Filed 10/23/15 Anderson v. U.S. Bank Nat. Assn. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

ELLA M. ANDERSON et al.,

Plaintiffs and Appellants,

v.

U.S. BANK NATIONAL ASSOCIATION,

Defendant and Respondent.

 B260254

 (Los Angeles County

 Super. Ct. No. KC066740)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T.

Oki, Judge. Affirmed.

Ella M. Anderson and Willie Anderson, in pro. per., for Plaintiffs and Appellants.

Keesal, Young & Logan, David D. Piper and Sean B. Cooney for Defendant and 

Respondent.

——————————
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Ella M. Anderson and Willie Anderson obtained a $319,500 loan from a lender 

and, to secure the loan, executed a deed of trust encumbering one of their houses. The 

lender’s beneficiary assigned the deed of trust to U.S. Bank National Association (U.S. 

Bank) as trustee. When the Andersons failed to make loan payments, U.S. Bank initiated 

foreclosure. The Andersons filed this lawsuit to quiet title, challenging U.S. Bank’s 

authority to foreclose because the assignment to U.S. Bank is allegedly invalid and 

arguing they are no longer obligated to pay the loan to anyone—the original lender or 

U.S. Bank. The trial court sustained U.S. Bank’s demurrer because the Andersons do not 

have a legal basis to bring this lawsuit. We affirm.

BACKGROUND

I. Facts of the case

In July 2007, the Andersons obtained a $319,500 loan from Encore Credit. To 

secure the loan, they executed a deed of trust encumbering their house, naming Mortgage 

Electronic Registration Systems, Inc. (MERS) as beneficiary. In March 2012, MERS (as 

nominee for Encore Credit) recorded an assignment of the deed of trust to U.S. Bank as 

trustee. The Andersons began missing loan payments, and U.S. Bank initiated 

foreclosure.

II. Procedural history

In March 2014, the Andersons filed this lawsuit with two causes of action: to 

quiet title and for wrongful foreclosure. In June, the trial court sustained U.S. Bank’s 

demurrer but allowed the Andersons leave to amend.

In July, the Andersons amended their complaint to assert the quiet title claim only.

The Andersons alleged that U.S. Bank has no authority to initiate foreclosure because the 

assignment of the deed of trust to U.S. Bank is invalid and therefore they are not 

obligated to pay the loan to anyone.

The trial court sustained U.S. Bank’s demurrer because the Andersons have not 

shown any legal basis for asserting their quiet title claim; the trial court also denied the 

Andersons leave to amend their complaint.
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DISCUSSION

We review de novo the trial court’s judgment sustaining a demurrer. (Bank of 

America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1203.) “‘A demurrer tests the 

legal sufficiency of the factual allegations in a complaint.’” (Ibid.) On trial court rulings 

such as denial of leave to amend after sustaining a demurrer, however, our standard of 

review (abuse of discretion) is deferential to the trial court. (Id. at p. 1204.)

I. The trial court correctly held that the Andersons have no legal basis for 

asserting their claim.

A. California precedent

1. Financing real property with a deed of trust

In California, financing of real property is generally accomplished through a deed 

of trust. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 507

(Jenkins).) “A deed of trust . . . conveys title to real property from the trustor-debtor to a 

third-party trustee to secure the payment of a debt owed to the beneficiary-creditor under 

a promissory note.” (Id. at p. 508.) “[I]f the trustor-debtor fails to pay back the debt 

owed under the promissory note,” the trustee must initiate foreclosure on the real 

property for the benefit of the beneficiary-creditor. (Ibid.)

2. Defaulting debtors cannot delay foreclosure by requiring

foreclosing party to prove in court its authority to foreclose.

California is a nonjudicial foreclosure state. Multiple California court decisions

have established that a defaulting debtor has no right to bring a lawsuit to challenge the 

authority of a foreclosing party to initiate nonjudicial foreclosure proceedings. (See 

Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes); 

Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256 (Fontenot); Herrera v. 

Federal National Mortgage Association (2012) 205 Cal.App.4th 1495; Jenkins, supra, 

216 Cal.App.4th 497; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 

219 Cal.App.4th 75 (Siliga); Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 

1481; Kan v. Guild Mortgage Company (2014) 230 Cal.App.4th 736 (Kan).)
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The seminal case, Gomes, supra, 192 Cal.App.4th 1149, explained that the state 

Legislature enacted a comprehensive statutory framework to regulate such foreclosures, 

intending the process to be quick, inexpensive, and efficient specifically by keeping 

courts out. (Id. at p. 1154.) Lawsuits that would require the foreclosing party to prove in 

court its authority to initiate a foreclosure—when it is undisputed that the debtors are in 

default—are simply an attempt to interject courts into the nonjudicial scheme, which 

undermines the framework established by the Legislature. (Id. at pp. 1154–1155.) Such

lawsuits would not only burden and lengthen the foreclosure process but also allow

defaulting debtors to file lawsuits solely to delay valid foreclosure. (Id. at p. 1155.) 

There is no unfairness to the debtor, because the foreclosure should occur regardless; an 

assignment merely substitutes one creditor for another, without changing the debtor’s

unmet obligation under the note. (Fontenot, supra, 198 Cal.App.4th at p. 272.)

“As a result, a nonjudicial foreclosure sale is presumed to have been conducted 

regularly, and the burden of proof rests with the party [challenging the sale] to rebut this

presumption.” (Fontenot, supra, 198 Cal.App.4th at p. 270.) Thus, the plaintiff has the 

burden to affirmatively plead a specific factual basis for the alleged misconduct. (Ibid.)

B. The Andersons do not have a legal basis for this lawsuit.

The trial court correctly held that Gomes, supra, 192 Cal.App.4th 1149, and its 

progeny applies. The Andersons’ first amended complaint challenges the authority of

U.S. Bank to initiate foreclosure. This is the same argument repeatedly rejected by 

courts, and we reject it again here.

On appeal, the Andersons ask this court not to follow Gomes, 192 Cal.App.4th 

1149, and instead find that there is always a private cause of action to challenge a 

foreclosing party’s authority. The Andersons cite as support the California Homeowner 

Bill of Rights (HBOR), the Fifth Appellate District’s decision in Glaski v. Bank of 

America (2013) 218 Cal.App.4th 1079 (Glaski), and a First Circuit case, Culhane v. 

Aurora Loan Services of Nebraska (1st Cir. 2013) 708 F.3d 282. We are not persuaded.

First, HBOR became effective only on January 1, 2013. The conduct that the 

Andersons allege as improper (assignment of the deed of trust to U.S. Bank) occurred in 
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March 2012, before the HBOR effective date. While they allege in their brief that a 

foreclosure occurred in 2014, after the HBOR effective date, their first amended 

complaint contains no such factual allegation. Further, the Andersons failed to cite which 

statutory provision in HBOR provides the cause of action allegedly applicable here.

Second, Glaski, supra, 218 Cal.App.4th 1079, is an outlier decision that our 

district is not bound to follow.1 Indeed, no other California court has followed the 

reasoning in Glaski. For example, other divisions in our district have instead followed 

the reasoning in Gomes, supra, 192 Cal.App.4th 1149, which issued before Glaski. (See 

Siliga, supra, 219 Cal.App.4th 1481; Kan, supra, 230 Cal.App.4th 736.) Not only do we 

give substantial deference to decisions within our district, but we agree that their

reasoning is correct, as discussed above.

Third, the First Circuit case is not persuasive here. Not only are federal appellate 

opinions not binding authority, that case does not apply to the facts here. The First 

Circuit did not consider California’s unique nonjudicial statutory framework, the main 

reason for why judicial challenge to a foreclosing party’s authority is not appropriate.

The Andersons also argue that if Gomes, supra, 192 Cal.App.4th 1149, applies, 

they have stated a specific factual basis for why U.S. Bank does not have authority to 

foreclose here. The Andersons’ allegations, however, are vague, conclusory, and not 

supported by applicable legal authority—essentially a hodge podge of various wellknown arguments already unsuccessfully asserted by other defaulting debtors hoping to 

delay valid foreclosure. The only argument that they actually develop to an extent is that 

allegedly U.S. Bank was only assigned the deed of trust and not the note. But, again, that 

ground has been rejected by California courts, because a foreclosing party need not hold 

the underlying promissory note to initiate foreclosure. (See Debrunner v. Deutsche Bank 

 

1 The California Supreme Court has granted review in several cases discussing 

how no California court has followed Glaski, supra, 218 Cal.App.4th 1079, but it has not 

yet issued a decision. (See Yvanova v. New Century Mortgage Corporation (2014) 331 

P.3d 1275; Keshtgar v. U.S. Bank (2014) 334 P.3d 686; Mendoza v. JPMorgan Chase 

Bank (2014) 337 P.3d 493.)
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National Trust Co. (2012) 204 Cal.App.4th 433, 440–441; Siliga, supra, 219 Cal.App.4th 

at p. 84, fn. 5; Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 

511.)

II. The Andersons have failed to show the trial court abused its discretion in 

denying leave to amend.

When “‘the plaintiff demonstrates a reasonable possibility that the defect can be 

cured by amendment,’” we will reverse a trial court’s denial of leave to amend as an 

abuse of its discretion. (Bank of America, N.A. v. Mitchell, supra, 204 Cal.App.4th at p. 

1204.) Here, again, the Andersons provide no substantive argument as to how they could 

cure the defect in their complaint identified by the trial court; instead, they argue that the 

trial court should not have sustained demurrer in the first place. As explained above, we 

agree with the trial court’s sustaining U.S. Bank’s demurrer and therefore find no abuse 

of discretion in the trial court’s decision not to grant leave to amend.

DISPOSITION

The judgment is affirmed. Costs are awarded to U.S. Bank National Association.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

MOOR, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.