Filed 6/22/16 Riggs v. Wells Fargo Bank CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MICHAEL RIGGS et al.,

 Plaintiffs and Appellants,

v.

WELLS FARGO BANK, N.A., et al.,

 Defendants and Respondents.

 G051770

 (Super. Ct. No. 30-2014-00712039)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Craig L. 

Griffin, Judge. Affirmed.

Law Offices of Joseph R. Manning, Jr., Joseph R. Manning, Jr., and Craig 

G. Côté, for Plaintiffs and Appellants.

Kutak Rock, Jeffrey S. Gerardo and Steven M. Dailey, for Defendants and 

Respondents.

* * *

Michael Riggs, in his individual capacity and as co-trustee of the Michael 

Riggs Revocable Trust, and his wife Evelyn Riggs appeal from the trial court’s entry of 
2

judgment after sustaining the demurrer filed by Wells Fargo Bank, N.A., and US Bank 

National Association, as trustee for Sasco Mortgage Loan Trust 2006-WF1, (collectively, 

the Lender) to their first amended complaint for breach of contract, negligent 

misrepresentation, and Civil Code section 2923.6 and Business and Professions Code 

section 17200 violations. The Riggses filed their lawsuit to preclude a trustee’s sale of 

their home and to enforce the Lender’s asserted oral promise to modify the terms of the 

loan secured by their home. They assert the trial court erred in concluding the gravamen 

of their complaint arose during the pendency of their personal bankruptcy proceedings, 

and therefore was not actionable in state court. In other words, their bankruptcy estate 

owned any causes of action stemming from the Lender’s alleged broken promise or

misrepresentation that the Riggses’ participation in a three-month loan modification trial 

period plan (TPP) would entitle them to permanent modification of their home loan.

 The trial court in its thorough ruling also explained among other alternate 

grounds that the statute of frauds and the Riggses’ conclusory assertion of a material 

improvement in their financial circumstances were fatal to their claims. Because the 

court was correct on these alternate points as a matter of law, we must affirm the 

judgment and need not address the parties’ other contentions. 

I

FACTUAL AND PROCEDURAL BACKGROUND

The trial court’s detailed ruling includes the information pertinent to our 

review and, as relevant, we add particulars that the parties emphasize in our discussion 

below.

The court explained in its minute order: “The court previously sustained the 

defendants’ demurrer with leave to amend. The plaintiffs filed a first amended complaint 

in response but such pleading does not cure the defects noted in the prior ruling [by] this 

court. On the face of the pleading and judicially noticeable documents, it is clear that the 

[plaintiffs] filed for bankruptcy during the time period at issue in [their] complaint. As 
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such, the bankruptcy trustee retains the right to raise any claims arising from the facts 

alleged in the complaint. Such claims include Wells Fargo’s alleged wrongful failure to 

approve plaintiffs[’] loan modification applications. 

“It is clear from the amended complaint that the plaintiff[s] lack[] standing 

to sue on the claims alleged. There has been no showing or allegations by the plaintiff[s]

that the bankruptcy trustee abandoned or exempted the claims at issue in this pleading. 

Rowland v. Financial Corp. (D. Hawaii 1996) 949 F.Supp. 1447, 1453. [¶] The 

argument raised, again, by the [p]laintiffs that they were not aware of these [breach of 

contract, misrepresentation, or other] claims at the time of their bankruptcy filings is not 

persuasive because they . . . still fail to cite any authority which would support their 

argument. Simply put the bankruptcy estate included all legal and equitable interests of 

the [plaintiff] debtors at the commencement of the [bankruptcy] case, and only the trustee 

could bring the claims. For this reason alone, the demurrer to each of the causes of action 

should be sustained without leave to amend.” 

The trial court noted several additional, alternate bases for sustaining the 

demurrer as to plaintiffs’ breach of contract claim. First, “the [p]laintiffs seek to 

challenge [and enjoin] the [pending] foreclosure of their property without alleging an 

immediate ability to tender the amounts due. Arnold Mgmt. Corp. v. Eischen (1985) 

158 Cal.App.3d 575, 579-580. The [p]laintiffs do not allege any facts which would make 

application of the tender rule inequitable. As such, the demurrer should also be sustained 

without leave to amend for failure to allege tender.”

Second, “[p]laintiffs do not [adequately] ple[a]d or assert in their 

opposition any [contractual] obligation by defendants to provide them with a loan 

modification. Plaintiffs have not alleged that the language of the TPP required the 

defendants to provide the plaintiffs with a permanent modification. Since loan 

modifications are subject to the statute of frauds, such must be set forth in a writing. 

Secrest v. Sec. National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544
4

[Secrest]. The TPP, therefore, will not support the breach of contract cause of action 

alleged.” 

Third, as to both the breach of contract and misrepresentation claims, the 

court observed: “The [p]laintiffs allege that the [d]efendants misrepresented to them that 

they would receive a loan modification if they made additional payments [under the TPP] 

and that they relied upon the statements when making the additional payments. The 

cause fails to allege [the terms of the purported new, permanent contract modification or] 

the misrepresentation . . . with the required specificity and more importantly does not 

allege facts which constitute justifiable reliance by the [p]laintiffs. The law makes it 

clear that making payments which a borrower is already legally obligated to make cannot 

support reliance to their detriment. Newgent v. Wells Fargo Bank, N.A. (S.D. Cal. 

March 2, 2010) 2010 WL 761236. Additionally, the allegations do not refer to a past or 

existing fact but rather a promise to do something in the future; such is not the proper 

basis for a negligent misrepresentation cause of action. Magpali v. Farmers Group

(1996) 48 Cal.App.4th 471.” 

The trial court also invoked tender in its ruling on the Riggses’ statutory 

claims, noting, “The [p]laintiffs attempt to plead a violation of Civil Code § 2923.6 cause 

of action but have not alleged tender . . . as is required to avoid foreclosure.”1

Alternately, the court added that, “in order to entitle the borrower to 

reconsideration” of a loan modification, “under the language of Section 2923.6[,] the 

material change in their financial circumstances . . . must be ‘documented by the 

borrower and submitted to the mortgage servicer.’ [Civ. Code § 2923.6(b).]” (Original 

 

1 As the Riggses explained in their first amended complaint, section 2923.6 

codifies a portion of what has become known as “the Homeowner’s Bill of Rights,” 

which they described as ensuring “that, as part of the non-judicial foreclosure process, 

borrowers are not only considered for, but have a meaningful opportunity to obtain, any 

available loss mitigation options offered by or through the borrower’s mortgage servicer, 

such as loan modifications or other alternatives to foreclosure.” 
5

brackets.) The court continued: “From the allegations of the third cause [of action] and 

the exhibits to the FAC [First Amended Complaint], the plaintiffs have not established 

that they fulfilled such obligations. The [p]laintiffs merely stated that the[re] had been a 

material change in their financial circumstances and . . . their income had increased.” 

Finally, the court explained that “[t]he fourth cause is not pled with 

sufficient facts to constitute a cause of action for violation of § 17200. The cause is 

derivative of the [p]laintiffs’ other claims; since . . . they are insufficient to state a 

cause[,] this cause is also insufficient for the same reasons.” 

After sustaining the demurrer, the trial court subsequently entered 

judgment, and the Riggses now appeal.

II

DISCUSSION

A. Preliminary Matters

The Riggses expend considerable effort addressing the tender rule, judicial 

estoppel in light of their earlier bankruptcy filings (in which they listed none of their 

present causes of action), and the trial court’s conclusion their claims belonged to their 

respective bankruptcy estates. For the sake of completeness, we observe briefly that a 

homeowner in default generally must make an unambiguous tender of the entire 

outstanding debt before challenging an impending or completed nonjudicial foreclosure

sale. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 (Lona); Nguyen v. Calhoun 

(2003) 105 Cal.App.4th 428, 445-446.) “‘The rationale behind the rule is that if [the 

borrower] could not have redeemed the property had the sale procedures been proper, any 

irregularities in the sale did not [or would not] result in damages to the [borrower].’” 

(Lona, at p. 112.)

Around the time the Riggses made successive $1,900 payments in July, 

August, and September 2013 under the Lender’s trial period plan that they later claimed 

entitled them to an “affordable,” permanent modification, the mortgage statement they 
6

attached to their first amended complaint reflected that their monthly mortgage obligation

was almost $5,000, their unpaid payments and late charges dating to 2010 approached 

$200,000, and their total amount in default by the time of their complaint was over 

$218,000. 

The Riggses’ pleadings do not suggest they attempted to pay the amount 

due to Lender, but as they note, the tender rule is subject to exceptions. For example, “if 

the borrower’s action attacks the validity of the underlying debt, a tender is not required 

since it would constitute an affirmation of the debt.” (Lona, supra, 202 Cal.App.4th at 

pp. 112-113; see also Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 

1052, 1061 (Chavez) [outlining exceptions].) Or as the Riggses emphasize in an 

unattributed quotation, “[a] tender may not be required where it would be inequitable to 

do so.”2 (Accord, Lona, supra, at p. 113.) The Riggses observe that “[i]f the requirement 

of tender was an absolute rule, homeowners would seldom, if ever, given delinquency 

payments and the press of foreclosure proceedings, be able to challenge even the most 

egregious foreclosure and would very well undermine the purpose of California’s 

Homeowner Bill of Rights.” 

Apart from the tender rule, the Riggses also contend judicial estoppel or 

standing principles do not bar them from raising their claims, which they did not include

in their recent bankruptcy schedules. Evelyn Riggs had filed her personal bankruptcy 

petition in June 2012 and obtained a discharge of unsecured debt in November 2012. 

 

2 The Riggses had owned their Yorba Linda home since 2001, and in the 

2005, they borrowed $731,500 from Lender, secured by a promissory note and 

corresponding deed of trust. According to their complaint, a few years later their 

“financial status began its downward spiral due to the nationwide economic crisis and 

major cutbacks by employers, downsizing, and wage reduction,” compounded by a 

neighborhood fire that damaged their home, and health crises that included a cancer 

diagnosis and spinal surgery. The Riggses do not specify these or any other particular 

facts rendered the tender rule inequitable, but instead assert generally that their pleadings 

alleged mitigating facts “to such degree” that applying the tender rule “was an abuse of 

discretion.” 
7

Michael Riggs had filed his petition in October 2012 and his discharge of unsecured debt 

became final in February 2013. 

The Riggses acknowledge they alleged in their first amended complaint in 

this action that their attempts to obtain a loan modification stretched over the period 

“[b]etween late 2010 and early 2013,” during which they complained Lender “dragged 

[them] across an endless cycle of repetitive document requests, resulting in no favorable 

resolution.” Because this period overlapped with their respective bankruptcy petitions, 

they recognize the trial court may have believed, albeit mistakenly they claim, that the 

breach of contract, misrepresentation, and attendant statutory claims they allege here 

were part of their loan modification attempts as a whole, and therefore belonged to their 

bankruptcy estate. In other words, all their modification claims were inextricably linked 

together, and because they first arose before and during the pendency of their bankruptcy 

petitions, it was for their bankruptcy trustee to raise them in the bankruptcy court, and 

they had no standing to do so now in state court.

The Riggses claim that, while the trial court’s conclusion was 

understandable because they had “re-allege[d] and incorporate[d] by reference” in each 

of their substantive causes of action “all paragraphs above,” including their claims of an 

ongoing modification process “[b]etween late 2010 and early 2013,” the trial court erred 

because their causes of action focused on the loan modification trial payment plan they 

entered “[i]n or around June of 2013,” which was months after their bankruptcy 

discharges. Thus, they insist their causes of action for breach of contract, 

misrepresentation, and attendant statutory claims related to the TPP had not yet arisen at 

the time of their bankruptcies, did not belong to their bankruptcy estates, and did not 

preclude them from asserting them here.

But we need not delve further into or resolve on appeal these issues related 

to the tender rule or the bankruptcy proceedings for the simple reason that the trial court’s 
8

alternate holdings require us to uphold the demurrer, particularly for lack of written 

documentation required by the statute of frauds and Civil Code section 2923.6.

B. Breach of Contract

The statute of frauds disposes of the Riggses’ breach of contract and 

misrepresentation causes of action. The statute of frauds requires that real estate 

contracts, including an agreement “to pay an indebtedness secured by a mortgage or deed 

of trust,” must be in writing. (Civ. Code, § 1624.) Contractual modifications also must 

be in writing. (Civ. Code, § 1698, subd. (c) [“The statute of frauds . . . is required to be 

satisfied if the contract as modified is within its provisions”].) Put another way, as the 

trial court observed in quoting Secrest, “An agreement to modify a contract that is subject 

to the statute of frauds is also subject to the statute of frauds.” (Secrest , supra, 

167 Cal.App.4th at p. 553.)

Here, the Riggses alleged in their first amended complaint that Lender 

“approved [them] for a loan modification trial period plan (‘TPP’) in or around 

June 2013.” The terms of the plan required them to submit monthly payments of 

approximately $1,900 in July, August, and September 2013. The Riggses alleged they 

“spoke with [Lender’s] Home Preservation Specialist, Kenneth Foster, who assured 

Plaintiffs that after Plaintiffs successfully made the three (3) payments, Mr. Foster would 

try to get Plaintiffs a lower monthly payment. Mr. Foster further advised Plaintiffs that 

Plaintiffs needed to successfully complete the three (3)-month trial period plan by making 

all trial payments on the dates they were due, and then, Plaintiffs[’] loan would be 

permanently modified.” (Italics added.) 

According to the complaint, once “Plaintiffs timely made all the payments 

under the TPP agreement” and “the three (3)-month TPP had come to its end,” they 

“attempted to contact Mr. Foster,” but “were unsuccessful [and] a different representative 

of Wells Fargo, Nicholas Fortune, advised that Mr. Foster was no longer with the 
9

company and Mr. Foster left no notes/record of Plaintiffs’ status with the modification. 

Mr. Fortune also advised Plaintiffs that their request for a loan modification was denied 

due to their income, which Plaintiffs only reduced because Wells Fargo’s representatives 

initially advised Plaintiffs to do so in order to qualify.”3

The Riggses never alleged their claimed TPP modification plan had any 

written basis. Because the Riggses’ allegation that their “loan would be permanently 

modified” rested on an oral communication, the statute of frauds precluded their breach 

of contract claim. (Civ. Code, § 1698, subd. (c); Secrest, supra, 167 Cal.App.4th at 

p. 553.) The Riggses rely on West v. JPMorgan Chase Bank, N.A. (2013) 

214 Cal.App.4th 780, 786 (West), and Chavez, but those cases do not aid them.

The Riggses cite West for “the proposition that when a lender fails to 

complete a permanent modification after a successful trial plan period . . . , such failure 

constitutes a cause of action for Breach of Contract.” But in West, it was undisputed that 

“the Trial Plan Agreement constituted a written contract.” (West, supra, 214 Cal.App.4th 

at p. 796.) In particular, the lender there informed the borrower she “had been approved 

for a TPP” in an approval letter offering “‘a permanent workout solution for your loan 

once the Trial Plan has been completed,’” but cautioning that “‘[i]f you do not make your 

payments on time, or if any of your payments are returned for nonsufficient funds, this 

Agreement will be in breach and collection and/or foreclosure activity will resume.’” (Id.

at p. 789, italics added.) Here, in contrast, the Riggses never alleged or attached to any of 

their complaints a written modification agreement.

Chavez is similarly unavailing. The Riggses assert under Chavez that 

“Respondents and the [Trial] Court are estopped from asserting a Statute of Frauds 

defense to Appellants’ Breach of Contract cause of action [because] Appellants tendered 

 

3 As we discuss below, the Riggs alleged they subsequently “appeal[ed] the 

denial based on incorrect income calculations,” and corrected their income 

misstatements, but to no avail because the Lender denied their modification request.
10

payments for the TPP and the Respondent (Wells Fargo) accepted the payments . . . .” 

Chavez recognized that courts “‘have the power to apply equitable principles to prevent a 

party from using the statute of frauds where such use would constitute fraud.’ 

[Citation.]” (Chavez, supra, 219 Cal.App.4th at p. 1057-1058.) 

The Riggses’ equitable estoppel claim fails on the merits, however. In 

Chavez, the court acknowledged that “[t]he question whether Chavez adequately pleaded 

facts to allege equitable estoppel to rely on the statute of frauds defense is a close one.” 

(Chavez, supra, 219 Cal.App.4th at p. 1061.) The court noted that “[i]n Secrest, the 

appellate court found that a homeowner’s mere payment of money, a down payment in 

reliance on a forbearance agreement not signed by the party to be charged, was 

insufficient to raise an estoppel to assert the statute of frauds defense.” (Ibid.) But in 

Chavez, the written “Modification Agreement” that the lender gave the borrower was 

“ambiguous at best and illusory at wors[t].” (Ibid.) The agreement induced the borrower 

to acquiesce to adding unpaid and deferred sums to the outstanding principal balance, 

accruing interest on those sums “‘which would not happen without this Agreement.’” 

(Ibid.) The court concluded that the “[d]efendants’ conduct, combined with the language 

of the Modification Agreement that Chavez’s original loan documents would 

‘automatically’ be modified on a date certain could be construed as an implied 

representation that the statute of frauds would not be relied upon.” (Ibid.) 

There was no similar written modification agreement or sharp practices 

here on which to premise estoppel. Chavez recognized, as in Secrest, that a plaintiff does 

“not sufficiently allege an estoppel because she merely made payments she was already 

obligated to make under the Trial Period Plan.” (Chavez, supra, 219 Cal.App.4th at 

p. 1061.) That was the case here, and therefore the Riggses’ attempt to avoid the statute 

of frauds fails.

C. Negligent Misrepresentation
11

The Riggses’ misrepresentation claim similarly fails because of the statute 

of frauds. Negligent misrepresentation is “form of deceit,” which requires “justifiable 

reliance thereon by the party to whom the misrepresentation was directed.” (Fox v. 

Pollack (1986) 181 Cal.App.3d 954, 962.) The gravamen of plaintiffs’ deceit claim is 

that Lender misled them that if they made their reduced payments under the TPP, they 

would be granted a permanent, “affordable” modification of their original loan 

agreement. But their complaint reveals that the basis for their claim was an alleged oral

misrepresentation by a former Lender representative “that if they made the three (3)-

month trial plan payments and submitted all requested documents to Defendant, then the 

loan modification would be converted into a permanent loan modification.” Where the 

statute of frauds requires a written agreement to modify a contract (Civ. Code, §§ 1624; 

1628, subd. (c)), it is not reasonable to rely on an allegedly spoken modification offer. 4

 

4 At oral argument, the Riggses asserted for the first time promissory 

estoppel as a basis for their breach of contract claim and, by implication, their 

misrepresentation claim — based on the allegedly false promise to modify the original 

loan terms if the Riggses made their payments under the TPP. But promissory estoppel 

requires, in addition to a clear and unambiguous promise, “(2) reliance by the party to 

whom the promise made; (3) [the] reliance must be both reasonable and foreseeable; and 

(4) the party asserting the estoppel must be injured by his reliance.” (Aceves v. U.S. Bank 

N.A. (2011) 192 Cal.App.4th 218, 225.) The Riggses point to no alternate measure or 

action that allegedly relying on the TPP prevented them from doing to save their home, 

and thus no injury traceable to the TPP. In these circumstances, there was no reasonable 

or foreseeable reliance on an allegedly spoken modification offer when a written 

agreement was required.
12

D. Statutory Claims

The trial court also reasonably could conclude the lack of adequate written 

documentation doomed the Riggses’ substantive claim under Civil Code section 2923.6. 

As a preliminary matter, the Riggses asserted a technical violation of that code section 

because the Lender did not provide them with a written denial of their modification 

request. (See Civ. Code, § 2923.6, subd. (f) [“Following the denial of a first lien loan 

modification application, the mortgage servicer shall send a written notice to the 

borrower identifying the reasons for denial,” italics added].) The purpose of that 

requirement, however, is to facilitate an appeal (id., subd. (f)(1)), and the Riggses’ 

acknowledged Lender representative Fortune informed them of the reason for the denial 

(insufficient income), enabling them to take their appeal and address the reason for the 

denial. They were not successful, but nothing in the legislation requires the lender to 

award the homeowner a modification. (See Civ. Code, § 2923.4 [“The purpose of the act 

that added this section is to ensure that, as part of the nonjudicial foreclosure process, 

borrowers are considered for, and have a meaningful opportunity to obtain available loss 

mitigation options,” but “Nothing in the act . . . shall be interpreted to require a particular 

result of that process”].)

The Riggses’ substantive claim under Civil Code section 2923.6 also fails 

as a matter of law. They relied on subdivision (g), which provides that a lender “shall not

be obligated to evaluate applications from borrowers . . . who have been evaluated or 

afforded a fair opportunity to be evaluated [for a first lien loan modification] consistent 

with the requirements of this section, unless there has been a material change in the 

borrower’s financial circumstances since the date of the borrower’s previous application 

and that change is documented by the borrower and submitted to the mortgage servicer.” 

(Italics and bold added.)

The Riggses alleged in their first amended complaint that when the Lender 

denied their loan modification, they appealed and “resubmitted their financial documents 
13

and proof of their correct income value directly to Wells Fargo in October of 2013, after 

being advised by Wells Fargo’s representative that they had been denied for a 

modification due to their income.” 

They also alleged that in March 2014, two days before they filed their 

complaint, their attorney sent Lender “a letter regarding Plaintiffs’ loan and the material 

change in their financial circumstances. Specifically, this letter advised Defendants that 

Plaintiffs’ income had increased: Plaintiff Michael Riggs’s gross monthly salary had 

increased, as well as his income from overtime and commissions. Plaintiffs attached to 

the letter Plaintiff Michael Riggs’s most recent paystubs for the months of January 2014 

and February 2014, evidencing the increase in income. . . . In addition, Plaintiffs had 

eliminated a significant amount of personal unsecured debt and monthly expenses, 

thereby increasing the household’s gross [sic: net] monthly income. As [a] result of 

Plaintiffs’ material change in their financial circumstances, they were, and are in a much 

better position to make affordable mortgage payments. Defendant Wells Fargo, however, 

has not provided Plaintiffs with an opportunity to make affordable payments based on the

material change in their financial position.” (Italics added.) 

The trial court did not err in concluding these allegations of a “material 

change” failed to state a claim under subdivision (g). “‘[A]lthough the precise nature of 

the documentation required under this code is not clear, the plaintiff must do more than 

submit a new loan modification with different financial information.’ [Citations.] To 

find otherwise would be to defeat the intent of subsection (g), which is to ‘relieve 

mortgage servicers from evaluating multiple loan applications submitted for the purpose 

of delay.’ [Citation.]” (Castaneda v. Wells Fargo Home Mortgage (C.D. Cal. Feb. 26, 

2016) 2016 WL 77862, *4.) A letter that “‘the borrower has had a change of 

circumstances [in that] their income and expenses have changed’” only attempts to

“easily sidestep” subdivision (g)’s documentation requirement. (Winterbower v. Wells 

Fargo Bank, N.A. (C.D. Cal. Mar. 27, 2013) 2013 WL 1232997, *3, italics added.) “[T]o 
14

‘document’ and ‘submit’ a material change in circumstances means more than simply 

stating one’s expenses decreased and then providing two numbers.” (Ibid.)

Here, the plaintiffs did not even supply “two numbers” to indicate the 

degree of change they asserted was “material.” True, they attached to the first amended 

complaint Michael Riggs’s pay stubs for two months in 2014, but the stubs did not state 

any change between their modification application, their assertedly corrected figures 

upon appeal, or their 2014 “material change” application because the pay stubs did not 

reference any of those documents. Plaintiffs’ appendix on appeal does not include their 

March 2014 attorney letter to Lender, except an incomplete, barely legible “fax 

confirmation” portion of the letter, which, like their summary of the letter in their 

pleading, also only asserts a “material change” without explanation. 

A single line in the first amended complaint suggests some unspecified 

“financial documents showed a gross monthly income just over $6,000,” but again no 

reference is provided to discern whether this figure is material. The figure is not 

contrasted with income amounts in the initial modification application or the appeal, 

which are left unstated. Indeed, the $6,000 figure is about the same as the Riggses’ stated 

gross monthly income in their bankruptcy schedules, which hardly reflects a material 

change documenting their ability to pay their mortgage or a reasonable basis for the 

lender to agree to a modification. In sum, nothing in the first amended complaint 

provided any reason for a trier of fact to conclude a merely asserted “change” was 

material in relation to, for example, the tender sum due, the applicant’s previously 

documented income figures, or a “net present value” assessment of the loan (Civ. Code, 

§ 2923.6, subd. (f)(3)). Consequently, the court did not err in finding the Riggses’ claim 

fatally flawed.

Because plaintiffs’ claim for unfair business practices under Business and 

Professions Code section 17200 derived entirely from their other claims, and none of 

those survived demurrer, the trial court correctly sustained the demurrer on this claim too.
15

III

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. 

The supersedeas stay this court entered on October 30, 2015, of the then-pending 

November 2015 trustee’s sale appears to be moot and, in any event, is dissolved.

ARONSON, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.