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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

CONSTANCE GENTRY,

Plaintiff and Appellant,

v.

OCWEN FINANCIAL 

CORPORATION 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 an order sustaining a demurrer 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 Plaintiff’s notice of appeal states that she appeals from the 

judgment entered on “8/21/2020,” that is, the judgment entered in 

favor of Ocwen defendants as to the first loan and deed of trust. 

(See K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 

883 [order sustaining demurrer is interlocutory and not 

appealable, and appeal must be taken from subsequently entered 

judgment].) Plaintiff did not file a notice of appeal from the 

November 16, 2020, judgment entered in favor of defendants 

Franklin Management Corporation and Deutsche Bank National 

Trust Company as certificate trustee on behalf of Bosco Credit II 

Series 2010-1 (Franklin defendants). “‘“[W]here several 

judgments and/or orders occurring close in time are separately 

appealable (e.g., judgment and order awarding attorney fees), 

each appealable judgment and order must be expressly 

specified—in either a single notice of appeal or multiple notices of 

appeal—in order to be reviewable on appeal.”’ [Citations.] The 

policy of liberally construing a notice of appeal in favor of its 

sufficiency [citation] does not apply if the notice is so specific it 

cannot be read as reaching a judgment or order not mentioned at 

all.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.)

Accordingly, we will disregard plaintiff’s arguments concerning 

Franklin defendants and the Franklin defendants’ respondent’s

brief.
3

II. BACKGROUND

A. Factual Background2

On August 17, 2006, plaintiff obtained a $400,000 loan 

from WMC Mortgage Corporation.

3 The loan was memorialized 

by a first deed of trust (Deed of Trust) secured by plaintiff’s home 

in Lancaster (the Property). The Deed of Trust named Mortgage 

Electronic Registration Systems, Inc. (MERS) as the beneficiary.

On January 9, 2015, Ocwen Loan Servicing, LLC4 recorded 

a Corporate Assignment Deed of Trust, which memorialized 

MERS’s transfer of its beneficial interest under the Deed of 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, LLC 

serving as the loan servicing company.

On March 1, 2016, plaintiff and Deutsche entered into a 

loan modification agreement (Agreement), pursuant to which 

2 “In this appeal following the sustaining of a demurrer, 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 taken.” 

(Fierro v. Landry’s Restaurant, Inc. (2019) 32 Cal.App.5th 276, 

281.)

3 That same day, plaintiff entered into a second loan with 

WMC Mortgage Corporation for $100,000, which was 

memorialized by a second deed of trust.

4 Ocwen Loan Servicing, LLC is a subsidiary company of 

Ocwen Financial Corporation.
4

Deutsche forgave a portion of the loan and plaintiff agreed to 

make monthly payments of $2,090.50, comprised of $1,599.90 in 

principal 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 obtain insurance and Ocwen obtained the insurance in 

her place, there could be an increase in the escrow portion of the 

total monthly payment.

In May 2016, Ocwen defendants billed plaintiff amounts 

that exceeded $2,090.50.

Plaintiff remained “current in her payments” on the loan.

B. Second Amended Complaint

Plaintiff filed her initial complaint on July 22, 2019. 

Following various demurrers and amendments, she filed the 

operative second amended complaint on March 2, 2020. As to

Ocwen defendants, plaintiff alleged causes of action for breach of 

contract, fraud, quiet title, and slander of title.5

C. Demurrer

On April 2, 2020, Ocwen defendants filed their demurrers

to the second amended complaint, arguing, among other things,

that plaintiff failed to state facts sufficient to constitute the 

alleged causes of action. (Code Civ. Proc., § 430.10, subd. (e).) 

Plaintiff opposed the demurrer.

5 Plaintiff’s second cause of action was against Franklin 

defendants for breach of contract pertaining to the second deed of 

trust.
5

On August 6, 2020, the trial court sustained Ocwen 

defendants’ demurrers without leave to amend. On August 21, 

2020, the trial court entered judgment in favor of Ocwen 

defendants. Plaintiff timely appealed from the 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 admitting all material facts properly pleaded, 

but 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 complaint a reasonable interpretation, 

reading it as a whole and its parts in their context. (Speegle v. 

Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 . . . .) When a 

demurrer is sustained, we determine whether the complaint 

states facts sufficient to constitute a cause 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 amendment: if it can 

be, the trial court has abused its discretion and we reverse; if not, 

there 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 

reasonable possibility is squarely on the plaintiff. (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 of contract 

are (1) the existence of the contract, (2) plaintiff’s performance 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 breach of contract cause of action, plaintiff alleged 

that Ocwen defendants breached the Deed of Trust and 

Agreement by: concealing and imposing charges that were not 

owed; failing to provide prior notice before imposing additional 

charges and fees; adding the cost of lender-imposed insurance to 

monthly payments; collecting on amounts that “the Lender 

waived”; and concealing the identity of “the real lender.”

6

Plaintiff alleged that Ocwen defendants breached the Deed 

of Trust and Agreement by billing her for insurance and, 

presumably, thereby collecting on “waived” amounts. Plaintiff 

6 Plaintiff alleged Ocwen defendants violated a “pooling and 

servicing agreement” but failed to allege how any such violation 

breached the Deed of Trust and Agreement.

Plaintiff also alleged that Ocwen defendants engaged in 

“breaches” by securitizing the loan into a “closed trust” and 

thereby voiding 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 Yvanova v. New Century

Mortgage Corp. (2016) 62 Cal.4th 919, 929 [“‘A void contract is 

without legal effect. (Rest.2d Contracts, § 7, com. a . . . .) ‘It 

binds no one and is a mere nullity.’ [Citation.]”].)
7

ignores, however, that the Agreement, which modified the Deed 

of Trust, expressly provided that “[t]he escrow payment amount 

may be adjusted periodically in accordance with applicable law 

due to changes in property taxes, insurance amounts or other 

escrow expenses and therefore the total monthly payment may 

change accordingly.” Moreover, the Agreement permitted Ocwen 

defendants to increase the escrow portion of the monthly 

payment for “force place insurance” in the event plaintiff failed to 

obtain insurance. Thus, to the extent plaintiff alleges the 

additional charges on the escrow payments were in breach of the 

Deed of Trust or the Agreement, she has failed to allege sufficient

facts to plead a claim for breach of contract.

As to her allegation that Ocwen defendants breached their 

agreements with plaintiff by failing to provide notice or disclosing 

the identity of “the real lender,” plaintiff failed to identify which 

provisions of the Deed of Trust required such notice or disclosure. 

Nor did she allege 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 with the quiet title cause of action, we do not accept 

this conclusory allegation as true. (Mathews v. Becerra (2019) 8 

Cal.5th 756, 768.) The trial court therefore properly sustained 

the demurrer to this cause of action.

2. Fraud

To prevail on a fraud cause of action, plaintiff must 

demonstrate: “‘“(1) misrepresentation (false representation, 

concealment, or nondisclosure); (2) knowledge of falsity (scienter); 

(3) intent to defraud (i.e., to induce reliance); (4) justifiable 
8

reliance; and (5) resulting damage.”’” (Behnke v. State Farm 

General Ins. Co. (2011) 196 Cal.App.4th 1443, 1452–1453.) “‘In 

California, fraud must be pled specifically; general and 

conclusory allegations do not suffice. [Citations.] “Thus ‘“the 

policy of liberal construction of the pleadings . . . will not 

ordinarily be invoked to sustain a pleading defective in any 

material respect.”’ [Citation.] [¶] This particularity requirement 

necessitates pleading facts which ‘show how, when, where, to 

whom, and by what means the representations were tendered.’”’ 

[Citation.] In addition, a plaintiff is held to a higher standard in 

asserting a fraud claim against a corporate defendant. ‘In such a 

case, the plaintiff must “allege the names of the persons who 

made the allegedly fraudulent representations, their authority to 

speak, to whom they spoke, what they said or wrote, and when it 

was said or written.”’” (Tenet Healthsystem Desert, Inc. v. Blue 

Cross of California (2016) 245 Cal.App.4th 821, 837–838; see 

Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 

979, 993.)

In her third cause of action, 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 governing the collection and servicing 

of [p]laintiff’s mortgage . . . so that she . . . would not suffer 

financial or emotional distress or other harm and could keep [her]

home and make affordable payments toward[s] the same . . . .” 

Plaintiff, however, has not identified where in the Deed of Trust 

Ocwen defendants made this purported representation and our 

review of that document reveals no such representation. Further, 

plaintiff did not allege who made the representations upon which 

she relied, when those representations were made, what was 
9

said, or how it was said. Thus, she has failed to allege her fraud 

claim with sufficient specificity.7

3. Quiet Title

“A quiet title action is a statutory action that seeks to 

declare the rights of the parties in realty. [Citations.] ‘“‘The 

object of the action is to finally settle and determine, as between 

the parties, all conflicting claims to the property in controversy,

and to decree to each such interest or estate therein as he may be 

entitled to.’”’ [Citation.] The purpose of a quiet title action is to 

determine any adverse claim to the property that the defendant 

may assert, and to declare and define any interest held by the 

defendant, ‘“so that the plaintiff may have a decree finally 

adjudicating the extent of his own interest in the property in 

7 For the fraud cause of action, plaintiff also alleged, in a 

conclusory manner, that Ocwen defendants committed elder 

abuse. The Elder Abuse and Dependent Adult Civil Protection 

Act (Welf. & Inst. Code, § 15600, et seq.) provides for enhanced 

remedies for abuse, including financial abuse, of any California 

resident 65 years old or older. (See Bounds v. Superior Court

(2014) 229 Cal.App.4th 468, 478.) “The Act broadly defines 

financial abuse as occurring ‘when a person or entity . . . [¶] . . . 

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

property of an elder . . . for a wrongful use or with intent to 

defraud, or both’ ([Welf. & Inst. Code,] § 15610.30, subd. (a)(1), 

italics added) or ‘by undue influence.’ ([Id.,] § 15610.30, subd. 

(a)(3).)” (Bounds v. Superior Court, supra, 229 Cal.App.4th at 

p. 478.) Because plaintiff failed to allege facts indicating that a 

wrongful taking occurred or that Ocwen defendants acted with an 

intent to defraud, her allegation of elder abuse fails.
10

controversy.”’” (Robin v. Crowell (2020) 55 Cal.App.5th 727, 740; 

Code Civ. Proc., § 760.020.)

In her quiet title cause of action, plaintiff sought a 

declaration that the Deed of Trust was no longer valid and 

plaintiff was the fee simple owner of the property. Specifically, 

plaintiff alleged that the Deed of Trust was void because the loan

was assigned after the 2006-WM4 Trust closed. In plaintiff’s 

view, she therefore is no longer required to pay any mortgage. “A 

borrower may not, however, quiet title against a secured lender 

without first paying the outstanding debt on which the mortgage 

or deed of trust is based.” (Lueras v. BAC Home Loans Servicing, 

LP (2013) 221 Cal.App.4th 49, 86.) Here, plaintiff makes a 

conclusory allegation that the “Lender” was fully paid on the 

mortgage because of a lawsuit brought by the Federal Housing 

Financing Agency against “Defendants” in a federal district court 

in New York, which resulted in “Defendants” receiving over 

$9 million. Plaintiff does not explain how the recovery in that 

lawsuit rendered her mortgage fully paid. Thus, this conclusory 

allegation is insufficient to support plaintiff’s quiet claim cause of 

action. (See Gutierrez v. Carmax Auto Superstores California

(2018) 19 Cal.App.5th 1234, 1242 [“The pleader’s contentions or 

conclusions of law are not controlling because appellate courts 

must independently decide questions of law without deference to 

the legal conclusions of the pleader or the trial court”].)

Plaintiff’s cause of action also fails because a borrower 

lacks standing to preemptively challenge alleged defects in the 

MERS assignment on a deed of trust. (Saterbak v. JPMorgan

Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814.)8 The trial 

8 Plaintiff’s citation to Glaski v. Bank of America (2013) 218 

Cal.App.4th 1079 (Glaski) is unavailing. Glaski concerned a 
11

court did not err by sustaining the demurrer to plaintiff’s quiet 

title cause of action.

4. Slander of Title

“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 causes direct and immediate 

pecuniary loss.’” (Klem v. Access Inc. Co. (2017) 17 Cal.App.5th 

595, 612.)

In her second amended complaint, plaintiff alleged that 

Franklin defendants, not Ocwen defendants, published a 

document that slandered her title to the Property. Accordingly, 

the trial court did not err by sustaining the demurrer to the 

slander of title cause of action as to Ocwen defendants.

5. Remaining Causes of Action

Plaintiff raises several arguments in support of causes of 

action alleged in her first amended complaint to which 

defendants successfully demurred and which plaintiff did not reallege in the second amended complaint. Plaintiff, however, 

failed to include any of the following in the record on appeal: the 

first amended complaint, defendants’ demurrer to the first 

amended complaint, plaintiff’s opposition, defendants’ reply, and 

the order sustaining the demurrer. “[I]t is a fundamental 

principle of appellate procedure that a trial court judgment is 

wrongful foreclosure (Glaski, supra, 218 Cal.App.4th at p. 1097), 

and plaintiff does not allege Ocwen defendants attempted to 

foreclose on the Property.
12

ordinarily presumed to be correct and the burden is on an

appellant to demonstrate, on the basis of the record presented to 

the appellate court, that the trial court committed an error that 

justifies reversal of the judgment. [Citations.] . . . ‘“A necessary 

corollary to this rule is that if the record is inadequate for 

meaningful review, the appellant defaults and the decision of the 

trial court should be affirmed.”’ [Citation.] ‘Consequently, [the 

appellant] has the burden of providing an adequate record. 

[Citation.] Failure to provide an adequate record on an issue 

requires that the issue be resolved against [the appellant].’” 

(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) Because 

plaintiff has provided an inadequate record on appeal, we affirm 

the trial court’s rulings as to the causes of action in the first 

amended complaint which were not re-alleged in the second 

amended complaint.9

9 Plaintiff also makes certain arguments concerning Ocwen

defendants’ motions to strike portions of the second amended 

complaint. No such motions, however, are included in the record 

on appeal, and the court apparently found that, in light of its 

sustaining of the demurrers, the motions to strike were moot.

Plaintiff has raised no argument on appeal as to why the motions

to strike were not moot and has failed to provide an adequate 

record for us to review the court’s ruling. We therefore decline to 

consider the merits of plaintiffs’ arguments concerning the 

motions to strike.
13

6. Leave to Amend

Although plaintiff recites that leave to amend should be

“freely given” (emphasis omitted), she does not articulate how she 

can amend the second amended complaint to survive demurrer. 

She has thus failed to meet her burden on appeal to demonstrate 

that the trial court erred in denying her leave to amend. (Blank, 

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

IV. DISPOSITION

The judgment after an order sustaining a demurrer without 

leave to amend is affirmed. Ocwen defendants are entitled to 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.