Filed 1/27/14 Sporn v. JP Morgan Chase Bank CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALAN R. SPORN, Plaintiff and Appellant,

v.
JPMORGAN CHASE BANK N.A. , et al., Defendants and Respondents. G047501
(Super. Ct. No. 30

- 2010

- 00420922)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed.

Garcia & Phan, Robert N. Phan, Juan D. Garcia; Law Offices of Richard L. Antognini and Richard L. Antognini for Plaintiff and Appellant.

AlvaradoSmith, John M. Sorich, S. Christopher Yoo and Jenny L. Merris
for Defendant s and Respondents.

* * *2 Plaintiff Alan R. Sporn appeals from th e sustaining of a demurrer without leave to amend to his second amended complaint (SAC) against defendants JPMorgan Chase Bank, N.A. (Chase) and California Reconveyance Company (CRC). He claims he pleaded sufficient facts to state causes of action for wro ngful foreclosure, violation of
Civil Code section 2923.5 1 , unfair competition (Bus. & Prof. Code, § 17200 et seq.; UCL), and cancellation of documents. We disagree and affirm.

FACTS AND PROCEDURAL HISTORY In 2006 plaintiff borrowed not quite $2 million (Loan) to refinance residential real property in Laguna Hills (Property). He executed a note (Note) secured by a trust deed (Trust Deed) in favor of Washington Mutual Bank (WaMu) as lender and beneficiary. CRC was the trustee. Although apparently not di rectly alleged, in his brief, citing to the Note and Trust Deed , plaintiff states WaMu was also the servicing agent.

Plaintiff alleges that in 2006 WaMu sold his Note and d eed as part of a pool
to the “‘ WaMu Mortgage Pass

- Through Certificates Series 2006

- AR 18 Trust ’” (Trust). 2 He pleads WaMu ’ s S ecurity E xchange C ommission filings raised “ many issues, concerns, and violations, including lack of standing to proceed with the non

- judicial
foreclosure. ” The SAC alleges that in 2008 the Federal Deposit Insu rance Corporation (FDIC) was appointed as receiver of WaMu. On the same date, pursuant to a purchase and assumption agreement (Purchase Agreement) , Chase acquired WaMu ’ s loan portfolio
from the FDIC . The Purchase Agreement set a settlement date for closing but gave the receiver the authority to extend it. Subsequently, the FDIC did extend the “ Final Settlement to August 30, 2010. ” (Boldface omitted.)

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

2 Plaintiff did not attach a copy of the Trust to the SAC. He did include it as part of his motion for reconsideration of the ruling on the demurrer. The trustee for the Trust was LaSalle Bank National Association.3 Plaintiff alleges on information and belief th at as of the date he filed the SAC, Chase ’ s purchase of WaMu ’ s assets under the Purchase Agreement was not complete and therefore Chase had “ been servicing loans and other assets of WaMu without any proper authority. ” P laintiff also pleads Chase failed to record its assignment (FDIC Assignment) of plaintiff ’ s Trust D eed from the FDIC

. Therefore , Chase was not the beneficiary of record and had no rights or powers associated with the Note and Trust
Deed.
On May 19, 2009 Chase assigned all interest in the N ote and Trust Deed (Chase Assignment) to Bank of America National Association (BofA) as successor by merger to LaSalle Bank N ational A ssociation as trustee for the Trust. The Chase Assignment bore the signature of Deborah Brignac as vice

- president of Chas e. The Chase Assignment was allegedly void because Chase had not record ed the FDIC Assignment of the Note and Trust Deed.

Immediately after the Chase Assignment was recorded, Brignac on behalf of Chase, acting as agent for B ofA as trustee of the Trust, r ecorded a substitution of trustee naming CRC as the trustee (Substitution of Trustee). This Substitution of Trustee was allegedly also ineffective because neither Brignac nor Chase had authority to execute
it. On May 20, 2009, after plaintiff had default ed on his L oan, CRC recorded a Notice of Default and Election to Sell (NOD) showing an arrearage of approximately $65,000. When plaintiff failed to cure the default, in April 2010 3 CRC recorded a Notice
of Trustee ’ s Sale (Notice of Sale) signed by Brignac as v ice

- p resident. Brignac ’ s

3 Plaintiff alleges the date was Marc h 15.4

signature was allegedly forged. In September 2010 CRC recorded a second Notice of
Trustee ’ s Sale. 4

In October 2010 plaintiff filed a complaint against defendants and the mortgage brokers who obtained plaintiff ’ s L oan, to which the parties filed demurrers. Plaintiff filed a first amended complaint before the hearing on the demurrers. The parties ’ demurrers to the first amended complaint were sustained with leave to amend.

Subsequently plaintiff filed the SAC alleging cau ses of action for fraud, to declare the Note and Trust Deed void, breach of fiduciary duty , intentional infliction of emotional distress, declaratory relief, quiet title, wrongful foreclosure, violation of section 2923.5, and unfair competition, seeking re stitution, damages, civil penalties, cancellation of documents, and to enjoin foreclosure.

The court sustained the demurrer without leave to amend and, after denying plaintiff ’ s motion for reconsideration, entered judgment. We will discuss only four caus e of action : wrongful foreclosure, violation of section 2923.5, cancellation of documents, and unfair competition , because those are the ones plaintiff pursues on appeal. The
relevant allegations of the se causes of action are set out below.
DISCUSSION
1

. Introduction

“ When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint ’ s properly pleaded or implied factual allegations. [Citation.] ” ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) But we do not assume the truth of speculative allegations ( Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th

4 This document was attached to defendants’ request for judicial notice filed with the demurrer. Plaintiff filed an opposition to the request. The record contains no ruling but we presume the request was granted because in their briefs the partie s discuss documents included in the request.5

307, 318) or “ contentions, deductions or conclusions of law ” ( Aubry v. Tri

- City Ho spital
Dist. (1992) 2 Cal.4th 962, 967). “ [W]e give the complaint a reasonable interpretation, and read it in context. [Citation.] ” ( Schifando , at p. 1081.) If the demurrer can be sustained on any ground raised, we must affirm. ( Ibid .)
2

. Wrongful Foreclosure

The gravamen of this cause of action is the claim defendants had no authority to record the NOD and Notice of Sale or foreclose on the Property . This is
based on several allegations , some of which are unclear or contradictory . The se include: 1) the Note and d eed were sold to the Trust before WaMu went into receivership and were not included in the assets the FDIC sold to Chase; 2) Chase did not receive a recorded assignment of the Trust Deed and was not a beneficiary thereof and thus could not assign its interest to the Trust, in violation of section 2932.5 5 ; 3) in the absence of the assignment of the Trust Deed to Chase, Chase could not exercise the power of sale in the
Trust Deed ; 4) Chase ’ s assignment of the Trust Deed to the T ru st in May 2009 was
invalid because the “ cut

- off date ” for a loan to be transferred to the pool was December 1, 2006; 5) Brignac was never authorized to execute the Substitution of Trustee; 6) Brignac ’ s signature on the Notice of Sale was forged; and 7) the NOD was premature

5 Section 2932.5 states: “ Where a power to sell real property is given to a mortgagee, or other encumbrancer , in an instrument intended to secure the payment of money, the power is part of the security and ve sts in any person wh o by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded. ” (Italics added.) This section does not apply to a deed of trust. ( Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 518 ( Jenkins ) .) Further, plaintiff did not raise this as an issue in the argument dealing with wrongful foreclosure in either of his briefs. Therefore, if he intended to rely on this as a basis for reversal, the claim is forfeited. ( Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)6

because defendants failed to meet and confer with plaintiff as required under section
2923.5. 6 Based on these claims, plaintiff alleges none of the defendants can prove it
owns the Note or is a beneficiary under the Trust Deed and th erefore cannot lawfully
foreclose. None of these allegations suffices to support a cause of action for wrongful foreclosure. Preliminarily, plaintiff has not allege d there has been a sale of the P roperty, generally an element of a wrongful foreclosure ca use of action. ( Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062 [elements of wrongful foreclosure cause of action are illegal or fraudulent sale of property pursuant to deed of trust, harm to plaintiff , and plaintiff ’ s tender of debt amount or excuse therefrom].)

Where there has been no sale, without specific allegations of irregularity, a plaintiff has no standing to challenge a foreclosure based on a claim the party commencing the process is not authorized to do so.

In Gomes v. C ountrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 ( Gomes ), the court considered and rejected claims similar to those plaintiff raises here. The plaintiff, who had executed a note and deed of trust and subsequently defaulted on the note, sued for wro ngful foreclosure. He alleged the note had been sold and the current owner was unknown and had not authorized the foreclosure. In affirming the order sustaining the demurrer , the appellate court pointed to sections 2924 through
2924k , describing them as constituting a “‘ comprehensive framework for the regulation of a nonjudicial foreclosure sale pursua n t to a power of sale contained in a deed of trust ’ [citation]

. . . [that] ‘ cover[s] every aspect of exercise of the power of sale contained in a
deed of trust. ’ [Citation.] ” ( Gomes , at p. 1154.)

6 Plaintiff included a separate cause of action based specifically on an alleged violation of section 2923.5. As set ou t below the cause of action is insufficient. For the same reasons it does not support a claim for wrongful foreclosure.7 Due to the “‘ exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the [nonjudicial] foreclosure

statute. ’ [Citation s .] ” ( Gomes, supra, 192 Cal.App .4th at p. 1154.) Gomes held there is no authority to “ in ter

ject the courts into this comprehensive nonjudicial scheme ” by allowing a party to file a suit to determine whether the party initiating the foreclosure has been properly authorized to do so by t he owner of the note. ( Ibid .)

Moreover, section 2924, subdivision (a)(1) states a notice of default may be recorded by “ a ‘ trustee, mortgagee, or beneficiary, or any of their authorized agents. ’ ”

“ [N]owhere does the statute provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and we see no ground for implying
such an action. [Citation.] [T]he recognition of the right to bring a lawsuit to determine
a nominee ’ s authorization to proceed wi th foreclosure on behalf of the noteholder would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures. ” ( Gomes, supra, 192 Cal.App.4th at p. 115 5.)

For the same reason , plaintiff ’ s claim Chase never purchased his L oan from
WaMu fails. If Chase did not buy it, it rema ined in the Trust. 7 Further, p ursuant to the Purchase Agreement, Chase specifically purchased “ all mortgage servicing rights ” of WaMu, including the right to service plaintiff ’ s L oan. Under section 2924, subdivision (a)(1) Chase, as the servicer, had the right to initiate the foreclos ur e.

In his reply brief, plaintiff tries to overcome this fact by claiming Chase
could not act as the servicer because neither it nor the Trust owned the loan. Plaintiff devotes pages to the argument that only a beneficiary may initiate a foreclosure. I n this case the Trust Deed does provide the Lender is the beneficiary. But this argument
confl icts with the SAC, where, by virtue of the allegation the Trust owned the Loan at the

7 If the Loan remained in the Trust, the allegation that Chase did not validly assign the Loan to the Trust fails.8

time the assets were transferred to Chase, plaintiff has pleaded the Trust owns the Loan. 8
And Chase is the servicer.

Plaintiff points to cases that state a party may p lead a wrongful foreclosure action if the complaint alleges specific facts showing the foreclosure was not in itiated by the correct person. ( Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 ( Glaski ); Jenkins, supra , 216 Cal.App.4th 497, 518; Gomes, s upra , 192 Cal.App.4th 1149 .) Plaintiff has not alleged any specific facts supporting such a claim and t hese cases do not save plaintiff ’ s cause of action. B oth Jenkins and Gomes refused to allow a cause of action to proceed on facts similar to those in the instant case

.

In Glaski , the plaintiff

- borrowers made the same allegation as plaintiff here, i.e., the assignments of a loan to a trust were invalid because they were made after the closing date set out in the securitized trust ag reement. The complaint alleged the
defendants could not foreclose. The court allowed this cause of action to proceed, despite the fact the plaintiffs were not parties to the agreement, ruling , under New York law, the trust could not accept the transfer. ( Glaski, supra , 218 Cal.App.4th at p p

. 1096

- 1097 .)
Glaski has been called “ an outlier ” ( Sandri v. Capital One, N.A. (Bankr. N.D.Cal. 2013) ___B.R. ___, ___ [2013 WL 5925655, p. *4] ( Sandri ) and, as set out in Sandri , most California federal district cour t cases have criticized it or declined to follow it

. ( Ibid .)

The majority of cases hold that borrowers have no standing to sue based on alleged noncompliance with a pooling and service agreement if they are not parties or third party beneficia ries of the agreement. (E.g., Jenkins, supra , 216 Cal.App.4th at p.

8 Plaintiff’s reliance on Mena v. JPMorgan Chase Bank , N.A. (N.D.Cal., Sept. 7, 2012, No. 12

- 1257 PSG) 2012 WL 3987475 is not well taken. There the court found WaMu had transferred the plaintiff’s note and trust deeds to WaMu Asset Acceptance Corporation. ( Id . at p. *1.) Plaintiff suggests this could have happened to his loan because, according to Mena , WaMu often made such transfers. We found nothing in Mena to support this last claim and it is irrelevant to the case before us in any event. Further, it is pure speculation and not sufficient to support a cause of action. In addition, it is contrary to the allegations in the SAC.9

515 [borrower has no standing to enforce pooling agreement]; Hosseini v. Wells Fargo Bank, N.A. (N.D.Cal. , Aug. 9, 2013 , No. C

- 13

- 02066 DMR ) 2013 WL 4279632, p. *3 [the plaintiff lacked standing to challenge the process even where securitized trust allegedly dissolved before loan transferred thereto]; Junger v. Bank of Am erica ., N.A., (C.D.Cal. , Feb. 24, 2012 , No. CV 11

– 10419 CAS (VBKx)), 2012 WL 603262, pp. *1, 3 [where the plaintiff not party to po oling agreement, could not challenge alleged failure to timely transfer the note to the trust]; Almutarreb v. Bank of New Yo r k Trust Co., N.A. (N.D .Cal

. , Sept. 24, 2012, No. C 12

- 3061 EMC ) 2012 WL 4371410, p. *2 [the plaintiff had no standing to raise claim transfer of loan beyond closing date; argument “soundly rejected by courts” ; listing similar cases].) We believe the majority view is the better

one

. As to the alleged invalidity of the Substitution of Trustee naming CRC as

trustee , the claim is im material. CRC was the original trustee under the Trust Deed.

And even assuming one or more of plaintiff ’ s allegations was sufficient , plaintiff still failed to allege a viable wrongful foreclosure cause of action. To recover in a wrongful foreclosure ac tion, a plaintiff must also plead “ the alleged imperfection in the foreclosure process was prejudicial. ” ( Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal .App.4th 256, 272.) “ Prejudice is not presumed from ‘ mere irregularities ’ in the process. [Citatio n.] ” ( Ibid .)

Siliga v. Mortgage Electronic Registration Systems , Inc. (2013) 219
Cal .App.4th 75 is instructive . There, the plaintiff made allegations similar to those here. The court affirmed an order sustaining a demurrer wi thout leave to amend, stating,

“ Absent any prejudice, the [plaintiffs] have no st anding to complain about any alleged lack of authority or defective assignment. [Citations.] ” ( Id . at p. 85 .)

As in Siliga p laintiff has not alleged how he was prejudiced b y any defect
with the assignment or that he was harmed at all

. He does not contend he is not in default
under the Note and Trust Deed . In fact, he still owes the amount due under the n ote and10

has been living in the P roperty without making any payments si nce his default, which occurred sometime prior to May 2009 when the NOD was recorded. Plaintiff does not allege the foreclosure proceedings by defendants prevented him from paying the N ote or curing his default. He does not plead another potential owner of the L oan made demand on him for payment or would not have foreclosed upon his default. Thus, because plaintiff has not shown prejudice, his cause of action must fail.

In his reply brief plaintiff t akes an entirely different tack, raising other
issues for the first time. Preliminarily we note we need not address new issues not argued in the opening brief. ( Mansur v. Ford Motor Co. (2011) 197 Cal .App.4th 1365, 1387

- 1388.) Even if we consider them on the merits, however, plaintiff does not prevail.

R elying on the fact the P roperty has not been sold, plaintiff claims the Homeowners Bill of Rights and particularly section 2924, subdivision (a)(6 ) applies. It

states: “ No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee o r the substituted trustee under the deed of trust, or the designated agent o f the holder of the beneficial intere st. No agent of the
holder of the beneficial interest under th e mortgage o r deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting with in the scope of authority
desi g n a t ed by the holder of the beneficial interest. ” ( Ibid .) But t his statute became effective January 1, 2013 and does not apply because the foreclosure was already
initiated before that date

. ( Rockridge Trust v. Wells Fargo, N.A. (N.D.Cal. 2013) ___ F.Supp.2d ___, ___ [2013 WL 5428722, p. * 28] [Homeowners Bill of Rights not retroactive].) In a related argument plaintiff points to the 2012 National Settlement Agreement in which Chase allegedly promised to advise a defaulting borrower it has the right to foreclose and ensure it has an interest giving it the right to foreclose. This was11

not pleaded and even had it been , it has no bearing on whether this cause of action is
sufficient. Alternatively, plaintiff states that “ [i]f nothing else, ” he has a declaratory
relief cause of action because neither Chase nor the Trust owns the Loan. A necessary element of a declaratory relief cause of action is the existence of an “‘ actual , present controversy over a proper subject.’ [Citati on.]” ( City of Cotati v. Cashman (200 2 ) 29 Cal.4th 69, 79.) We review whether there is an actua l, present controversy de novo ( County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 606 ) and conclude plaintiff has no viable cause of action.

Plaintiff contends it is necessary to determine whether “ the proper party is foreclosing ” and asserts he can amend his pleading to allege damages. This include s the
loss of the P roperty to a stranger that has no power to foreclose. But the facts already alleged, as discussed above, undercut that claim . Likewise, that the P roperty is unique is not a sufficient basis to allege damages.

Plaintiff argues that “ if

” he was to seek a modification of the Loan or pay off the Loan through refinancing he must deal with the owner of the L oan . He also suggests that “ if

” he sells the P roperty he will need to convey clear title.
All of these claims are speculative. He has not asserted he attempted to or actually seeks in the future a modification, or payoff , refinance, or sell the P roperty

.

“ [E] ven if any subsequent transfers of the promissory note were invalid, [plaintiff] is not
the victim

. . . because [his] obli gations under the note remain[] unchanged.

. . . [P laintiff]

. . . may not assume the theor etical claims of hypothetical transferors and
transferees for the purposes of showing a ‘ controversy of concrete actuality. ’ [Citation.] ” ( Jenkins, supra, 216 Cal.App.4th at p. 515.)

Moreover, plaintiff continues to ignore the fact the Loan is in default and he has not offered to cure the default or pay off the Loan. This is a fatal defect to a cause of
action for both wrongful foreclosure and declaratory relief.12

3

. Violation of Section 2923.5

Pursuant to section 2923.5 when a trustor is i n default, before recording a
notice of default the lender must contact the borrower “ to assess the borrower ’ s financial situation and explore options for the borrower to avoid foreclosure. ” (§ 2923.5, subd. (a)(2).) The statutory requirement is satisfie d, even if the lender is unable to contact the borrower, if the lender exercises “ due diligence ” as defined. (§ 2923.5, subd. (e).)

Plaintiff alleges defendants did not assess his financial situation or explore workout options and further pleads defendan ts did not exercise due diligence.
Defendants counter that their notice of default, as apparently judicially noticed in the trial court, contains a declaration that due diligence was exercised and thus the demurrer was properly sustained. We disagree.

I n Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047 a similar argument was made by the defendant. The court held that although it could take judicial notice of the existence of the declaration of due diligence, it could not take judicial notice of its contents. ( Id . at p. 1057.) The complaint alleged the declaration was false and facts judicially noticed may not dispose of issues unless they are undisputed. ( Ibid .) Further, the declaration of due diligence was conclusory, stating only that it had been exercised without setting out the actual actions taken. ( Ibid .)

But that does not mean this cause of action can stand. The only remedy for violation of section 2923.5 is a postponement of the foreclosure sale to comply with the

statute . ( Intengan v. BAC Home Loans Servicing LP, supra, 2 14 Cal.App.4th at p. 1058, fn. 4; Skov v. U.S. Bank National Assn. (2012) 207 Cal.App.4th 690, 696; Sandri , supra,

__ _B.R. ___, ___ [2013 WL 5925655 at p. *6].)

Here defendants have complied. As noted by the trial court at the hearing on the demurrer and as shown in the register of actions, the parties participated in a loan
modification settlement conference. The court pointed out the parties had represented to the court they had been in discussions to settle the case by modifying the loan and had13

produced documents “ necessary to proceed with the loan modification review. ” They had also signed a stipulation to that effect. On that basis the court sustained the demurrer to the cause of action for violation of section 2923.5 as moot, because plaintiff had

“ obtained the only relief available. ” We agree with this conclusion.

Plaintiff ’ s arguments to the contrary have no merit. First, he claims, without support i n the record, Chase did not attend two mandatory settlement conferences. But this directly contradicts the trial court ’ s statements at the hearing, statements plaintiff ’ s counsel did not dispute at the time. Plaintiff also states, “ Nothing was accomplish ed. ” But the statute does not require results, only an attempt.

Finally, we are not persuaded that a loan modification conference during litigation is insufficient to satisfy the statute. Intengan , Skov , and Sandri limit a
borrower ’ s remedy to postponem ent of a foreclosure sale pending compliance with the statute. Here the parties attempted to work out a solution to avoid foreclosure. This was done before any foreclosure sale. Thus, the demurrer to the cause of action for violation
of section 2923.5 w as properly sustained without leave to amend.
4

. Unfair Competition

For a private plaintiff to have standing to bring a UCL c laim, he must allege an injury in fact and damages, i.e., lost money or property resulting from
defendants ’ wrongful conduct. (B us. & Prof. Code, § 17204.) To plead standing, a party

must “ (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury , and (2) show that that economic injury was the result of, i.e., caused by the unfair business practice or false advertising that is the gravamen of
the claim. ” ( Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322. )

A review of the SAC shows plaintiff has not pleaded any damages or injury
in fact. The closest he comes is an allegation that defendants ’ alleged wrongful practices

“ have caused substantial harm to California consumers. ” This is not sufficient to support a UCL cause of action. ( Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545,14

1554 [damages must be “‘“ concrete and particularized ” ’” and “‘ “‘ actual or imminent, not

“ conjectural ” or “ hypothetical ” ’” ’” ]; Hutchins v. Bank of America, N.A . (N.D.Cal. , Oct. 28, 2013, No. 13

- cv

- 03242

- JCS) 2013 WL 5800606, p. *13 [in wrongful foreclosure action, complaint dism issed because the plaintiff failed to plead he suffered economic injury caused by the defendant ’ s alleged wrongful conduct] ; Ellis v. Bank of America,
N.A . (C.D.Cal. , Oct. 28, 2013, No. CV 13

- 5257

- CAS

- (AGRx) ) 2013 WL 5935412, p. *4 [insufficient allegation of damages where no foreclosure sale] .) Even plaintiff ’ s briefs are devoid of any claimed damages. The court correctly sustained
the demurrer to this cause of action without leave to amend.
5

. Cancellation of Written Instrument

Plaintiff pleads the Trust Deed , Chase Assignment, Substitution of Trustee (substituting CRC for CRC), NOD, and Notice of Sale “ are void, as they were not contrived to create an interest in [d]efendants. ” In his brief plaintiff argues the Notice of
Sale “ is an apparent forger y ” (boldface omitted) because it was not “ properly notarized [or] signed ” (underscoring omitted) by Brignac on behalf of Chase. He further contends a comparison of her signatures on the Assignment of Trust Deed and Substitution of Trustee with her signature on the Notice of Sale shows the signature on the latter was forged. H e also relies on a press release issued by a registrar of deeds in Massachusetts and attached to his declaration in support of his motion for reconsideration, which dubs Brignac a robo

- signer. None of these contentions or arguments suffice s to support a v alid
cancellation cause of action.

A similar contention was made in Cerecedes v. U.S. Bankcorp (C.D.Cal. , July 11, 2011, No. CV 11

- 219 CAS (FMOx)) 2011 WL 2711071. The court found the
robo

- signing allegations insufficient because “ pled in a conclusory fa shion without any factual support. ” ( Id . at p. *5.) The court also noted a more important fact that the plaintiffs did not challenge their loan was in default or that they had received all the contested documents, as is the case here. ( Ibid .)15 In Sandri, supra , ___B.R. ___, [2013 WL 5925655] the original lender and trustee pooled the plaintiff ’ s “ mortgage ” and transferred it to a trust, as was allegedly done here. When the plaintiff defaulted on her note, MERS, the alleged beneficiary and
lender ’ s nomine e, executed an assignment of the trust deed to the defendant. The defendant subsequently record ed a substitution of trustee. The same person signed both of those documents. The plaintiff alleged that person was a rob o

- signer who lacked authority to sign on behalf of MERS.

The court affirmed dismissal of the fraud count based on the alleged robo

signing, because the defendant did not dispute she was in default on her loan. Sandri,

supra, ___B.R. ___ [2013 WL 5925655 at p. *3].) 9

Many other cases reach the same conclusion. (E.g., Ruiz v. SunTrust Mortgage, Inc . (E.D.Cal ., July 24, 2012, No. CV F 12

- 0878 LJO BAM) 2012 WL 3028001, p. *8 [complaint “ fails to establish how alleged ‘ robo

- signing ’ precludes foreclosure of the property ” ]; Lee v. Mortgage Elect ronic Registration Systems, Inc

. (D.Haw. , June 27, 2012, Civil No. 10

- 00687 JMS BMK) 2012 WL 2467085, p. *5 [robo

signing allegations “ wholly speculative and therefore fail to state a plausible claim ” ].)

Moreover, plaintiff failed to plead how he was dam aged by the alleged
robo

- signing, as is required. (Lee v. Mortgage Electronic Registration Systems, Inc.,

supra , 2012 WL at p. *5; Nastrom v. New Century Mortgage Corp. (E.D.Cal. , June 8, 2012, No. 1:11cv01998 DLB) 2012 WL 2090145, p. *5.) The majority o f cases hold a homeowner has no standing to challenge robo

- signatures because the loss of property through foreclosure, as plaintiff here alleges, is not caused by robo

- signing but instead by plaintiff ’ s default. ( Javaheri v. JPMorgan Chase Bank, N.A. ( C.D.Cal. 2012, No. 2:10

- cv

9 In dicta, the court also noted MERS had “ authority to assign mortgage instruments or to appoint successor trustees, even afte r the original promissory note [had] been assigned to a trust pool. [Citations.] ” ( Sandri, supra , ___B.R. ___ [2013 WL 5925655 at p. *3, fn. 4].)16

08185

- ODW (FFMx)) 2012 WL 3426278, p. *6 [even assuming rob o

- signing allegation true, the plaintiff had no standing to raise challenge without “ a concrete and particularized injury that is fairly traceable to ” the challenged docu ment].)

This cause of action does not challenge the validity of the Note and Trust
Deed and again plaintiff does n o t dispute he is in default. Therefore, foreclosure would take place regardless of whoever gave notice of the default and trustee ’ s sale.
6

. Leave to Amend

If the trial court sustains a demurrer without leave to amend, if a plaintiff seeks leave to amend, he must demonstrate how the complaint could be amended to state a valid cause of action. ( Schifando v. City of Los Angeles, supra, 31 Cal .4th at p. 1081.)

“‘ To satisfy that burden on appeal, a plaintiff “ must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. ” [Citation.]

. . . The plaintiff must clearly and specifically set forth the “ applicable
substantive law ” [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] ’” ( Rossberg v. Bank of America , N.A. (2013) 219 Cal.App.4th 1481, 1491.)

Here plaintiff has not met his burden to show how he could amend any of the four causes of action. In addition, he has already had three opportun ities to plead a valid cause of action. As a result, there is no basis on which to grant leave to amend.17 DISPOSITION The judgment is affirmed. Defendants are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.