Filed 5/21/15 Munoz v. Deutsche Bank National TrustCA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

RAUL MUNOZ, 

 Plaintiff and Appellant, 

 v. 

DEUTSCHE BANK NATIONAL TRUST 

COMPANY, as Trustee, etc., et al., 

 Defendants and Respondents. 

 G049133 

 (Super. Ct. No. 30-2012-00597286) 

 O P I N I O N 

 Appeal from a judgment and an order of the Superior Court of Orange 

County, Derek W. Hunt, Judge. Affirmed. 

 Raul Munoz , in pro. per., for Plaintiff and Appellant. 

 Chuck Birkett Tsoong, Stephen S. Chuck, Tiffany M. Birkett and Victoria 

J. Tsoong for Defendants and Respondents. 

* * * 
2

 Plaintiff and appellant Raul Munoz1 lost a triplex in foreclosure. He tried 

to block the foreclosure by asserting, inter alia, that the documentation in connection with 

the securitization, pooling, and assignment of his loan was fraudulent. On appeal, he 

maintains that the documentation was improper. Furthermore, for a variety of reasons, he 

asserts that the court erred in sustaining the defendant financial institutions’ demurrers to 

five of his causes of action and in granting their motion for summary judgment as to his 

remaining two causes of action. The court did not err. We affirm. 

I 

FACTS 

A. Appellant’s Allegations and Request for Judicial Notice:

 The following allegations are taken from appellant’s first amended 

complaint. The document descriptions, where indicated, are taken from the documents 

attached to appellant’s request for judicial notice, filed in the trial court. 

 On or about June 8, 2007, appellant signed a promissory note and deed of 

trust in favor of Home Loan Funding, Inc., and Mortgage Electronic Registration 

Systems, Inc. (MERS) was designated as both the “nominee” and the beneficiary of the 

deed of trust. A copy of the deed of trust dated June 7, 2007, securing a promissory note 

in the amount of $602,400, was attached to appellant’s request for judicial notice. It 

identified Home Loan Funding, Inc. as the lender, MERS as both the lender’s nominee 

and the beneficiary, and Fidelity National Title Company as the trustee. 

 According to appellant, around the time he got the loan, Home Loan 

Funding, Inc. “attempted to securitize and sell his loan to another entity[,]” but “[t]hat 

entity was not Deutsche Bank . . . .” (Boldface and italics omitted.) 

 

1 The pleadings, judgment, and loan documentation at issue in this case refer 

to appellant as Raul Munoz. However, appellant filed his notice of appeal and briefing 

on appeal under the name Raul Munoz Ulloa. 
3

 In July 2008, IndyMac Bank was closed by the Office of Thrift 

Supervision. Its assets were transferred to IndyMac Federal Bank. 

 On February 18, 2009, Roger Stotts, vice-president of MERS signed an 

assignment of the deed of trust and the underlying note. Appellant made reference to an 

assignment of deed of trust attached to his request for judicial notice. That assignment of 

deed of trust was signed by Stotts on behalf of MERS as nominee for Home Loan 

Funding, Inc. It stated that MERS as nominee for Home Loan Funding, Inc. assigned 

both its beneficial interest under the deed of trust, and the underlying note, to IndyMac 

Federal Bank. The assignment of deed of trust was recorded on March 6, 2009. 

Appellant disputed both the authenticity and the contents of the assignment. 

 Appellant also made reference to a substitution of trustee, of which he also 

sought judicial notice. That substitution of trustee was dated February 19, 2009, and 

signed by Christina Allen, vice-president of IndyMac Federal Bank. The substitution of 

trustee recited that IndyMac Federal Bank was the current beneficiary under the deed of 

trust, and substituted NDEx West, LLC as trustee under the deed of trust. The 

substitution of trustee was recorded on February 26, 2009. Appellant alleged that Allen 

was not a vice-president of IndyMac Federal Bank and the document was fraudulent. 

 In February 2009, appellant “initiated loan modification negotiation efforts 

with Onewest, [his] subsequent servicer.” In March 2009, the Federal Deposit Insurance 

Corporation (FDIC) sold IndyMac Federal Bank to OneWest Bank. OneWest Bank 

acquired the right to service the mortgages “previously serviced by IndyMac, including 

 . . . the loan at issue in this matter.” 

 Erica A. Johnson-Seck executed an assignment of deed of trust on behalf of 

IndyMac Federal Bank. In support of this assertion, appellant made reference to the copy 

of the assignment of deed of trust attached to his request for judicial notice. That copy 

showed that, on September 15, 2009, Johnson-Seck, as attorney-in-fact for IndyMac 

Federal Bank, assigned all beneficial interest under appellant’s deed of trust to Deutsche 
4

Bank National Trust Company, as trustee of the IndyMac Indx Mortgage Trust 2007-

AR19, Mortgage Pass-through Certificates, Series 2007-AR19 under the Pooling and 

Servicing Agreement dated July 1, 2007. Appellant alleged that Johnson-Seck was not 

the attorney-in-fact for IndyMac Federal Bank, so the assignment was fraudulent. 

 Eventually, appellant and OneWest Bank entered into a custom loan 

modification in December 2010. The modification agreement was recorded on January 

18, 2011. 

 On August 23, 2011, a notice of default was recorded with respect to 

appellant’s loan. In describing appellant’s June 7, 2007 deed of trust securing the loan, 

the notice recited that NDEx West, LLC was the original trustee, substituted trustee, or 

agent for the trustee and that MERS was the beneficiary. It did not recite any subsequent 

history concerning the deed of trust. The notice advised appellant to contact OneWest 

Bank in care of NDEx West, LLC to arrange for payment to stop foreclosure. 

 After receiving the notice of default, appellant sent a series of letters 

addressed to NDEx West, LLC, IndyMac, and Deutsche Bank. He sent a couple of the 

letters to MERS also. Although OneWest Bank responded to one of the letters by 

promising to research appellant’s matter, appellant received no subsequent information 

from OneWest Bank. He received no response at all to most of his letters. 

 Appellant’s property was lost through foreclosure on October 18, 2012. 

The trustee’s deed stated that NDEx West, LLC, as trustee, conveyed the property to 

Deutsche Bank National Trust Company, as trustee of the IndyMac Indx Mortgage Trust 

2007-AR19, Mortgage Pass-through Certificates, Series 2007-AR19 under the Pooling 

and Servicing Agreement dated July 1, 2007. 

B. Procedural History: 

 Appellant, in propria persona, filed a first amended complaint against 

several defendants, including: (1) Deutsche Bank National Trust Company as trustee of 
5

the IndyMac Indx Mortgage Trust 2007-AR19 Mortgage Pass-Through Certificates, 

Series 2007-AR19, under the Pooling and Servicing Agreement dated July 1, 2007 

(Deutsche Bank); (2) IndyMac Mortgage Services, a division of OneWest Bank, FSB 

(OneWest Bank); and (3) MERS, (collectively, respondents).2 The first amended 

complaint was based on the purportedly wrongful sale, by foreclosure, of his triplex in 

Santa Ana, California. 

 It asserted causes of action for (1) declaratory relief, (2) negligence, (3) 

quasi-contract, (4) violation of 12 United States Code section 2605, (5) 15 United States 

Code section 1692 et seq., (6) violation of Business & Professions Code section 17200 et 

seq., and (7) accounting. It sought in excess of $5 million in damages. 

 Deutsche Bank, OneWest Bank3 and MERS filed a demurrer to the entirety 

of the first amended complaint. The court sustained all demurrers by defendant MERS. 

It overruled the other defendants’ demurrers to the third and seventh causes of action. In 

addition, it sustained without leave to amend the other defendants’ demurrers to the first 

and second causes of action. Finally, it sustained with leave to amend their demurrers to 

the fourth, fifth and sixth causes of action. Appellant did not file a second amended 

complaint to amend the fourth, fifth and sixth causes of action. 

 Deutsche Bank, OneWest Bank and MERS thereafter filed a motion for 

summary judgment. The court granted the motion and entered summary judgment. 

Appellant filed a notice of appeal from the summary judgment. 

 

2 The lawsuit was dismissed without prejudice as against a fourth defendant, 

NDEx West, LLC, due to lack of service of process. 

3 Respondents, including OneWest Bank, filed an answer to the first 

amended complaint in which they stated OneWest Bank had been erroneously sued as its 

division, IndyMac Mortgage Services. 
6

II 

DISCUSSION 

A. Scope of Appeal:

 Respondents claim the ruling on the demurrer is not before us on appeal. 

They explain that appellant did not file an appeal with respect to that ruling and they say 

it is too late for him to do so now. Consequently, they conclude appellant’s appeal is 

untimely as to that ruling. They are in error. “An order sustaining a demurrer is 

interlocutory and not appealable. [Citation.] The appeal must be taken from a 

subsequent judgment of dismissal. [Citation.]” (Conley v. Roman Catholic Archbishop 

(2000) 85 Cal.App.4th 1126, 1130.) Appellant had no opportunity to challenge the ruling 

on the demurrer until the judgment of dismissal was entered and his challenge is not 

untimely. 

 Respondents also fault appellant for his failure to mention the ruling on the 

demurrer in his notice of appeal. However, Code of Civil Procedure section 906 provides 

that “the reviewing court may review the verdict or decision and any intermediate ruling, 

proceeding, order or decision which involves the merits or necessarily affects the 

judgment or order appealed from or which substantially affects the rights of a party . . . .” 

(See also George Ball Pacific, Inc. v. Coldwell Banker & Co. (1981) 117 Cal.App.3d 

248, 253, fn. 4.) That being the case, we will review the ruling on the demurrer in the 

matter before us. 

B. Demurrer: 

 (1) Standard of review— 

“We independently review the ruling on a demurrer and determine de novo 

whether the complaint alleges facts sufficient to state a cause of action. [Citation.] We 

assume the truth of the properly pleaded factual allegations, facts that reasonably can be 

inferred from those expressly pleaded, and matters of which judicial notice has been 
7

taken. [Citation.] We construe the pleading in a reasonable manner and read the 

allegations in context. [Citation.] We affirm the judgment if it is correct on any ground 

stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]” 

(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) 

 “If we conclude the complaint fails on any grounds stated in the demurrer, 

we must then consider whether there is a ‘“reasonable possibility”’ the complaint’s 

defect(s) can be cured by an amendment. [Citation.]” (Jenkins v. JPMorgan Chase 

Bank, N.A. (2013) 216 Cal.App.4th 497, 506.) “The burden of proving the reasonable 

possibility of such a curative amendment falls ‘“‘squarely on the plaintiff.’ [Citations.]” 

[Citations.]’ [Citation.]” (Id. at p. 507.) 

(2) Merits— 

 Appellant cites Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 

391 at page 397, which provides: “A general demurrer admits the truth of all material 

facts alleged in the complaint.” He says that respondents have, therefore, admitted all the 

alleged facts and the only question is whether the alleged facts support a claim. He 

contends that they do. 

 (a) Declaratory relief 

 With respect to his first cause of action, appellant says he seeks 

“Declaratory Relief as to whether the Deed of Trust (Mortgage) secures any obligation of 

[his] in favor of Deutsche Bank, MERS, and Onewest, such that either of them can 

collect [his] mortgage payments, demand payment or have Ndex engage in debt 

collection activities.” Declaratory relief is not available in this context. 

 In his first amended complaint, appellant alleged that his property was lost 

through foreclosure. Indeed, he attached a copy of the trustee’s deed upon sale as exhibit 

H. Appellant has not explained why, considering the lien of his deed of trust has been 

foreclosed, there is any remaining question as to whether the deed of trust provides 

continuing security. 
8

 Moreover, as respondents noted in their demurrer, the court generally does 

not provide declaratory relief with respect to past acts, where no future conduct between 

the parties is at issue. (Cardellini v. Casey (1986) 181 Cal.App.3d 389, 397-398.) 

Appellant now cites an unpublished federal court decision in Schafer v. CitiMortgage, 

Inc. (C.D. Cal., June 15, 2011, No. 11-03919) 2011 U.S. Dist. Lexis 64558. If we 

consider this unpublished decision as persuasive authority (Gomes v. Countrywide Home 

Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155, fn. 6), we observe that it had to do with a 

motion to dismiss under Federal Rules of Civil Procedure, rule 12(b)(6), and in particular 

with the application of the federal Declaratory Judgment Act (28 U.S.C. § 2201(a)). An 

analysis of whether a federal court should dismiss a declaratory relief cause of action 

under the Declaratory Judgment Act is not germane to the analysis of whether it was 

proper to sustain a demurrer as to a declaratory relief cause of action under California 

law. Appellant has not shown that his declaratory relief cause of action could be 

amended so as to state a viable cause of action under California law. (Cardellini v. 

Casey, supra, 181 Cal.App.3d at pp. 397-398.) 

 (b) Negligence

 The negligence cause of action contains allegations that appear to be taken 

from a stock complaint. It alleges, inter alia, that respondents “breached [their] duty by 

colluding to lure Plaintiffs into [a] predatory loan that [respondents] knew or should have 

known Plaintiff would default on[,]” and that he had suffered harm, including having 

been “forced to borrow excessive amounts of money, having the equity stripped from 

their home and, now, facing foreclosure.” Yet appellant premised his action on the 

allegation that he did not borrow from any of respondents, inasmuch as they were “thirdparty strangers” to his loan, and that his property had already been lost through 

foreclosure. 

 In any event, in their demurrer, respondents noted that a negligence cause 

of action must be based on a duty. They cited Nymark v. Heart Fed. Savings & Loan 
9

Assn. (1991) 231 Cal.App.3d 1089 at page 1096, wherein the court stated that “as a 

general rule, a financial institution owes no duty of care to a borrower when the 

institution’s involvement in the loan transaction does not exceed the scope of its 

conventional role as a mere lender of money.” 

 Appellant now acknowledges that this is a correct statement of law. 

However, he emphasizes that a financial institution may owe a duty of care to a borrower 

when its involvement does exceed the scope of its conventional role as a mere lender of 

money. He cites Ansanelli v. JP Morgan Chase Bank, N.A. (N.D. Cal., Mar. 28, 2011, 

No. C10-03892) 2011 U.S. Dist. Lexis 32350, another unpublished decision, wherein the 

court held that the plaintiffs had sufficiently alleged a duty of care where the lender had 

offered the borrowers a trial loan modification plan, with a guarantee that if they made 

the modified payments on time for three months they would receive a permanent loan 

modification, but the lender reneged on the deal even after the borrowers had fulfilled 

their part of the bargain. The court concluded that the defendants had adequately alleged 

that the lender’s involvement in the loan transaction had indeed exceeded “‘the scope of 

its conventional role as a mere lender of money. . . .’” (Id. at p. *21.) We observe that 

this case has been criticized in several others. (See, e.g., Casault v. Fannie Mae (C.D. 

Cal. 2012) 915 F.Supp.2d 1113; Bunce v. Ocwen Loan Servicing, LLC (E.D. Cal., July 

17, 2013, No. CIV 2:13-00976) 2013 U.S. Dist. Lexis 100111.) Anyway, the case before 

us is distinguishable. 

 Appellant says his first amended complaint shows he “initiated loan 

modification negotiation efforts with Onewest” and that his applications “for several loan 

modifications . . . were all . . . denied without further explanation . . . .” However, this is 

not what his first amended complaint says. Rather, in his first amended complaint 

appellant alleged that he sought a loan modification from OneWest Bank in February 

2009, and eventually obtained one, in December 2010. He further alleged that the 

modification agreement was recorded on January 18, 2011. A copy of the recorded 
10

modification agreement was attached as exhibit A to his first amended complaint. So, in 

his first amended complaint, appellant alleged that he sought and obtained a loan 

modification. We see nothing here to show that the lender acted other than in “its 

conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan 

Assn., supra, 231 Cal.App.3d at p. 1096.) 

 (c) Statutory violations 

 (i) correspondence 

 Next, appellant lumps most of his remaining causes of action together, and 

says respondents could not properly foreclose because they fabricated an assignment of 

deed of trust and falsely represented to him and the court that they had the right to take 

his property away. He contends respondents committed a number of statutory violations 

and he bases his arguments on a series of letters he sent after receiving OneWest Bank’s 

August 23, 2011 notice of default. 

 On September 11, 2011, appellant sent a “VALIDATION OF DEBT 

NOTICE” to NDEx West, LLC, IndyMac Mortgage Services, and Deutsche Bank 

National Trust Company. He asked for: (1) information concerning the nature of the 

debt; (2) an explanation of the manner in which they calculated the money owing; (3) 

certified copies of documents showing that he agreed to pay the asserted monies owing; 

(4) a copy of any applicable judgment; (5) the identity of the original creditor and the 

name and address of the current owner of the loan; (6) proof that the statute of limitations 

had not expired; (7) proof that they were licensed to collect in the state; and (8) their 

license numbers and registered agent. Remarkably, the letter declared: “If you do not 

answer within a reasonable amount of time, you accept this offer of full satisfaction of 

said loan concerning the deed of trust . . . and its note, and an officer will be appointed to 

record a reconveyance on your behalf.” 

 On October 28, 2011, appellant sent a further inquiry entitled 

“QUALIFIED WRITTEN REQUEST, COMPLAINT, DISPUTE OF DEBT & 
11

VALIDATION OF DEBT LETTER, FOIA REQUEST, SIGNATURE REVOCATION, 

and AFFIDAVIT.” (Underscoring omitted.) That letter contained a barrage of requests 

for information. Among other things, appellant demanded the receipt of documents 

identified in 22 different categories, and posed 20 generic questions on late fees, four 

general questions on debit and credit information, and three broad questions about 

accounting and servicing systems. He asked, for example, for respondents to identify 

each “accounting and servicing system used by [them] and any sub-servicers or previous 

servicers from the inception of this account to the present date . . .” and to “provide the 

name and address of the company or party that designed and sold the system.” 

 In addition, in his “QUALIFIED WRITTEN REQUEST,” appellant 

purported to unilaterally impose upon respondents the granting by them of an unlimited 

power of attorney in him to endorse their names “upon any instrument in satisfaction of 

the obligation(s) of this REQUEST/AGREEMENT or any agreement arising from this 

agreement.” Furthermore, it advised respondents: “If you fail to satisfy the demand 

within the allotted time after having been duly served with this Qualified Written 

Request, then by Tacit Procuration [Appellant] . . . will determine for you and each of 

you, [that you] concur and are satisfied with the justness of the demand . . . .” Finally, by 

his “QUALIFIED WRITTEN REQUEST,” appellant purported to “revoke and withdraw 

any and all power and authority in the matter of [respondents]” with respect to his loan 

and to revoke their status as trustees or beneficiaries. 

 On March 23, 2012, appellant sent another “VALIDATION OF DEBT 

NOTICE,” substantially similar to his letter of September 11, 2011. Finally, on June 5, 

2012, appellant sent a “DEMAND TO CEASE AND DESIST ACTIVITIES OF 

PURPORTED DEBT.” (Underscoring omitted.) In that demand letter, appellant recited, 

inter alia, that he had received no response to his prior three letters, that respondents had 

failed to validate the debt, and that the foreclosure proceedings were unlawful. 
12

 A trustee’s deed upon sale was recorded on October 18, 2012. 

 (ii) 12 U.S.C. § 2605(e) (RESPA) 

 In his first amended complaint, appellant asserted that OneWest Bank 

failed to comply with 12 United States Code section 2605(e) by timely responding to his 

correspondence. In a garbled allegation, appellant asserted: “Onewest failed to comply 

because On November 29, 2011 one month after Onewest responded to [his] request but 

informed [him] that Onewest would research the inquiry concerning the mortgage loan.” 

He continued on: “However, Onewest has not sent any response to plaintiff’s qualified 

written request and Plaintiffs inquiries are still unanswered.” 

 In the demurrer, respondents asserted that appellant’s correspondence did 

not constitute a “qualified written request,” within the meaning of 12 United States Code 

section 2605(e)(1)(A), to which they were required to respond. They further asserted that 

even if they were required to respond, appellant had not stated a viable claim under 12 

United States Code section 2605(e) because he had failed to allege actual harm. 

 Title 12 United States Code section 2605(e)(1)(A) provides: “If any 

servicer of a . . . mortgage loan receives a qualified written request from the borrower . . . 

for information relating to the servicing of such loan, the servicer shall provide a written 

response acknowledging receipt of the correspondence within 5 days . . . .” Title 12 

United States Code section 2605(e)(1)(B) defines “a qualified written request” as “a 

written correspondence . . . that— . . . (ii) includes a statement of the reasons for the 

belief of the borrower, to the extent applicable, that the account is in error or provides 

sufficient detail to the servicer regarding other information sought by the borrower.” 

 Here, appellant did not state that he believed his account was in error. 

Rather, he demanded that respondents prove they owned his promissory note. In 

addition, he sought information about such things as accounting systems and requested 

copies of a myriad of documents, including those pertaining to the securitization and 

pooling of his loan, the transfers of his loan, and the servicing of his loan. We question 
13

whether his seemingly endless and most assuredly burdensome request for information 

fell within the spirit of 12 United States Code section 2605(e)(1)(A). Nonetheless, while 

it is a close call, we do not conclude that appellant failed to provide “sufficient detail to 

the servicer regarding other information sought by the borrower.” (12 U.S.C. 

§ 2605(e)(1)(B).) That is not the end of our inquiry, however. 

 Title 12 United States Code section 2605(f) states, “Whoever fails to 

comply with any provision of this section shall be liable to the borrower for each such 

failure in the following amounts: [¶] . . . [¶] In the case of any action by an individual, an 

amount equal to the sum of— [¶] (A) any actual damages to the borrower as a result of 

the failure . . . .” 

 “Asserting a defendant’s failure to respond to a [qualified written request] 

and the suffering of general damages is insufficient to state a claim under RESPA. 

[Citation.] Instead, federal courts have read 12 United States Code section 2605 as 

requiring a plaintiff to plead specific facts showing both the defendant’s failure to 

respond and the plaintiff’s suffering of ‘pecuniary damages’ in order to avoid the 

dismissal of his or her RESPA claim. [Citations.] In effect, this pleading requirement 

has limited RESPA claims to circumstances in which a plaintiff can allege specific facts 

to show causation—‘“actual damages to the borrower as a result of the failure [to comply 

with RESPA requirements].”’ [Citation.]” (Jenkins v. JPMorgan Chase Bank, N.A.,

supra, 216 Cal.App.4th at pp. 531-532.) 

 In his first amended complaint, appellant stated he had “suffered actual 

damages, including but not limited to devastation of their credit, monetary damages, and 

threatened foreclosure of their home” and that he had “been damaged in an amount to be 

proven at trial.” However, he did not explain how the failure to provide a timely 

response to his request for documents, such as copies of the documents pertaining to loan 

securitization, pooling, transfer, and servicing, had caused a devastation of his credit, 

monetary damages or foreclosure (either threatened or completed). “Federal district 
14

courts have found sufficiently pled actual damages include the assertion of concrete 

harms cause by the RESPA violation itself, not harms generally resulting from a 

plaintiff’s default and the foreclosure of his or her home.” (Jenkins v. JPMorgan Chase 

Bank, N.A., supra, 216 Cal.App.4th at p. 532.) 

 (iii) 15 U.S.C. § 1692e 

 Appellant’s fifth cause of action was for violation of 15 United States Code 

section 1692, et seq. Although appellant did not cite a particular statute, he quoted 

snippets of language clearly taken from 15 United States Code section 1692e. 

 That statute provides in pertinent part that, “A debt collector may not use 

any false, deceptive, or misleading representation or means in connection with the 

collection of any debt. Without limiting the general application of the foregoing, the 

following conduct is a violation of this section: [¶] . . . [¶] (2) The false representation 

of--[¶] (A) the character, amount, or legal status of any debt . . . . [¶] . . . [¶] (5) The 

threat to take any action that cannot legally be taken . . . .” (15 U.S.C. § 1692e.) 

 Appellant alleged each of the respondents had committed fraud as 

prohibited by federal law by misrepresenting that the debt was due and owing to 

Deutsche Bank as an innocent purchaser for value when the debt had not been validly 

assigned to Deutsche Bank. In their demurrer, respondents asserted that the cause of 

action, which they characterized as one for fraud, failed for lack of specificity. They 

argued appellant was required to specify “the ‘who, what, when, were, and how of the 

fraud.’ [Citation.]” They emphasized that where there are multiple defendants, the 

plaintiff was required to describe for each defendant the nature of his participation in the 

fraud. 

 We agree. Appellant’s bare allegations that each of the respondents falsely 

represented that the debt was owing to Deutsche Bank, as an innocent purchaser for 

value, that they threatened to engage in legally impermissible collection activities, and 

that they tried to collect on the debt through the false pretense of claiming Deutsche Bank 
15

was an assignee, “are too conclusory, vague and confusing to give each ‘defendant fair 

notice of what the . . . claim is and the grounds upon which it rests.’ [Citation.]” 

(Burnett v. Mortgage Electronic Registration (10th Cir. 2013) 706 F.3d 1231, 1240.) 

Appellant has simply offered “vague alleged acts . . . with zero details or concrete 

examples. [Citation.]” (Ibid.) In other words, from the first amended complaint, “we 

cannot tell which defendant is alleged to have done what, nor can we tell what the 

misconduct was. [Citation.]” (Ibid.) That is to say, we do not know if the respondents 

were alleged to have made their misrepresentations via letters, faxes, e-mails, telephonic 

communication, or some other method. We also do not know what persons were alleged 

to have made misrepresentations on behalf of which of the respondents, and when. 

 (iv) Business & Professions Code § 17200 

 In his sixth cause of action, appellant asserted that respondents had violated 

Business & Professions Code section 17200 et seq., which is commonly known as the 

“unfair competition law.” (Jenkins v. JPMorgan Chase Bank, N.A., supra, 216 

Cal.App.4th at p. 520.) The unfair competition law “‘“‘borrows’ violations of other laws 

and treats them as unlawful practices” that the unfair competition law makes 

independently actionable. [Citation.]’ [Citation.]” (Ibid.) Appellant alleged that 

respondents had violated a number of state and federal statutes and, therefore, had also 

violated of the unfair competition law. 

 Appellant described the unlawful conduct as: (1) “executing and recording 

false and misleading documents; [fn. omitted]” (2) “executing and recording documents 

without the legal authority to do so;” (3) “failing to disclose the principal for which 

documents were being executed and recorded . . . ;” (4) “demanding and accepting 

payments for debts that were non-existent;” (5) “violating the Security First Rule;” (6) 

reporting payments as late to credit bureaus without the legal right or authority to do so;” 

(7) acting as a beneficiary without the legal authority to do so, and;” (8) “other deceptive 

business practices . . . .” 
16

 In their demurrer, respondents argued that appellant’s allegations were 

insufficient to establish a viable claim under the unfair competition law for several 

reasons. Notably, they asserted that appellant had failed to allege causation. 

 To bring a claim under the unfair competition law, a plaintiff must “‘(1) 

establish a loss or deprivation of money or property sufficient to qualify as an injury in 

fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., 

caused by, the unfair business practice . . . that is the gravamen of the claim.’ [Citation.]” 

(Jenkins v. JPMorgan Chase Bank, N.A., supra, 216 Cal.App.4th at p. 521.) We are 

concerned here with the second requirement. Where a plaintiff defaults on his or her loan 

and then loses his or her property through foreclosure, the loss of the property is caused 

by the plaintiff’s default, not the defendant’s allegedly wrongful actions. In that case, the 

plaintiff “cannot show any of the alleged violations have a causal link to [the] economic 

injury” and the sustaining of a demurrer to the unfair competition law cause of action is 

proper. (Id. at p. 523.) 

C. Summary Judgment: 

(1) Standard of review— 

 “‘Under summary judgment law, any party to an action, whether plaintiff or 

defendant, “may move” the court “for summary judgment” in his [or her] favor on a 

cause of action . . . or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff 

“contend[ing] . . . that there is no defense to the action,” a defendant “contend[ing] that 

the action has no merit” (ibid.). The court must “grant[]” the “motion” “if all the papers 

submitted show” that “there is no triable issue as to any material fact” (id., § 437c, subd. 

(c))—that is, there is no issue requiring a trial as to any fact that is necessary under the 

pleadings and, ultimately, the law [citations]—and that the “moving party is entitled to a 

judgment as a matter of law” (Code Civ. Proc., § 437c, subd. (c)).’ [Citation.]” 

(Willemsen v. Mitrosilis (2014) 230 Cal.App.4th 622, 626.) 
17

 “‘[I]n moving for summary judgment, a “defendant . . . has met” his [or 

her] “burden of showing that a cause of action has no merit if” he [or she] “has shown 

that one or more elements of the cause of action . . . cannot be established, or that there is 

a complete defense to that cause of action. Once the defendant . . . has met that burden, 

the burden shifts to the plaintiff . . . to show that a triable issue of one or more material 

facts exists as to that cause of action or a defense thereto. . . .” (Code Civ. Proc., § 437c, 

subd. [(p)(2)].)’ [Citation.]” (Willemsen v. Mitrosilis, supra, 230 Cal.App.4th at p. 626, 

fn. omitted.) “The plaintiff . . . may not rely upon the mere allegations or denials of its 

pleadings to show that a triable issue of material fact exists but, instead, shall set forth the 

specific facts showing that a triable issue of material fact exists as to that cause of action 

or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) 

 “On review of a summary judgment, we ‘examine the record de novo and 

independently determine whether [the] decision is correct. [Citation.]’ [Citation.]” 

(Willemsen v. Mitrosilis, supra, 230 Cal.App.4th at p. 626.) 

(2) Merits— 

 (a) allegations supporting remaining causes of action 

 After the demurrers were sustained, the only causes of action remaining 

were the causes of action for quasi-contract and an accounting. In his cause of action for 

quasi-contract, appellant asserted: “Deutsche, MERS, and Onewest knowingly accepted 

payments and retained them for [their] own use knowing that [they] did not acquire an 

interest in Plaintiffs Note, such that they could accept or keep Plaintiffs payments. It 

would be inequitable for Deutsche, MERS, and Onewest to retain the payments [they] 

received from Plaintiff which [they] did not have legal authority to collect.” Similarly, in 

his cause of action for an accounting, appellant asserted that he had made his mortgage 

payments to Deutsche Bank, OneWest Bank, and MERS for about two years, but that 

they were not actually entitled to any of that money because they never had an interest in 
18

his loan. So, he argued, they were required to return the money to him and they owed 

him an accounting to show the amount of money to be returned. 

 (b) motion for summary judgment 

In their motion for summary judgment, respondents asserted, inter alia, that 

through various assignments of appellant’s note and deed of trust, as well as the right to 

service the same, they had acquired all the rights to collect the monies owing under the 

note and deed of trust and to foreclose. In support of their motion, respondents filed an 

index of exhibits. The exhibits consisted of copies of documents intended to show the 

rights of respondents to collect the monies owing under appellant’s note and deed of trust 

and to foreclose. They included copies of eight recorded documents appellant himself 

already had provided to the court, either as attachments to his request for judicial notice 

or as exhibits to his first amended complaint: (1) the deed of trust securing appellant’s 

note; (2) the assignment of deed of trust executed by Johnson-Seck; (3) the assignment of 

deed of trust executed by Stotts; (4) the substitution of trustee executed by Allen; (5) the 

modification agreement between appellant and IndyMac Mortgage Services, a division of 

OneWest Bank; (6) the notice of default; (7) the notice of trustee’s sale; and (8) the 

trustee’s deed. 

 Respondents also provided copies of a Master Purchase Agreement by and 

among the FDIC as conservator for IndyMac Federal Bank, IMB Holdco LLC, and 

OneWest Bank Group LLC, dated March 18, 2009, and a Servicing Business Asset 

Purchase Agreement by and between the FDIC as receiver for IndyMac Federal Bank and 

OneWest Bank, dated March 19, 2009.

 In addition to the foregoing, respondents filed the declaration of their 

attorney, Victoria J. Tsoong. Tsoong identified each of the above-referenced documents, 

by recording information where applicable, and stated true and correct copies were 

attached to the index of exhibits. In addition, she explained that, pursuant to the Master 

Purchase Agreement and the Servicing Business Asset Purchase Agreement, “OneWest 
19

acquired substantially all of the assets, including the servicing rights to the loan at issue 

in this action, from [IndyMac Federal Bank] by and through its receiver the FDIC. 

OneWest, including through its servicing division IndyMac Mortgage Services . . . is the 

current servicing agent on behalf of Deutsche [Bank].” 

 Respondents also filed the declaration of Charles Boyle, a vice-president of 

OneWest Bank. In his declaration, Boyle stated OneWest Bank was the mortgage 

servicer for appellant’s loan and was the attorney-in-fact for Deutsche Bank, the 

beneficiary under the deed of trust. Boyle described the business records practices of 

OneWest Bank’s mortgage servicing business and noted that “IndyMac Mortgage 

Services [was] the servicing division of OneWest, and [was] not a separate legal entity 

from OneWest.” Boyle stated he had examined the relevant business records, and he 

outlined the chain of events as described in the documents attached to the index of 

exhibits, including the various assignments and substitutions, appellant’s default, and the 

foreclosure. 

 (c) opposition 

 Appellant filed his own declaration in support of his opposition to the 

motion for summary judgment. Interestingly, he admitted that he received a July 6, 2007 

letter from Home Loan Funding, Inc. notifying him that the mortgage servicing was 

being transferred to IndyMac Bank. He also acknowledged having received a letter dated 

October 30, 2012 from OneWest Bank in response to appellant’s October 11, 2012 letter 

to the Consumer Financial Protection Bureau. Appellant himself described the letter as 

“[giving] a full accounting of how the loan [had] progressed including a history of the 

loan modification,” the default and the foreclosure. He attached a copy of the letter 

describing the chronology of events and explaining why, contrary to appellant’s 

assertion, IndyMac Mortgage Services had the right to foreclose on the property and 

would not rescind the foreclosure sale. The letter from OneWest Bank reiterated, inter 

alia, that Home Loan Funding, Inc. had transferred the servicing of his loan to IndyMac 
20

Bank, and that when IndyMac Bank was closed, the loan servicing rights were sold to 

IndyMac Mortgage Services, a division of OneWest Bank. 

 Appellant questioned how this information made sense in light of the 

purported assignment of deed of trust from IndyMac Federal Bank to Deutsche Bank, 

signed by Johnson-Seck as attorney-in-fact. He wondered how it was possible that 

OneWest Bank and Deutsche Bank could both own his note and deed of trust and to 

whom he really should have been making his payments. 

 Furthermore, in the body of his opposition to the motion for summary 

judgment, appellant objected to the declarations of Tsoong and Boyle as being 

inadmissible. He asserted that their declarations could not have been based on personal 

knowledge. 

 Appellant did not raise his objections to the declarations orally at the 

hearing on the motion. However, he did remind the court, in a vague manner, that there 

were “many irregularities that he mentioned in his opposition . . . .” The court did not 

rule on the objections contained in the body of his opposition. 

 (d) waiver 

 On appeal, appellant reiterates his objections to the Tsoong and Boyle 

declarations. However, respondents claim the objections are waived on appeal, because 

appellant did not properly present his objections in the trial court. (Reid v. Google, Inc. 

(2010) 50 Cal.4th 512, 527, 531.) They are correct. 

 As the Supreme Court in Reid v. Google, Inc., supra, 50 Cal.4th 512 stated, 

“evidentiary objections made ‘at the hearing shall [not] be deemed waived’ ([Code Civ. 

Proc.,] § 437c, subd. (b)(5)), even if the trial court fails to rule on them expressly.” (Reid 

v. Google, Inc., supra, 50 Cal.4th at p. 527, fn. omitted.) It then proceeded to address 

“how and when evidentiary objections must be made to be deemed made ‘at the hearing,’ 

under section 437c, subdivision (b)(5) and (d).” (Reid v. Google, Inc., supra, 50 Cal.4th 

at p. 527.) It concluded, “the California Rules of Court govern. [Citations.]” (Id. at p. 
21

531.) It cited “current rule 3.1352 [which] states: ‘A party desiring to make objections to 

evidence in the papers on a motion for summary judgment must either: [¶] (1) Submit 

objections in writing under rule 3.1354; or [¶] (2) Make arrangements for a court reporter 

to be present at the hearing.’” (Reid v. Google, Inc., supra, 50 Cal.4th at p. 531.) It also 

noted that “current rule 3.1354 require[s] written objections to be served and filed before 

the hearing. [Citation.]” (Reid v. Google, Inc., supra, 50 Cal.4th at p. 531.) 

 We observe that California Rules of Court, rule 3.1354(a) requires that “all 

written objections to evidence in support of or in opposition to a motion for summary 

judgment . . . must be served and filed at the same time as the objecting party’s 

opposition or reply papers are served and filed.” Rule 3.1354(b) specifies: “All written 

objections to evidence must be served and filed separately from the other papers in 

support of or in opposition to the motion. . . . Each written objection must be numbered 

consecutively and must: [¶] (1) Identify the name of the document in which the specific 

material objected to is located; [¶] (2) State the exhibit, title, page, and line number of the 

material objected to; [¶] (3) Quote or set forth the objectionable statement or material; 

and [¶] (4) State the grounds for each objection to that statement or material. . . .” 

Furthermore, rule 3.1354(c) requires the “party submitting written objections to evidence 

[to] submit with the objections a proposed order” and specifies the required form of the 

order. 

 In this case, appellant failed to comply with California Rules of Court, rule 

3.1354. He did not file and serve objections separate from his opposition. Moreover, the 

objections contained within the body of his opposition did not satisfy the remaining 

requirements of the rule. Inasmuch as appellant’s written objections were not made in 

accordance with rule 3.1354, we conclude they were not “made at the hearing” within the 

meaning of Code of Civil Procedure section 437c, subdivisions (b)(5) and (d). Given 

that, and the fact that the court did not rule upon them, the objections have not been 

preserved on appeal. (Reid v. Google, Inc., supra, 50 Cal.4th at pp. 531-532.) 
22

 (e) analysis 

 We nonetheless address whether respondents met their burden to raise a 

complete defense to appellant’s remaining two causes of action. 

 Respondents’ evidence showed that MERS, as nominee for Home Loan 

Funding, Inc., assigned the note and beneficial interest in the deed of trust to IndyMac 

Federal Bank, in February 2009. It further showed that, in March 2009, the FDIC as 

receiver for IndyMac Federal Bank transferred substantially all of the assets of IndyMac 

Federal Bank, including loan servicing rights, to OneWest Bank. Both Tsoong and Boyle 

declared that appellant’s deed of trust and the right to service his loan were among the 

specific assets transferred. So, the evidence showed that OneWest Bank, through its 

mortgage servicing division IndyMac Mortgage Services, was the servicer for appellant’s 

loan, and thus had the right to collect the monies owing thereunder and to foreclose 

following appellant’s default. Consequently, respondents raised a complete defense to 

appellant’s causes of action for quasi-contract and an accounting. 

 The burden then shifted to appellant to raise a triable issue of material fact. 

In his opposition to the motion for summary judgment, appellant acknowledged the 

transfer of assets from IndyMac Federal Bank to OneWest Bank, the servicing of his loan 

by OneWest Bank, and the modification of his loan by OneWest Bank. However, he 

called attention to the assignment of deed of trust signed by Johnson-Seck, as giving rise 

to confusion in the chain of title. 

 As we recall, on September 15, 2009, Johnson-Seck, as attorney-in-fact for 

IndyMac Federal Bank, executed an assignment of deed of trust by which IndyMac 

Federal Bank purportedly assigned the beneficial interest in the deed of trust to Deutsche 

Bank National Trust Company, as trustee of the IndyMac Indx Mortgage Trust 2007-

AR19, Mortgage Pass-through Certificates, Series 2007-AR19 under the Pooling and 

Servicing Agreement dated July 1, 2007. This was after the date of the Master Purchase 
23

Agreement by which the FDIC agreed to transfer IndyMac Federal Bank assets to 

OneWest Bank. 

 In reviewing the evidence to determine Johnson-Seck’s authority to execute 

the assignment of deed of trust, we find a copy of a limited power of attorney attached to 

Boyle’s declaration. The limited power of attorney, given by the FDIC as receiver for 

IndyMac Federal Bank, authorized the attorney-in-fact to execute documents on behalf of 

the receiver. However, it is unclear that this particular limited power of attorney 

authorized Johnson-Seck to execute the assignment in question. And, we do not know if 

a different power of attorney gave her the requisite authority. 

 So, we can see why the assignment executed by Johnson-Seck raised 

confusion as to the owner of the beneficial interest in the deed of trust as of the date of 

foreclosure. There was a question whether the assignment was defective, and thus, 

whether the beneficial interest in the deed of trust had been properly transferred to 

Deutsche Bank as trustee of the mortgage trust or whether it remained with OneWest 

Bank, which had acquired the assets of IndyMac Federal Bank. But either way, OneWest 

Bank, through its mortgage servicing division IndyMac Mortgage Services, remained the 

servicer entitled to collect appellant’s payments and to foreclose. This being the case, 

appellant failed to raise a triable issue of material fact with respect to his causes of action 

for quasi-contract and an accounting. 

 As a closing note, appellant has not shown how the question regarding the 

legal effect of the Johnson-Seck assignment could have prejudiced him. 4 He was 

required to pay the monies owing under the note and deed of trust to the loan servicer in 

any event. Moreover, since OneWest Bank and Deutsche Bank are both parties to the 

litigation, and each of them claims the money was properly paid to the loan servicer, 

 

4 We also note that, to the extent appellant has raised additional issues for the 

first time in his reply brief, we do not consider them. (Schubert v. Reynolds (2002) 95 

Cal.App.4th 100, 108.) 
24

neither of them can come forward in the future and claim otherwise. “Absent any 

prejudice, [appellant has] no standing to complain about any alleged lack of authority or 

defective assignment. [Citations.]” (Siliga v. Mortgage Electronic Registration Systems, 

Inc. (2013) 219 Cal.App.4th 75, 85.) 

 The court did not err in granting the motion for summary judgment. 

III 

DISPOSITION 

 The order and judgment are affirmed. Respondents shall recover their costs 

on appeal. 

 

 MOORE, J. 

WE CONCUR: 

RYLAARSDAM, ACTING P. J. 

THOMPSON, J.