Filed 6/19/13 Attili v. E*Trade Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAD ATTILI,
Plaintiff and Appellant,

v.
E*TRADE BANK et al.,
Defendants and Respondents. 2d Civil No. B242534 (Super. Ct. No. 56- 2010-00373496-CUOR-SIM) (Ventura County)

Appellant Jad Attili borrowed $1 million to purchase a home, secured by a deed of trust on the proper ty. When Attili stopped making his monthly payments, the loan servicer, respondent OneWest Bank, FSB (OneWest), appointed a successor trustee to institute nonjudicial forecl osure proceedings. Attili failed to cure the default, and the trustee sold the property at a foreclosure sa le. Attili's fourth am ended complaint seeks damages against OneWest and respondent E*Trade Bank (E*Trade) for, inter alia, wrongful foreclosure, intentional infliction of emotional distress and promissory estoppel.
The trial court dismissed Attili's claim for intentional infliction of emotional distress and granted respondents' motion for summary ju dgment as to the remaining claims. Attili contends triable issues of fact exist that preclude the grant of summary judgment. We disagree and affirm.2 FACTS AND PROCEDUR AL BACKGROUND In June 2006, MortgageIt, Inc. (M ortgageIt) loaned Attili $1 million to purchase a $1,265,980 single-family residence located at 4244 Copperstone Avenue in Simi Valley (Property). To secure repaymen t of the loan, Attili signed a promissory note
and deed of trust. The deed of trust gave the lender, its nominee and its successors and assigns the power to sell the Property upon de fault, and provided that the note "can be
sold one or more times without prior notice" to the borrower. It al so provided that a successor trustee could be appointed, and that "the successor trustee shall succeed to all the title, powers and duties conferred upon the [original] Trustee . . . ." MortgageIt reportedly sold the no te to IndyMac Bank, FSB (IndyMac) which retained the servicing ri ghts to the loan, bu t sold the note to UBS Real Estate Securities Inc. (UBS) under a master loan purchasing and servici ng agreement. UBS subsequently assigned the note to E*Trade. After IndyMac failed, OneWest acquired the servicing rights to the loan. Attili disputes whether MortgageIt effectively transferred ownership of the note, but admits that OneW est serviced his loan between March 2009 and May 2010. Citing a decrease in income, Attil i sought a loan modification from OneWest. Attili claims that he spoke w ith approximately 20 OneWest servicing representatives between June and Septembe r 2009, and that "one or two" of the representatives told him he would not be co nsidered for a loan modification unless he first defaulted on his loan payments. Based on this "advice," Attili stopped making payments in June 2009. OneWest purportedly sent at least tw o letters to Attili advising him of the default and outlining options to avoid foreclos ure. In October 2009, OneWest substituted Quality Loan Service Co mpany (Quality) as trustee under the deed of trust. After Quality
recorded a notice of default against the Property, OneWest advised Attili that he did not qualify for a loan modification due to its cont ractual obligations with the owner of the loan. Attili made no attempt to cure the defau lt, and Quality recorded a notice of trustee's3 sale. Following a series of delays, primar ily due to Attili's ba nkruptcy proc eedings, a third party purchased the Property at the sale in May 2010. Attili subsequently sued E*Trade, OneWest, Quality and others for wrongful foreclosure. After a number of successful demurrers, Attili filed a fourth amended complaint against E*Trade and OneWest allegi ng causes of action for (1) declaratory relief, (2) wrongful foreclosur e, (3) intentional infliction of emotional distress, (4) promissory estoppel, and (5) br each of the implied covenant of good faith and fair dealing. The first two causes of actio n allege that respondents lacked authority to foreclose because they "did not in fact own the note secured by the deed of trust," and did not comply with certain obligations under Civil Code section 2923.5. 1 The cause of action for promissory estoppel alleges that Attili relied to his detriment on IndyMac's promise to offer him a loan modification if he defaulted on his loan. The final cause of action for breach of the covenant of good fa ith and fair dealing reiterates the prior allegations and further alleges that responde nts improperly recorded certain documents in
connection with the foreclos ure. The complaint seeks compensatory and punitive damages, but does not seek to set aside the sale. The trial court sustained, with leave to amend, respondents' demurrer to the
third cause of action for intentional infliction of emotional distress. It also sustained E*Trade's demurrer to the claims for prom issory estoppel and breach of the implied covenant of good faith and fa ir dealing. Attili elected not to amend his pleading, and the trial court dismissed those causes of action with prejudice. 2 The trial court granted respondent s' subsequent motion for summary judgment as to the remaining claims. The c ourt determined that even though respondents did not establish some of the alleged material facts, including E*Tr ade's ownership of the

1 All further statutory references are to the Civil Code unless otherwise stated.

2 Appellant's appendix does not include the order of dismissal or the trial court's minute order granting the motion for summary ju dgment. We have taken judicial notice of these documents in the court's file in Jed Attili v. E*Trade Bank et al. (Super. Ct. Ventura County, 2012, No. 56-2010-003734 96-CU-OR-SIM). (Evid. Code, §§ 452, subd. (d), 459.)4 note, "[t]here are no triable issues of fact as to any wrongdoing in the foreclosure process, as to promissory estoppel, or as to breach of the implied covenant of good faith and fair dealing." The court further noted, "[t]he decl aratory relief cause of action simply restates the theories of liability c overed by the other causes of action." Attili appeals.
DISCUSSION Standard of Review Attili's notice of appeal references both the summary judgment and the prior order of dismissal, but his opening brief clarifies that "[t]he issue in this case is whether the trial court erred in granting su mmary judgment in favor of the Defendants . . . ." The brief does not raise any issu es concerning the dismissal of his claim for
intentional infliction of emotional distress as to both respondents and his claims for promissory estoppel and breach of the covena nt of good faith and fair dealing as to
E*Trade. We therefore limit our discussion to the propriety of the summary judgment ruling. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["Issues not raised in an appellant's brief are deemed waived or ab andoned"].) A motion for summary judgment "shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of la w." (Code Civ. Proc., § 437c, subd. (c).)
We review the record de novo to determine whether triabl e issues of material fact exist and whether respondents were entitled to judgment as a matter of law. ( Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Declaratory Relief and Wrongful Foreclosure
Attili's causes of action for declar atory relief and wrongful foreclosure allege that respondents lacked authority to foreclose because neither party was the owner of the note secured by the d eed of trust. Attili concedes the law does not require a foreclosing party to actually produce the origin al note, but asserts that the party, at a minimum, must prove an enforceable intere st in the note. He is incorrect. As we recently stated in Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 511 ( Shuster ), "California's statutory nonjudicial foreclosure5 scheme (§§ 2924-2924k) does not require that the foreclosing party have a beneficial interest in or physical posse ssion of the note." (Accord, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497; Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204 Cal.App.4th 433, 440-441 ( Debrunner ); Gomes v. Countrywide Home Loans,
Inc. (2011) 192 Cal.App.4th 1149, 1154; Lane v. Vitek Real Estate Industries Group (E.D. Cal. 2010) 713 F.Su pp.2d 1092, 1099.) "Sectio n 2924, subdivision (a)(1) specifically permits the 'trustee, mortgagee, or beneficiary, or any of their authorized agents' to institute foreclosure by recording a notice of default." ( Shuster , at p. 512.) It does not require "a judicial action to de termine whether the person initiating the foreclosure process is indeed authorized." ( Gomes, at p. 1155.) Respondents failed to establish that E*Trade was the lawful owner of Attili's note, but they did establish that On eWest was the designated loan servicer under
the deed of trust. As the lender's authoriz ed agent, OneWest had authority to appoint a
successor trustee to institute nonjudicial foreclosure pr oceedings. As the successor trustee, Quality had authority to record the notice of default and notice of tr ustee's sale. ( Shuster, supra, 211 Cal.App.4th at p. 512; see § 2924b, subd. (b)(4) ["A 'person
authorized to record the notice of default or the notice of sale' sha ll include an agent for the mortgagee or beneficiary, an agent of th e named trustee, any pe rson designated in an executed substitution of trustee, or an agent of that subs tituted trustee"].) The note
holder's involvement in the foreclosure is inconsequential. (§ 2924, subd. (a)(1); Shuster , at pp. 511-512.) Moreover, Attili has not shown that he was prejudiced by respondents' actions. ( Debrunner, supra , 204 Cal.App.4th at p. 443.) Attili admits he borrowed $1 million from MortgageIt, pledged the Property as security for the loan and failed to make the required payments. If, as Attili claims, On eWest lacked authority to foreclose, "the true victim was not [Attili] but the origin al lender, which woul d have suffered the unauthorized loss of a $1 m illion promissory note." ( Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.) The purp orted assignments of the note merely
substituted one creditor for another without ch anging Attili's obliga tions, such that the6 foreclosure would have occu rred regardless of the validity of the assignments. ( Herrera
v. Federal Nationa l Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507-1508.) Attili's complaint also alleges that respondents violated section 2923.5, which bars mortgagees, trustees, beneficiaries or authorized agents from filing a notice of default until 30 days after "initia l contact" with the borrower or 30 days after satisfying certain due diligence requirements. Attili did not address that allegation in his opposition to the summary judgment motion. Nor does he cite or refer to se ction 2923.5 in his opening brief. Accordingly, we deem the issue waived on appeal. (See Reyes v. Kosha,

supra , 65 Cal.App.4th at p. 466, fn. 6.) The tr ial court properly concluded that no triable
issues of material fact exis t as to Attili's claims for de claratory relief and wrongful
foreclosure. Promissory Estoppel and Breach of Implied Covenant of Good Faith and Fair Dealing "'The elements of a promissory estopp el claim are "(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and fo reseeable; and (4) the party asserting the estoppel must be injured by his reliance." [Citation.]'" ( Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1672.) Attili bases his promissory estoppel claim on the allegation that IndyMac promised to "offer him a [loan] modification" if he stopped making payments on his loan. The undisputed evidence does not support this allegation. In his separate statement of undisput ed and disputed facts, Attili admitted that "[t]he one or two [IndyM ac] representatives [he] spoke with did not tell him that his
loan would be modified if he defaulted. They only told him that he would not be
considered for a modification unless he defa ulted." After Attili defaulted, OneWest did exactly what the representatives said it woul d do: it considered his request for a loan
modification. In the absence of a "clear and unambiguous" promise to modify his loan, Attili's promissory estoppel theory fails as a matte r of law. (See, e.g., Rumbaua v. Wells Fargo Bank, N.A. (N.D. Cal., Aug. 25, 2011, No. 11-1998SC) 2011 WL 3740828, *57 [rejecting promissory estoppel claim where plaintiff failed to "allege that Defendant promised that if she defaulted on her lo an, she would necessarily qualify for a modification"]; Torres v. Litton Loan Servicing LP (E.D. Cal., Apr. 13, 2011, No. 1:10- cv-01709-OWW-SKO) 20 11 WL 1403059, *2 ["Defendants['] purported promise that Plaintiff's application woul d be 'processed and reviewed ' was not an unambiguous promise that the application would be approv ed, the loan modified, or that foreclosure would not occur"].) By choos ing to default, Attili accepted th e risk that OneWest would deny his request for a modification. The fo reclosure resulted not from OneWest's denial of his request, but from his inability to cure the default after the denial. Lastly, Attili contends that OneWest breached the implied covenant of good faith and fair dealing by failing to ho nor its promise to modify his loan and by wrongfully foreclosing under th e deed of trust. As disc ussed above, the undisputed evidence establishes that OneWest never prom ised Attili a loan modification and that it had authority to initiate for eclosure proceedings. The tria l court appropriately granted summary judgment for respondents.
DISPOSITION The judgment is affirmed. Responde nts shall recover their costs on appeal.
NOT TO BE PUBLISHED.

PERREN, J. We concur:

GILBERT, P. J.

YEGAN, J.8 Tari L. Cody, Judge
Superior Court County of Ventura

________________ ______________
Aidan W. Butler for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallor y & Natsis, Andrew E. Miller and
Rebecca G. Gundzik for Defe ndants and Respondents.