Filed 10/1/20 Kamal v. Deutsche Bank National Trust Co. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

MAJID KAMAL et al., 

 Plaintiffs and Appellants, 

v.

DEUTSCHE BANK NATIONAL 

TRUST COMPANY etc. et al.,

 Defendants and Respondents,

2d Civil No. B301673

(Super. Ct. No. 56-2019-

00528212-CU-OR-VTA)

(Ventura County)

Here, a verified complaint for wrongful foreclosure 

incorporates the deed of trust that authorized the loan 

assignment and nonjudicial foreclosure that appellants complain 

about. Majid Kamal and Sheri Kamal appeal from a dismissal 

entered after the trial court sustained, without leave to amend, a 

demurrer to their First Amended Complaint for wrongful 

foreclosure and cancellation of instruments. Judgment was 

entered for defendants, Deutsche Bank National Trust Company 

as trustee for IndyMac INDX Mortgage Loan Trust 2006-AR5, 

Mortgage Pass-Through Certificates Series 2006-AR5, and Ocwen

Loan Service, LLC. (herein Deutsche Bank). We affirm.
2

Facts and Procedural History

Appellants filed this action on May 9, 2019 after their 

home was sold at a nonjudicial foreclosure based on their 

$600,000+ default on an IndyMac Bank F.S.B. (IndyMac) loan

secured by a deed of trust. Appellants originally purchased the 

property in 2006 with a $520,000 IndyMac loan secured by a deed 

of trust. The deed of trust stated that Mortgage Electronic 

Registration Systems, Inc. (MERS) was the loan beneficiary and 

“is acting solely as a nominee for Lender and Lender’s successors 

and assigns.” It provided that MERS could exercise any right 

belonging to the original lender (IndyMac) and its assigns and 

successors, and that MERS could sell the promissory note or a 

partial interest in the note without notice to appellants. 

In 2009, after IndyMac failed and was placed in a 

Federal Deposit Insurance Corporation (FDIC) receivership, 

MERS assigned the Deed of Trust to OneWest Bank, FSB

(OneWest).1 On June 25, 2012, OneWest assigned the deed of

1 A detailed description of the FDIC takeover of IndyMac 

and sale of its assets to OneWest Bank is described in Deutsche 

Bank Nat. Trust Co. v. F.D.I.C. (9th Cir. 2014) 744 F.3d 1124, 

1127: “On July 11, 2008, the Office of Thrift Supervision closed 

IndyMac, appointed the FDIC as receiver, created a new savings 

bank, IndyMac Federal, and appointed the FDIC as conservator 

(FDIC–C) of IndyMac Federal. Another federal savings bank, 

OneWest Bank, was formed as a thrift holding company to 

purchase IndyMac Federal’s assets and liabilities. As receiver 

and conservator, the FDIC ‘succeeded to all rights, titles, powers, 

and privileges of IndyMac Federal, including those arising under 

the Governing Agreements or otherwise related to the Trusts.’ 

As IndyMac Federal’s conservator, the FDIC administered the 

Trusts and serviced the mortgages based on servicing rights 

established by the Governing Agreements. In that capacity, the 
3

trust to Deutsche Bank. Appellants had already defaulted on 

the loan, and a notice of default and notice of trustee’s sale were 

recorded for $613,768.89 due and owing on the loan. Appellants 

remained in possession until the nonjudicial foreclosure was 

conducted on April 23, 2019. Deutsche Bank was the highest 

bidder and the Trustee’s Deed Upon Sale was recorded April 30, 

2019.

The Complaint 

Appellants filed a verified complaint for $2.5 million 

damages nine days later and attached the deed of trust as an 

exhibit to the complaint. The complaint stated that the deed of 

trust named MERS “as the nominee for IndyMac and its 

successors and assignees. A true and correct copy of the [deed of 

trust] is attached as Exhibit 1 and is incorporated in full herein 

by this reference.”2

Thereafter, appellants filed a First Amended

Complaint without the deed of trust attached. It stated that 

IndyMac assigned the note and deed of trust to IndyMac, M.B.S.

on March 30, 2006. Appellants claimed that IndyMac M.B.S. was

FDIC sold certain assets and rights of IndyMac Federal to 

OneWest for approximately $13.9 billion.”

2 If the complaint incorporates an instrument by reference, 

the latter document’s contents prevail over any inconsistent 

allegations contained in the pleading. (Dodd v. Citizens Bank of 

Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.) These

admissions are binding on the pleader without further 

evidentiary proof. (Kurinij v. Hanna & Morton (1997) 55 

Cal.App.4th 853, 871; Patane v. Kiddoo (1985) 167 Cal.App.3d 

1207, 1213.)
4

“a similarly named, but wholly separate and distinct entity” and 

that it “could at least be reasonably inferred (based on law) 

that . . . IndyMac ha[s] dispos[e]d itself of any interest in or to the 

Note and/or [deed of trust].” When IndyMac failed in 2008, the 

Federal Deposit Insurance Commission had MERS transfer 

IndyMac’s interest in the note and deed of trust to IndyMac 

Federal Bank, F.S.B., and then to OneWest. Appellants claimed 

it was too late to do that. The First Amendment Complaint 

alleged that the MERS assignment to OneWest in 2009 and the 

OneWest assignment to Deutsche Bank in 2012 were void 

because IndyMac divested itself of all interest in the note and 

deed of trust in 2006. Stated another way, MERS had nothing to 

assign and nothing was assigned to Deutsche Bank before the 

foreclosure. The First Amended Complaint prayed for $2.5 

million damages and cancellation of the deed of trust 

assignments and foreclosure documents recorded after January 1, 

2007. 

The Demurrer

Deutsche Bank filed a demurrer and requested that 

the trial court take judicial notice of the recorded deed of trust 

and foreclosure documents. Deutsche Bank argued that the deed 

of trust named MERS as the beneficiary and the nominee of 

IndyMac and its successors or assigns. Appellants did not 

contest the authenticity of the recorded documents but argued 

that the recitals in the deed of trust (i.e., that MERS was the loan 

beneficiary and IndyMac’s nominee) was hearsay and not the 

proper subject of judicial notice. The trial court overruled the 

objection and sustained the demurrer without leave to amend. 
5

De Novo Review

The function of a demurrer is to test whether, as a 

matter of law, the facts alleged in the first amended complaint 

state a cause of action under any legal theory. (Intengan v. BAC 

Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052

(Intengan).) In our de novo review of the order, we assume the 

truth of all facts properly pleaded, but not contentions, 

deductions, or conclusions of law. (Ibid.) We determine whether 

the alleged facts are sufficient, as a matter of law, to state a 

cause of action under any legal theory. (Ibid.) In making this 

determination, we consider any facts of which the trial court 

properly took judicial notice. (Ibid.)

Hearsay - a Non-Issue

Appellants contends that the trial court erred in 

treating the recitals in the deed of trust (i.e., that MERS was the 

beneficiary and IndyMac’s nominee) as true. (See Poseidon 

Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 

Cal.App.4th 1106, 1117 [trial court may not accept as true 

statements contained in documents that are subject to judicial 

notice].) But “evidentiary facts found in recitals of exhibits 

attached to a complaint or superseded complaint . . . can be 

considered on demurrer. [Citations.]” (Frantz v. Blackwell (1987) 

189 Cal.App.3d 91, 94.) Appellants adopted, admitted, and 

incorporated the terms of the deed of trust into the verified 

complaint. It was a judicial admission that mooted the hearsay 

objection. 

On review, we must accept as true the contents 

of exhibits attached to the original complaint. (See Barnett v. 

Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) “Under 

the doctrine of truthful pleading, the courts ‘will not close their 
6

eyes to situations where a complaint contains allegations of fact 

inconsistent with attached documents, or allegations contrary to 

facts which are judicially noticed.’ [Citation.] ‘False allegations of 

fact, inconsistent with annexed documentary exhibits [citation] or 

contrary to facts judicially noticed [citation], may be 

disregarded . . . .’ [Citations.]” (Hoffman v. Smithwoods RV 

Park, LLC (2009) 179 Cal.App.4th 390, 400.)

The Deed of Trust

The deed of trust states that MERS was the loan 

beneficiary and could assign the security interest at any time 

without appellants’ consent. If an assignment was made, it had 

to be done by MERS. (See, e.g., Intengan, supra, 214 Cal.App.4th 

at pp. 1054-1055.) The allegation that IndyMac assigned the

deed of trust in 2006 to a new entity, rendering the MERS

assignments to OneWest and Deutsche Bank void, lacks any 

factual basis. Because only factual allegations are considered on 

demurrer, we disregard any contentions, deductions or 

conclusions of fact or law alleged in the First Amended 

Complaint. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 

1173.)

Appellants claim that MERS’s agency relationship 

with IndyMac terminated when IndyMac failed and was taken 

over by the FDIC. But MERS was more than just an agent. It 

was the deed of trust beneficiary and IndyMac’s nominee, and the 

nominee of IndyMac’s successors and assigns. (See, e.g., Calvo v. 

HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 125.) 

“California courts have held that a trustor who agreed under the 

terms of the deed of trust that MERS, as the lender’s nominee, 

has the authority to exercise all of the rights and interests of the 

lender, including the right to foreclose, is precluded from 
7

maintaining a cause of action based on the allegation that MERS 

has no authority to exercise those rights. [Citations.] The deed 

of trust itself, attached to [appellants’ verified complaint], 

establishes as a factual matter that MERS has the authority to 

exercise all of the rights and interests of the lender. [Citations.] 

The authority to exercise all of the rights and interests of the 

lender necessarily includes the authority to assign the deed of 

trust. [Citation.]” (Siliga v. Mortgage Electronic Registration 

Systems, Inc. (2013) 219 Cal.App.4th 75, 83-84, disapproved on 

other grounds in Yvanova v. New Century Mortgage Corp. (2016) 

62 Cal.4th 919, 939, fn. 13.)

The recitals in the deed of trust are incorporated into 

and part of the verified complaint. Appellants cannot do an end 

run around their pleading by filing the First Amendment 

Complaint sans the deed of trust. “The rationale for this rule is 

obvious. ‘A pleader may not attempt to breathe life into a 

complaint by omitting relevant facts which made his previous 

complaint defective.’ [Citation.] Moreover, any inconsistencies 

with prior pleadings must be explained; if the pleader fails to do 

so, the court may disregard the inconsistent allegations.

[Citation.] . . . [¶] Furthermore, as a matter of law, allegations in 

a complaint must yield to contrary allegations contained in 

exhibits to a complaint. [Citation.]” (Vallejo Development Co. v. 

Beck Development Co. (1994) 24 Cal.App.4th 929, 946.) Granting 

appellants leave to amend the First Amended Complaint would 

serve no useful purpose, given the fact that the actions of 

Deutsche Bank, as set forth in the verified original complaint, 

does not give rise to a cause of action. (Mercury Casualty Co. v. 

Superior Court (1986) 179 Cal.App.3d 1027, 1035.)
8

Tender

The demurrer was sustained on the alternate ground 

that the First Amended Complaint does not allege a tender of the 

loan amount, a necessary element of wrongful foreclosure. (Lona 

v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) Appellants 

argue that no tender was required because the deed of trust 

assignment was void. As discussed, appellants are estopped by 

the deed of trust which is attached, incorporated into, and part of 

the verified complaint. The deed of trust stated that MERS could 

sell or assign the deed of trust at any time. This court cannot 

torture the straightforward and ordinary provisions of the deed of 

trust to fasten upon Deutsche Bank a liability it never assumed. 

(Nichols v. Great American Ins. Cos. (1985) 169 Cal.App.3d 766, 

778.) 

Statute of Limitations Bar

An action to cancel an instrument is subject to the 

four-year statute of limitations found in Code of Civil Procedure 

section 343. (Moss v. Moss (1942) 20 Cal.2d 640, 645; Salazar v. 

Thomas (2015) 236 Cal.App.4th 467, 477, fn. 8.) The First 

Amended Complaint states that the 2009 and 2012 deed of trust 

assignments are void and should be canceled. Appellants did not 

file suit until May 9, 2019. It is an obvious time bar. 

Appellants argue that the statute of limitations was 

tolled until May 2017 when they learned that the assignments 

were void. No facts are alleged concerning lack of knowledge, 

lack of means of obtaining knowledge in the exercise of 

reasonable diligence, and how and when appellants discovered 

the assignments were void. (See Fox v. Ethicon Endo-Surgery,

Inc. (2005) 35 Cal.4th 797, 808-809 [pleading requirements for 
9

delayed discovery].) Conclusory allegations do not withstand 

demurrer. (Id. at p. 808.) 

Delayed discovery is defeated by presumed or 

constructive notice where the foreclosure documents are mailed 

and recorded. (Bank of New York Mellon v. Citibank, N.A. (2017) 

8 Cal.App.5th 936, 956.) Appellants were presumptively aware of 

the assignments: (1) before May 2015, when the mortgage 

servicer (Ocwen Loan Servicing, LLC) contacted appellants on 

behalf of Deutsche Bank to explore options to avoid foreclosure as 

required by Civil Code section 2923.55; (2) in May 2015, when 

Deutsche Bank recorded a substitution of trustee stating it was 

the “present beneficiary” under the deed of trust and that is was 

substituting Western Progressive, LLC as the new trustee; (3) in 

June 2015, when Deutsche Bank recorded and served the notice 

of default and election to sell under the deed of trust, and 

identified itself as the beneficiary of the deed of trust; (4) and in 

December 2015, when the notice of sale was recorded, published, 

mailed, and posted on appellant’s door. (Civ. Code, §§ 2924, subd. 

(a); 2924f, subd. (b)(1)-(4).) 

In the alternative, appellants claim that Code of Civil 

Procedure section 319 provides for a five-year statute of 

limitations. But that statute governs actions to determine title of 

real property. (Robertson v. Superior Court (2001) 90 

Cal.App.4th 1319, 1327.) The First Amended Complaint 

challenges assignments of the deed of trust and goes to the 

validity of the real property lien, not title to the property. 

Appellants finally argue that the statute of limitations did not 

commence to run until the last overt act (see Wyatt v. Union 

Mortgage Co. (1979) 24 Cal.3d 773, 786), but that applies to civil

conspiracies. (Id. at p. 787, fn. 4.) No conspiracy is alleged here.
10

Disposition

The judgment (order sustaining demurrer) is 

affirmed. Deutsche Bank is awarded costs on appeal. 

 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Jeffrey G. Bennett, Judge

Superior Court County of Ventura

______________________________

Tovar & Cohen, René Tovar and David J. Cohen, for 

Plaintiffs and Appellants.

Houser, Emilie K. Edling and Robert W. Norman, for 

Defendants and Respondents.