Filed 10/8/13 Cooper v. HSBC Bank CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

BARBARA COOPER et al.,

Plaintiffs and Appellants,

v.

HSBC BANK USA, as Trustee, etc.,

Defendant and Respondent.

 B246455

 (Los Angeles County

 Super. Ct. No. BC466657)

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

James R. Dunn, Judge. Affirmed. 

Barbara Cooper and Ellen Cooper, in pro. per., for Plaintiffs and Appellants. 

Soloman, Grindle, Silveramn & Wintringer, Christopher A. Lidstad and Holly J. 

Nolan for Defendant and Respondent. 

__________________________
2

Barbara and Ellen Cooper (Appellants) seek to unwind the foreclosure of their 

home by HSBC Bank USA as Trustee for MLCC 2007-3 (HSBC). The trial court 

sustained HSBC‟s demurrer without leave to amend. We conclude Appellants lack 

standing to assert their claims against HSBC. The judgment is affirmed.

FACTS

In 2005, Barbara,1and her husband, William Cooper, both in their eighties, held a 

$237,000 mortgage on their home in Los Angeles which they sought to refinance. They 

submitted an application to Jimmy Pereda, who informed them that they did not qualify 

for a loan due to their low credit score. Pereda then convinced the Coopers to transfer 

title of the home to his name. A grant deed was recorded transferring title to Pereda on 

June 23, 2005. He obtained a loan secured by the Coopers‟ home totaling $460,000 in 

2007, thus withdrawing over $200,000 in equity from the home after paying off the 

Coopers‟ original mortgage. That loan was assigned to HSBC on February 3, 2009. 

In 2007, the Coopers sued Pereda and his company for fraud. Pereda‟s company 

had declared bankruptcy and did not participate in the litigation. Pereda entered into a 

global settlement with the Coopers. The settlement terms were entered into the record by 

the trial court. It entitled the Coopers to a sum of $75,000, with $25,000 to be paid by 

December 29, 2008, and twice-monthly payments of $1,388 beginning on January 15, 

2009, until paid in full. If Pereda defaulted on the settlement, the Coopers were free to 

seek an ex parte judgment of $250,000 against him, less any payments made. Pereda also 

agreed to shortsale the home back to the Coopers for $360,000 -- subject to bank 

authorization. William died around the time of the settlement. 

A notice of default on the home was issued on December 5, 2008. HSBC 

executed a nonjudicial foreclosure on the home on October 26, 2009. HSBC then filed 

an unlawful detainer action in Santa Monica Superior Court against Barbara and her 

daughter, Ellen, on December 21, 2010. That matter is currently on appeal. Meanwhile, 

 

1

For convenience, we will refer to the Coopers by their first names.
3

Pereda defaulted on the settlement and a money judgment was entered on November 24, 

2009, against him for $226,829.66. 

Appellants brought suit in pro. per. against Barbara‟s former attorney, Paul 

Gianinni,2and HSBC on August 1, 2011, alleging claims for legal malpractice, 

negligence, fraud, elder financial abuse and breach of fiduciary duty. The bulk of the 

allegations described the fraud committed by Pereda and the malpractice committed by 

Gianinni. In this initial complaint, Appellants alleged that Pereda forged the deed of trust 

transferring title to his name and neither Barbara nor William ever consented to transfer 

title to Pereda. They also alleged that Gianinni coerced Barbara into the settlement at a 

time when she was emotionally vulnerable after William‟s death. Further, that Gianinni 

then misappropriated the funds. The complaint also alleged that as part of the global 

settlement with Pereda, Appellants understood that they could remain in possession of the 

property without payment of rent until it was sold. The complaint further alleged HSBC 

nevertheless began unlawful detainer based on an expired lease and fraudulently sought 

to harass Appellants for back rent. 

A first amended complaint was filed before HSBC‟s demurrer to the initial 

complaint could be heard. This complaint alleged nine causes of action and focused on 

HSBC‟s purportedly wrongful actions. In particular, the SAC alleged that HSBC 

“robosigned” the trustee deed upon sale as well as committed other irregularities 

associated with the foreclosure proceeding. HSBC again demurred and the trial court 

sustained the demurrer with leave to amend. Among other things, the trial court found 

that Barbara and Ellen lacked standing to sue to set aside the trustee‟s sale and to void the 

assignment of the deed of trust because they were not the borrowers under the subject 

deed of trust. 

 

2 Gianinni failed to respond to the pleadings and Appellants filed a request for entry 

of default on the first amended complaint on August 14, 2012. The clerk rejected the 

request for entry of default on the ground that the second amended complaint was filed 

the same day and thus, default could not be entered on the first amended complaint. 

The record does not contain any requests for entry of default on the second amended 

complaint.
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The second amended complaint (SAC) contained even fewer factual allegations. 

In the SAC, Barbara and Ellen alleged causes of action to set aside the trustee‟s sale, to 

void or cancel assignment of the deed of trust, for fraud, to quiet title and for slander of 

title. They alleged that the global settlement reached in the Pereda action was a contract 

of adhesion. Also, Pereda entered into the settlement with no intention of fulfilling its 

terms, particularly the sale of the home back to Barbara. In support of this theory, 

Appellants alleged that HSBC‟s notice of default and election to sell was issued on 

December 5, 2008, ten days before the settlement was reached. Thus, Pereda knew he 

could not short sale the property back to Barbara as promised under the settlement. 

“Plaintiff Barbara Cooper understands that she is no longer bound by the Settlement 

Agreement due to [the] fraudulent[] nature of the contract.” Appellants also alleged 

wrongdoing by HSBC. In particular, Appellants alleged the transfer deed was not signed 

by the person with authority to do so and HSBC did not possess the promissory note. 

The trial court sustained HSBC‟s demurrer to the second amended complaint without 

leave to amend “based on the matters set forth in the moving papers.” Barbara and Ellen 

timely appealed.

DISCUSSION

Appellants portray this as an elder abuse case but did not actually allege an elder 

abuse cause of action in the SAC. While an elder abuse claim was alleged in the initial 

complaint, it was dropped from the first amended complaint and the SAC. This matter 

instead involves a third party‟s attempt to unwind a presumptively valid foreclosure. 

We find Appellants lack standing to challenge the foreclosure proceedings.

In general terms, in order to have standing, the plaintiff must be able to allege 

injury – that is, some “„invasion of the plaintiff‟s legally protected interested.‟ 

[Citations.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175; see Code 

Civ. Proc., § 367 [“Every action must be prosecuted in the name of the real party in 

interest, except as otherwise provided by statute”].) Neither Ellen nor Barbara hold a 

“legally protected interest” in the home.
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Ellen lacks standing because she did not hold title to the home when it was 

transferred to Pereda. That she was a party in HSBC‟s unlawful detainer action merely 

shows that she was a tenant in the home, not a homeowner. Neither was she a party to 

the action against Pereda. The trial court properly sustained the demurrer as to Ellen on 

the grounds she lacked standing.

Although Barbara did at one time hold title to the home, she relinquished any 

claim to that interest when she and William settled their claims against Pereda. Under the 

terms of the settlement, Pereda agreed to pay Barbara and William $75,000. He also 

agreed to attempt to sell the home back to Barbara under a short sale arrangement subject 

to the bank‟s approval. If he failed to pay the $75,000 settlement in full, Barbara was 

entitled to receive an ex parte money judgment in the amount of $250,000, less any 

amount received by Pereda. By entering into this settlement, Barbara acknowledged that 

she no longer held title to the home. She therefore no longer has a “legally protected 

interest” in the home. Even if Appellants are successful in setting aside the foreclosure, 

they have provided no method by which title would automatically revert back to Barbara. 

Appellants attempt to avoid the consequences of the settlement by alleging it is 

void because Pereda never intended to fulfill the terms of the settlement. They also 

allege that the settlement was a contract of adhesion imposed upon Barbara by her former 

attorney at a stressful time. Even if these allegations are true, they are insufficient to 

unwind a valid trustee sale because the remedy for these alleged wrongs lies with Pereda 

and Gianinni, not HSBC. Indeed, Appellants have shown they are aware of their rights 

against Pereda and Gianinni: they have sought and received a money judgment of 

$226,829.66 against Pereda and have sued Gianinni for malpractice. 
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DISPOSITION

The judgment is affirmed. Each party to bear its own costs on appeal.

BIGELOW, P. J.

We concur:

RUBIN, J. 

GRIMES, J.