Filed 9/30/22 Gentry v. Ocwen Financial Corp. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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

CONSTANCE GENTRY,

Plaintiff and Appellant,

v.

OCWEN FINANCI AL COR PORATION et al.,

Defendants and Respondents. B308640

(Los Angeles County Super. Ct. No. 19AVCV00538)

APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge. Affirmed.
Constance Gentry, self

- represented litigant, for Plaintiff and Appellant. Locke Lord, Regina J. McClendon and Meagan S. Tom, for Defendants and Respondents.2 I. INTRODUCTION

Plaintiff Constance Gentry appeals from a judgment of
dismissal entered after a n order su staining a d emurrer in favor
of defendants Ocwen Financial Corporation, Ocwen Loan Servicing, LLC, and Deutsche Bank National Trust Company, as
trustee for the Securitized Asset Backed Receivables LLC Trust

2006

- WM4 (Ocwen defendants)

. 1 We affirm.

1 Plain tiff

’ s notice of appeal states that she appeals from the jud gment entered on “ 8/21/2020

, ” that is, the judgment entered in favor of Ocwen defendants as to the first loan and deed o f trust

. (See K.J. v. Los Angeles Unified School D ist. (202 0) 8 Cal.5th 875, 883 [ order sustaining demurrer is interlocutor y and not

ap pealable, and appeal must be taken from subsequently entered judgment].) Plaintiff did not file a notice of appeal fro m t he Nov ember 16, 2020, judgment entered in favor of de fenda nts Fran klin Management Corporation and Deutsche Bank National Trust Company as c ertifica te trustee on behalf of Bosco Credit II Series 2010

- 1 (Franklin defendants)

. “ ‘ “ [W]here several judgments and/or orders occur ring clo se in time are separately appeala ble (e.g., judgment and order awarding attorney fees), each appealable judgm ent and order must be expressly specified

— in either a single notice of appeal or multip le notices of appeal

— in order to be reviewable on ap peal. ”’ [Citations.] The policy of liber ally construing a notic e of appeal in favor of its sufficiency [citation] do es not apply if the notice is so specific it cannot be read as reaching a judgment or o rder not mentioned at all. ” ( Fi l bin v. Fitzger ald ( 2012) 21 1 Cal.App.4th 154, 173.) Accordi ngly, we will disregard plaintiff’s arguments concerning Franklin defendants and the Fran klin defendants ’ responde nt ’ s brief

.3 II. BACKGROUND

A

. Factual Background 2

On August 17, 2006, plaintiff obtained a $400,000 loan from WMC Mortgage Corp oration

. 3 The loan was memorialized by a first deed of trust (Deed of Trust) secured by plaintiff’s home
in Lancaster ( the P roperty )

. Th e Deed of Tru st named Mortgage Electronic Registrati o n Systems, Inc. (MERS) as the beneficiary. On January 9, 2015, Ocwen Loan Servicing, LLC 4 recorded

a C orporate A ssignment D eed of T rust
, which memorialized
MERS’s transfer o f its beneficial interest und er the Deed o f Trust to Deutsche Bank National Trust Company (Deutsche) , as Trustee for Securitized Backed Receivables LLC Trust 2006

- WM4 ( 2006

- WM4 Trust ) , with Ocwen Loan Servicing, L L C

ser ving as the loan servicing company

. On March 1, 2016, plaintiff a nd Deutsche e ntered into a loan modification agreement (Agreement) , pursuant to which

2 “ In this appeal following the sustai ning of a demurrer, we assume th e truth of the prope rly plea ded factual allegations, facts th at reasonably can be in ferred from t hose expressly pleaded and matters of which judicia l notice has been taken. ” ( Fierro v. Landry’s Restaurant, Inc. (2019) 32 Ca l.App.5th 276, 281.)

3 That sa m e day, plainti ff en tered in to a second loan with WMC Mortgag e Corporation for $100, 000 , which w as memorialized by a second deed of tru st

.

4 Ocwen Loan Servicing, LLC is a subsidiary company of Ocwen Financial C orporation.4

Deutsche forgave a portion of the loan and plaintiff agreed t o make monthly payment s of $2, 090.50 , comprised of $1,599.9 0 in

p r i ncipal and interest and $490.60 in tax and insurance. Plaintiff also agreed that the escrow payment would be adjusted periodically in accordance with applicable law ; and that if she
failed to ob tain insurance and Ocwen obtained the insuran c e in her place, there could be an increase in the escrow portion of th e total monthly payment

. In May 2016, Ocwen defendants billed plaintiff amounts that exceeded $2,090.50

. Pla i ntiff remained “current i n her payments” on the loan.

B. Second Amended Complaint

Plaintiff fil ed her initial complaint on July 22, 2019.
F ollowing various d emurrers and amendments, she filed the

ope rative second a mended complaint on March 2, 2020. As to Ocwen defendants, plaintiff alleged causes of action for breach of contract, fraud, quiet titl e, and slander of title. 5

C

. Demurrer

On April 2, 2020, Ocwen defendants fil ed their demur r er s to the second amended complaint , arguing

, among other things

, that plaintiff failed to state facts sufficient to constitute the alleged cause s of action

. ( Code Civ. Proc., § 430.10, subd. (e)

. )
Plain tiff opposed the demurrer.

5 Plaintiff’s seco nd ca use of a ction was against Franklin defendants for breach of contract pertaining to the seco nd deed of
trust

.5 On August 6, 2020, the trial court sustained Ocwen defendants’ demurrer s without leave to amend. On August 21, 2020, the trial court entered judgment in favor of Ocwen
def e ndants

. P laintiff tim ely appealed from th e judgment.

III. DISCUSSION

A

. Legal Standard

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long

- settled rules. ‘We treat
the demurrer as admitti ng all material f acts properly pleaded,
b u t not contentions , deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ ( Serrano v. Priest (1971) 5 Cal.3d 584, 591 . . . .) Further, we give the comp laint a reasona bl e interpretation,
readin g it as a whole an d its parts i n their context. ( Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 . . . .) When a demurrer is sustained, we determine whether the com plaint
states facts sufficient to c onstitute a cau se of action. (See Hill v

. Miller (1966) 64 Cal.2d 757, 759 . . . .) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by am endment: if it can be, the trial c ourt has abused i ts discretion and we rev e rse; if not,
ther e has been no abuse of discretion and we affirm. ( Kilgore v. Younger (1982) 30 Cal.3d 770, 781 . . . ; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 . . . .) The burden of proving such

reas onable possibil it y is squarely on the pla i ntiff. ( Cooper v

. Leslie Salt Co., supra , [70 Cal.2d] at p. 636.)” ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318 ( Blank ) .)6

B

. Analysis

1. Breach of Contract

“[T] he elements of a cause of action for breach o f contract

are (1) the exis tence of the con t ract, (2) plaint if f’ s perform ance or excuse for nonperformance, (3) defendant ’ s breach, and (4) the resulting damages to the plaintiff. ” ( Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 821.)
In her br each of contrac t cause of a ction, plaintiff alleged
that Ocw en defendants breached the Deed of Trust and Agreement by: concealing and imposing charges that were not owed; failing to provi de prior notice before impos i ng additional charges and fees; adding the cost of len der

- imposed insurance to monthly payments; co llecting on a mounts that “the Lender
waived” ; and concealing the identity of “ the real lender. ” 6
Plaintiff alleged that Ocwen d efendants breac hed the De ed of Trust and Agreement by billing her fo r insurance and

, presumably, thereby colle c ting on “waived” amounts

. Pla intiff

6 Plaintiff alleged Ocwen defend ants violated a “ pooling and servicing agre ement ” but fail ed to allege how any such violat ion b reached the Deed of T r ust and Agreement

. Plaintiff also alleged that Ocwen defendants e ngaged in

“ breaches ” by secu ritizing the loan into a “closed trust” and
t hereby void in g the Deed of Trust

. Plaintiff ’ s allegation that the Deed of Trust was void did not satisfy her obligation to plead the elements of a breach of contract cause of action

, which requires the existence of a contract. ( See Yv anova v. New Century Mor tga g e Cor p

. (2016) 62 Cal.4th 919, 929 [ “ ‘ A void contract is without legal effect. (Rest.2d Contracts, § 7, c om. a

. . . . ) ‘ It b ind s no one and i s a mere nul l ity. ’ [Citation.] ” ] .)7

ignores, however, that t he Agreement , which modified the Deed of Trust, expressly provided that “[t]he escro w payment amoun t may be adjusted periodical ly in accordance with app licable law
due to changes in property taxes, i nsurance amou n ts or other escrow expenses and therefore the total monthly payment may change accordingly.” Moreover, the Agreement permitted Ocw en defendants to increase th e escrow portion of the monthly

paym ent for “force place insurance ” in t he event plai n tiff faile d to
obtain i nsurance. Thus, to the extent plaintiff alleges the additional charges on the escrow payments were in breac h of th e Deed of Trust or th e Agreement, s he has failed to allege sufficien t facts to plea d a claim for breach of contract

. As to her allegation th at Ocwen defendants breached their agreements with plaintiff by failing to provide notice or disclosing
the identit y of “the real lender,” plaintiff failed to identify which provision s of the Deed o f Trust required suc h n o tice or disclosure

. Nor did she a llege how Ocwen defendants breached such provisions. Although plaintiff alleged that the “real lender” was paid in full by third parties

, as we discuss further below in
connection wi th the quiet t i tle cause of action, we do not accept
th is co nclusory alle gation as true. ( Mathews v. Becerra (2019) 8
Cal.5 th 756, 768.) The trial court therefore properly sustained
the demurrer to this cause of action.

2. Fraud

To prevail on a fra ud caus e of act i on, plaintiff must
demonstrate: “ ‘ “ (1) misr epresentation (false representation, concealment, or nondisclosure); (2) knowledge of fals ity (scienter); (3) intent to defraud ( i.e., to induce reliance); (4) justifiable8

reliance; and (5) result ing d ama ge. ”’” ( Behnke v. State Farm
General Ins. Co. (2011 ) 196 Cal.App .4th 1443, 1452

– 1453.) “ ‘ In California, fraud must be pled specifically; gen eral and conclusory allegations do not suffice. [Citations.] “ Thus ‘ “ the policy of liberal construction of th e p leadin g s .

. . will not ordinarily be invoked to sus tain a pleadi ng defective in any material respect. ” ’ [Citation.] [¶] This particularity requirement necessitates pleading f ac ts which ‘ show how, when, where, to whom, and by what means the repr esent ati ons we r e tendered. ’ ” ’ [Citation.] In addition, a p laintiff is h eld to a higher standard in asserting a fraud claim against a corporate defen dant. ‘ In such a case, the plaintiff must “ allege the names of the persons who made the allegedly fraudul ent r epr esenta t ions, their authority to speak, to whom they spoke, what t hey said or wrote, and when it
was said or written. ” ’ ” ( Tenet Healthsystem D esert, Inc. v. Blue Cross of Californi a (2016) 245 Cal.App.4th 821, 837

– 838 ; see Robinson Helicopter Co., Inc. v. Dana C o rp. (2004) 34 Cal.4th 979, 993 .)
In her thir d cause of ac tion

, plaintiff alleged that Ocwen defendants engaged in fraud by “ma [king ] affirmative representations in their terms of the deed of trust that they would comply with all laws gov erning the collection and servicing
of [p] laintiff’s mortgage . . . so that she . . . would not suffer
financial or emotional distress or othe r harm and could keep [her]
home and m ake affordable payments toward [ s ] the same . . . .”
Plaintiff , h ow e ver, has not id entified where in the Deed of Trust
Ocwen defendants mad e this purpor ted representation and our
review of that document reve als no s uch representation

. Further, plaintiff d id not allege who made the representations upon which
she reli ed, w h en those repres entations were made, what was9

said, or how it was said. Thus, she ha s failed to allege her fraud
claim wi th suffi cient specificity. 7

3. Quiet Title

“ A q uiet title act ion is a statutory action that seeks to declare the rights of the pa rties in realty

. [Citations.] ‘ “ ‘ The obj ect of the action is to final ly settle and determine, as between the parties, al l conflicting claims to the property in controve rsy, and to decree to each such interest or estate therein as he may be
entitled to. ’ ” ’ [Citation.] The purpose of a quiet t itle action is to determine any adverse clai m to the property that the defendant

m ay assert, and to declare and define any interes t he ld by the
defe ndant, ‘ “ so that the plaintiff may have a decree finally adjudicatin g the extent of his own interest in the property in

7 For the fraud cause of action, plaintiff also all eged

, in a concl usory manner , that Ocwen defendants committed elder abuse. The Elder Ab u se and Dependent Adult Civil Prote ction Act (Welf

. & I nst. Code

, § 15600, et se q. ) provides for enhanced

reme dies for abuse, including financial abuse, of any Californ ia resident 65 y ears old or o lder. (See Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 4 78.) “ The Act broadly defines financial abu se as occurri n g ‘ when a perso n or entity .

. . [¶] .

. . [ t ] akes , secretes, appropriates, obtains, or retains real or personal

proper ty of an elde r .

. . for a wron gful use or with intent to defraud, or bo t h ’ ( [Welf. & Inst. Code ,] § 15610.30, subd. (a)(1), italics add e d) or ‘ b y undue influence. ’ ( [ I d

. , ] § 15610.3 0, subd. (a)(3).) ” (

Bounds v. Superior Court

, supra , 229 Cal.App.4th at

p

. 4 78 .) Beca use pl aintiff failed to alleg e fac ts indicating that a

wron g ful taking occurred or that Ocwen defendants acted with an intent to def

raud , her allegation of elder abuse fail s

.10

controversy. ” ’ ” (

R obin v. Crowe ll (2020) 55 Cal.App.5th 727, 740;
Cod e Civ. Proc., § 760.020.) In her quiet title ca use of action, pla intiff sought a
declaration that the Deed of Trust was no longer val id and plaintif f was the fee simple owner of the property. Specificall y, plaintiff alleged that the Dee d of Trust was void because the loan was assign e d af

ter the 2006

- WM4 T rust closed. In plaintiff’s view, she therefore is no longer required to pay any mortgage

. “A
b orrower may not, however, quiet title against a secured lender

w ithou t first paying the out standing debt on whic h th e mortgage or deed of trust is based.” ( Lueras v. BAC Ho me Loans Servicing,
LP (201 3 ) 221 Cal.App.4th 49, 86.) Here, plaint iff makes a

con clusory allegation that the “Lender” was fully paid on t he
mortg age b ecause of a lawsuit b rought by the Federal Hous ing Financing Agency a gainst “Defendants” in a federal di strict court in New York, which resulted in “Defendants” receiving o ver $9 million. Plaintiff does not explain how the recov ery in that
la wsuit render e d her mortgage fully paid . Thus, this concluso ry allegation is insufficient to support plaintiff’s quie t claim cause of
action. (See Gutierrez v. Carmax Auto Superstores California (201 8) 19 Cal.App.5th 1234, 1242 [“ The pleader ’ s contentions or conclusi o ns of law are not con trol ling because appellate courts must independently decide questions of law withou t deference to the legal conclusions of the pleader or the trial cou rt ”].)
Plainti ff’s cause of action also fails because a borrower
lacks standing to preemptively challeng e al leged defects in the
M ERS assignment on a deed of trust. ( Saterbak v. JP Morgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814.) 8 The trial

8 P l aintiff’s citation to Glaski v. Bank of America (2013) 218 Cal. App.4th 1079 ( Glask i ) is unavailing. Glaski concerned a11

cour t did not err b y sustaining the demurrer to plaintiff’s q uiet
title cau se of actio n.

4. Slander of Ti tle

“ To establish slander of title, a plaintiff must show: ‘ (1) a publication, ( 2) which is without privilege or justification, (3) which is false, and (4) which c auses direct and immediate pecuniary loss. ’ ” (

Klem v. A ccess Inc. C o

. (2017) 17 Cal.App.5t h
59 5, 612.) In her second amended complaint, p laintiff alleged that
Franklin def

endants, not Ocwen defendants, published a
document that slandered h er title to the P roperty

. Accordingl y, the trial court did no t err by susta ining th e dem urrer to the
slander of title cause of action as to Ocwen defendants

.

5. Remaining Causes of Ac tion

Plaintiff raises several arguments in support of causes of

ac tion alleged in her first amended comp laint to which
defendants success fully de murre d and which plaintiff did not re

allege in the second amended complaint. Plaintiff, however,
failed to include any of the following in the record on appeal: t he
first ame nded complaint, defendants’ demurrer to the first

ame nd ed complaint, pl a intiff’s opp osition, defendants’ reply, and the order sustaining the demurrer. “[I] t is a fundamental principle of appellate procedure that a trial court j udgment is

wrongful foreclosure ( Gla s ki

, supra , 21 8 Cal.A pp.4th at p. 1097)

, and plaintiff does not allege Ocwen d e fendants attemp ted to foreclose on the P roperty

.12

ordinarily presum ed to be correc t and t he burden is on an appellant to demonstrate, on t he basis of t he record presented to the appellate court, that the trial court committed an error that justifies rever sal of the judgment . [Citations.]

. . . ‘ “ A necessary corollary t o this rule is that if t he record is ina dequate for meaningful review, the appellant defaults and the decision of the
trial court should be affirmed. ” ’ [Citation.] ‘ Consequently, [the

ap pellant] has the burden of providing an adequate record. [Citation. ] Failure to p rovid e an adequate record on an issue requires that the issue be reso lved against [the appellant]. ’ ” ( Jameson v. Desta (2018) 5 Cal.5th 594, 608

– 609.) Because plaintiff ha s provided an inadequate record on appea l, we affirm
the trial court ’s rulings as t o the c au ses of action in the first amended complaint wh ich were not re

- alleged in the second amended complaint. 9

9 Plaintiff also makes certain arguments conc erning O cwen defend ants’ motion s to strike portions of the second amended complaint

. N o suc h mot ion s , however, are included in the record on appeal

, and the c ourt apparently foun d that

, in light o f its sustaining of the demurrers

, the motions to strike we re moot

. Pla intiff has raised no argument on appeal as to w hy the motion s to stri ke w ere not moot and has failed t o provide an adequate record for us to review the court’s ruli ng. We therefore d ecline to consider the merits of plaintiffs ’ arguments conce rning the
mot ion s t o strike.13 6. Leave to Amend

Although p laintiff recites that lea ve to amend should be “freely given ” ( e mp hasis omitted )

, sh e doe s not articulat e ho w sh e

can amend t he second amended complaint to survive d emurrer. She has thu s failed to meet her burden on appeal to demonstrate
that the trial court erred in denying her le av e to amend

. ( Bla nk,

supra , 39 Cal.3d at p. 318.)14 IV. DIS POSITION

The judgm ent after an order sustaining a demurrer without
leave t o amend is af

firmed. Ocwen d efendants are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

W e concur:

BAKER

, Acting P. J.

M OOR, J.