WL 2299601, p. *9 ( Natividad ); but see Glazer v.

Chase Home Finance LLC (2013) 704 F.3d 453, 459-463 [holding mo rtgage foreclosure is debt collection under the FDCPA].) That is particularly true in this case in which appellant has not alleged respondents dema nded payment directly from appellant or otherwise engaged in any de bt collection activity beyond undertaking the statutory nonjudicial foreclosure process. (See Pfeifer, supra , at p. 1263 & fn. 4; Natividad, supra

, at p. *9.) While ReconTrust sent appellant a Debt Validation Notice dated October 8, 2010, which cited the FDCPA and stated ReconT rust “may be a debt collector attempting to collect a debt and any info rmation it obtains will be used for that purpose,” that notice simply contained the information require d by § 1692g(a), i.e ., appellant owed $568,541.50 on his mortgage, the creditor was BAC Home Loan Servicing, LP, and appellant must dispute the debt within 30 days of receiving the notice. ReconTrust did not demand payment and the lang uage that ReconTrust may be a debt collector at most reflects “the inconsistency in the caselaw regarding a mortgage foreclosure trustee’s FDCPA liability.” ( Natividad, supra , at p. *9 [rejecting same argument based on similar11 language in notice of default].) 8 Thus, appellant’s FDCPA claim fails as a matter of law and appellant cannot reasonably cure the defect by amendment. D. RESPA, Title 12 United St ates Code Section 2605(e) Appellant claims BANA 9 violated RESPA (12 U.S.C. § 2605(e)) by failing to respond to his letter sent on June 22, 2 010, which he labeled as a “qualified written request” (QWR) under RESPA. Respondents c ontend this claim fails because appellant’s letter did not trigger the response requirement in RESPA and, even if it did, appellant suffered no actual damages as a result of the fa ilure to respond. We find the second point persuasive and need no t address the first.

Title 12 United States Code section 2605 of RESPA sets forth requirements for the servicing of mortgage loans, and among other things, requires a loan servicer to respond to a QWR from a borrower. ( Jenkins, supra , 216 Cal.App.4th at p. 530.) When violated, the statute permits a borrower to obtain any “ actual damages to the borrower as a result of the failure” and “any additional da mages, as the court may allow, in the case of a pattern or practice of noncompliance with the requir ements of [RESPA], in an amount not to exceed $1,000.” (§ 2605(f)(1); see 12 C.F.R. § 1024.21(f)(1)(i); Jenkins, supra , at p. 531.) 10

8 The January 21, 2011 Notice of Trustee’s Sale indicated ReconTrust “is a debt collector attempting to collect a debt. Any information obtained w ill be used for that purpose.” Although stated more firmly, this still does not indicate ReconTrust was legally engaged in debt collection under the FDCPA.

9 The record is not clear, but it appears BA C Home Loan Servicin g, LP was the loan servicer, which appellant alleged was a “subdi vision” of BANA. Appellant directs his RESPA arguments to BANA, so we will assume BANA was the servicer for purposes of this appeal. As respondents correctly note, neither U.S. Bank nor ReconTrust can be liable for RESPA violations because th ey were not loan servicers. ( Medrano v. Flagstar Bank, FSB (2012) 704 F.3d 661, 667 [“[O]nly serv icers of loans are subject to [12 U.S.C.] § 2605(e)’s duty to respond . . . .”].)

10 The Dodd-Frank Wall Street Reform a nd Consumer Protection Act increased the penalty for a pattern or practice from $1,000 to $2,000, but that cha nge does not go into effect until January 2014. (Pub.L. No. 111 -203 (July 21, 2010) 1 24 Stat. 1376, 2136, 2183-2184; Berneike v. CitiMortgage, Inc. (10th Cir. 2013) 708 F.3d 1141, 1145, fn. 3.)12 “[F]ederal courts have read 12 United States Code section 2605 as requiring a plaintiff to plead specific fact s showing both the defendant’s failure to respond and the plaintiff’s suffering of ‘pecuniar y damages’ in order to avoid the dismissal of his or her RESPA claim. [Citations.]” ( Jenkins, supra , 216 Cal.App.4th at pp. 531-532.) In

Jenkins

, the court found no RESPA violation b ecause, rather than resulting from a RESPA violation, the plaintiff’s actual dama ges “result[ed] from he r admitted default on her loan and/or her attempts to dispute th e validity of the promissory note and the security interest created by the deed of trust.” ( Id. at p. 532.) Sh e admitted as much, given she sent the QWR letter after her default and the receipt of the notice of default. ( Id. at p. 533.) As a result, she failed to allege her claimed damages “were plausibly incurred because of the alleged RESPA violati on, and were not the consequences of her earlier default.” ( Ibid. ) Nor did the plaintiff sufficiently allege a pattern or practice of RESPA violations from a single failure to respond to a QWR. ( Ibid. )

As in Jenkins

, appellant has not identified any dama ges he incurred as a result of alleged RESPA violations as opposed to hi s default on his loan. In his QWR, he essentially requested all record s related to his loan and a full accounting of all payments and fees on his loan, but by the time he se nt the letter in June 2010, he had already stopped making payments on hi s loan due to alleged “econo mic hardship.” He does not claim he failed to make his payments because of issues with the serv icing of his loan or that he would have made future paymen ts if BANA had give n him the servicing information he requested. Like the appellant’s damages in Jenkins , any damages here stemmed from appellant’s failure to pay his mortgage, not BANA’s vi olation of RESPA. He also alleged he sent only one QWR, so he has not identified a pattern or practice justifying statutory damages. Thus, his RESPA claim fails a nd he cannot reasonably cure the defects by amendment. E. Civil Code Sections 1624 and 2932.5, and California Uniform Commercial Code

Section 3302 Without discussion, appellant cites Civil Code sections 1624 and 2932.5, as well

as California Uniform Commercial Code sec tion 3302. We find any arguments based on13 these statutory provisions waived for failure to support them with reasoned argument. ( Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.Ap p.4th 939, 956 ( Cahill ).) In any case, appellant cannot state a claim under a ny of these provisions. Civil Code section 1624 codifies the statute of frauds, but appella nt does not identify any oral agreement that was required to be in writing. Civil Code section 2932.5 requires the recording of an assignment of the power to sell under a mortga ge, but it does not require the recordation of assignments to invoke the power of sale under a deed of trust. ( Calvo, supra , 199 Cal.App.4th at p. 125.) Finally, Califor nia Uniform Commercia l Code section 3302

defines the “holder in due course” of a negotiable instrument, but Commercial Code provisions dealing with negotiable in struments do not apply to California’s comprehensive nonjudicial foreclosure scheme. ( Debrunner, supra , 204 Cal.App.4th at pp. 440-441.) F. Business and Professi ons Code Section 17200 The Unfair Competition La w (UCL), Business and Prof essions Code section 17200, “creates ‘“three varieties of unfair competition -- acts or practices which are unlawful, or unfair, or fraudulent,”’” and th e unlawful prong “‘“‘bo rrows’”’” violations of other laws and makes them indepe ndently actionable under the UCL. ( Jenkins, supra

, 216 Cal.App.4th at p. 520.) Appellant lis ts several allegedly unlawful, unfair, and fraudulent acts committed by respondents in vi olation of the UCL, some of which are derivative of the claims we have rejected a bove and some of which he mentions for the first time (e.g., violating the “Security Firs t Rule,” reporting payments late to credit bureaus, and violating Civ. C ode, § 1095). To the extent this claim rests on the same violations discussed above, it fails b ecause the underlying claims fail. ( Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147.) To the extent appellant attempts to raise new claims without supporting argument, those contentions are waived. ( Cahill, supra , 194 Cal.App.4th at p. 956.) G. Tender and Prejudice Arguments Because we have found appellant has a dvanced no cognizable legal theories to support leave to amend his FAC, we need no t also address respondents’ arguments that14 appellant was required to tender the balance due on his loan ( Jenkins, supra , 216 Cal.App.4th at p. 535) or that appellant su ffered no prejudice from any alleged violations in the foreclosure process ( Herrera, supra , 205 Cal.App.4th at p. 1507; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.Ap p.4th 256, 272).

DISPOSITION The judgment is affirmed. Respon dents are entitled to costs on appeal.

FLIER, J.

I CONCUR:

BIGELOW, P. J.RUBIN, J. - CONCURRING

I concur in the judgment.

RUBIN, J.