Filed 7/24/15 Fidelman v. JP Morgan Chase CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

DEBORAH BECK FIDELMAN,

 Plaintiff and Appellant,

 v.

JP MORGAN CHASE, N.A., et al.,

 Defendants and Respondents.

 B256068

 (Los Angeles County

 Super. Ct. No. PC054891)

APPEAL from a judgment of the Superior Court of Los Angeles County, Melvin 

D. Sandvig, Judge. Affirmed.

Rodriguez Law Group, Patricia Rodriguez and George M. Hill for Plaintiff and 

Appellant.

Parker Ibrahim & Berg, John M. Sorich, and Chanel L. Oldham for Defendants

and Respondents.

______________________________
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Plaintiff Deborah Beck Fidelman appeals from a judgment of dismissal after a 

demurrer to her first amended complaint (FAC) by Defendants JP Morgan Chase Bank, 

N.A. (Chase) and California Reconveyance Corporation (CRC), was sustained without 

leave to amend. Finding no error, we affirm the judgment.

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FACTUAL AND PROCEDURAL SUMMARY

In an appeal arising from the sustaining of a demurrer, we accept as true the 

material allegations of the complaint. (Carter v. Prime Healthcare Paradise Valley LLC

(2011) 198 Cal.App.4th 396, 401.) The facts as alleged in the FAC, the operative 

pleading, are summarized as follows.

In 2009, plaintiff began to experience financial difficulties and fell behind on her 

mortgage payments. On May 20, 2009, a notice of default was filed on plaintiff’s loan. 

Plaintiff contacted Chase to inquire about her options, and Chase provided her with loan 

modification documents. She submitted the completed loan modification application in 

July 2009, and contacted Chase on at least five occasions to confirm receipt, but did not 

receive a response. 

On or about September 8, 2009, Chase requested supplemental documents from 

plaintiff to determine whether she qualified for the “HOME NOW loss mitigation 

program.” Plaintiff submitted the supplemental documents on October 2, 2009. Six days 

later, Chase sent plaintiff a notice stating that her modification trial program was “at risk” 

and that she must submit her trial payments immediately. Plaintiff responded with a 

letter explaining that she had not heard from Chase regarding the loan modification 

program or the HOME NOW loss mitigation program. 

On or about March 7, 2010, a notice of trustee sale was posted to plaintiff’s front 

door. Plaintiff retained counsel and contacted Chase again to inquire about the status of 

 

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The record, which we discuss in this summary, reflects troubling allegations about

Chase’s handling of plaintiff’s mortgage and foreclosure of her home. Plaintiff claims, 

and Chase does not deny, that Chase repeatedly asked for duplicate information to qualify 

for a loan modification program, was unresponsive to plaintiff’s inquiries about her 

eligibility for loan modification, and proceeded to hold a foreclosure sale, only to rescind 

it later and acknowledge the sale was due to its “inadvertence and oversight.” 
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her loan modification applications. A Chase representative informed plaintiff that her 

account had been closed and transferred to the loss mitigation department. Upon 

contacting that department, plaintiff was informed that her loan modification application 

had been denied on February 13, 2010, and that foreclosure of her property was on hold. 

On April 29, 2010, however, a representative from Chase called plaintiff to inform her 

that her loan modification application was being processed, and that plaintiff would be 

placed on a three month trial modification plan. On May 24, 2010, plaintiff received 

another phone call from Chase informing her that her modification file was under review. 

Chase requested modification documents from plaintiff once more on July 27, 

2010, which plaintiff submitted on August 1, 2010. Because she did not receive a 

response to her document submission, plaintiff resubmitted the requested documents on 

October 5, 2010, October 20, 2010, and October 22, 2010. On or about December 8, 

2010, plaintiff received a letter from Chase informing her that her trial period had 

expired. Plaintiff followed up by faxing a letter to Chase to inquire into “what needed to 

be done to make sure she was being reviewed in good faith.” 

In June 2011, Chase notified plaintiff that she had been approved for another 

“Trial Modification Plan” which required her to make three consecutive monthly 

payments beginning in August 2011. Plaintiff mailed in two payments, but was notified 

on September 26, 2011 that Chase was cancelling the plan because it had not received 

any payments from her. Plaintiff remained in contact with Chase and was able to 

postpone a foreclosure sale scheduled for November 2011. After discussing the matter 

with another Chase representative in January 2012 and being informed that a foreclosure 

sale was scheduled for March 2, 2012, plaintiff was provided with another modification 

request packet. She submitted the application on February 29, 2012. 

On March 2, 2012, plaintiff found a “Notice of Endeavor for Eviction Action” and 

“Foreclosure Notice to Vacate” posted on her front door. She contacted Chase. A

representative stated “the only explanation he could think of was that there was a 

disconnect between the modification department and the foreclosure department.” 

Plaintiff was informed that her house already had been sold to Canterbury Lots. Some 
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time later, an agent of Canterbury Lots contacted plaintiff to discuss eviction options. 

On March 6, 2012, plaintiff received a letter from Chase acknowledging her 

“recent mortgage payment” that was mailed to Chase in July 2011 and to inform her that 

the payment was delayed because it was mailed to the wrong address. On or about 

March 23, 2012, Chase notified plaintiff that it would file for rescission of the foreclosure 

sale. A notice of rescission of trustee’s deed upon sale was made on March 2012. 

In April 2012, plaintiff spoke with a Chase representative who assured her that 

Chase was “trying to work out the details of the rescission and that Chase had approved a 

modification” for her. The representative communicated the loan terms over the phone, 

which were acceptable to plaintiff. She faxed a letter to Chase memorializing the terms 

communicated to her. In May 2012, plaintiff received a letter from Chase stating she had 

been approved for a loan modification period plan, under which she would be responsible 

for paying $1,622.90 per month. The letter stated that Chase would not finalize a 

foreclosure sale during the trial modification period. Plaintiff began making the monthly 

payments. 

On October 3, 2012, plaintiff received a letter from Chase detailing the loan 

modification terms. These terms “did not coincide with the numbers presented to 

Plaintiff [orally] on April 24, 2012.” Feeling “taken advantage of by Chase,” plaintiff 

sent Chase a letter “demanding the terms represented to her via telephone” in April 2012. 

On January 28, 2013, plaintiff received a written notification that she was no longer 

eligible for the loan modification because she failed to return the final modification 

agreement within the required time frame. On April 1, 2013, plaintiff stopped making 

payments to Chase “as she was denied a good faith modification offer.” 

Plaintiff filed a complaint on April 25, 2013, alleging various causes of action 

against defendants. The FAC, the operative complaint, was filed on August 20, 2013, 

alleging (1) wrongful foreclosure; (2) violation of Civil Code section 2924, subdivision 

(a)(6); (3) breach of oral contract; (4) promissory estoppel; (5) violation of the covenant 

of good faith and fair dealing; (6) violation of Business and Professions Code section 

17200; (7) negligent misrepresentation; and (8) intentional infliction of emotional 
5

distress. Defendants demurred and requested that the trial court take judicial notice of 

documents in support of the demurrer. The trial court took judicial notice of the 

documents and sustained the demurrer as to all causes of action without leave to amend. 

A judgment of dismissal was entered on February 20, 2014. 

This timely appeal followed.

DISCUSSION

I

At the outset, we address plaintiff’s argument that the trial court improperly 

considered the judicially noticed documents for the truth of their contents. Other than 

referring to them as recorded foreclosure documents, however, plaintiff does not 

elaborate on or identify the objectionable content contained in these documents, nor does 

she include a citation to these documents in the appellate record. “It is the burden of 

appellant to provide an accurate record on appeal to demonstrate error. Failure to do so 

precludes an adequate review and results in affirmance of the trial court’s determination. 

[Citation.]” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) 

Regardless of this omission, our decision does not rely on the judicially noticed 

documents considered by the trial court. Rather, we rely on the facts pleaded in the FAC 

and its accompanying exhibits. (Pich v. Lightbourne (2013) 221 Cal.App.4th 480, 490.) 

II

“In reviewing an order sustaining a demurrer, we independently evaluate whether 

the operative complaint states facts sufficient to state a cause of action. [Citation.] We 

accept as true all facts alleged in the complaint [citation], except when they are 

contradicted by exhibits attached to the complaint [citations] or matters subject to judicial 

notice [citation].” (Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 

34.) 

A trial court’s decision to sustain a demurrer without leave to amend is reviewed 

for abuse of discretion. (Gutkin v. University of Southern California (2002) 

101 Cal.App.4th 967, 976.) “It is an abuse of discretion to sustain a demurrer without 

leave to amend if there is a reasonable probability that the defect can be cured by 
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amendment. [Citation.] The burden is on the plaintiff to demonstrate how the complaint 

can be amended to state a valid cause of action. [Citation.]” (Chapman v. Skype Inc.

(2013) 220 Cal.App.4th 217, 226.)

A. Wrongful Foreclosure

Defendants argue that because the foreclosure sale was rescinded, plaintiff cannot 

state a claim for wrongful foreclosure. In Lueras v. BAC Home Loans Servicing, LP

(2013) 221 Cal.App.4th 49, Division Three of the Fourth District was presented with this 

question, but did not resolve the case on this ground because it had not been properly 

briefed and raised in the trial court. Nevertheless, the court noted, even “assuming there 

was a ‘rescission’ of the foreclosure sale, we cannot say as a matter of law . . . that 

[plaintiff] cannot plead any cause of action.” (Id. at p. 62.) Defendants have not cited to

any authority holding that a rescission of a foreclosure sale invalidates a claim for 

wrongful foreclosure. Therefore, we address the plaintiff’s substantive arguments.

In her briefing, plaintiff raises only two arguments to support her wrongful 

foreclosure claim: (1) that her FAC sufficiently alleged a wrongful foreclosure cause of 

action against defendants on the grounds that “her Note was sold, transferred and 

improperly securitized” and (2) defendants did not have authority to foreclose on her 

home because they did not have “actual physical possession of the Note at that point in 

time.” We consider each argument in turn. (See Godon v. Law Offices of Aguirre & 

Meyer (1999) 70 Cal.App.4th 972, 980, fn. 10 [Court of Appeal reviews only the 

arguments raised in plaintiff’s opening brief].)

1. Securitization of Plaintiff’s Loan

Plaintiff does not have standing to challenge the assignment of the deed of trust,

regardless of whether plaintiff’s loan was securitized. In Siliga v. Mortgage Electronic 

Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85, this court held that there was 

no prejudice suffered by the plaintiffs when they “d[id] not dispute that they are in 

default under the note,” “[t]he assignment of the deed of trust and the note did not change 

the[ir] . . . obligations under the note,” and “there [was] no reason to believe that . . . the 

original lender would have refrained from foreclosure in these circumstances.” Thus,
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plaintiffs “have no standing to complain about any alleged lack of authority or defective 

assignment. [Citations.]” (Ibid.) To establish standing, plaintiff points to Glaski v. 

Bank of America (2013) 218 Cal.App.4th 1079, 1094, which held that borrowers may 

challenge the improper securitization of the deed of trust. But the reasoning in Glaski has 

been criticized as “based on a questionable analysis of New York trust law” and 

“inconsistent with the majority line of cases.” (In re Sandri (Bankr. N.D.Cal. 2013) 501 

B.R. 369, 374; see also Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 

497, 513-515; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.) 

We agree with the majority view and find that plaintiff lacked standing to allege defects 

in the assignment, transfer, or securitization of the deed of trust absent showing of 

prejudice. She has not alleged such prejudice, nor has she demonstrated that she would 

be able to amend the FAC to establish prejudice.

2. Physical Possession of the Note

Plaintiff cites to no authority indicating that defendants needed physical 

possession of the note in order to foreclose on her property, and courts have explicitly 

rejected the argument. (Jenkins v. JP Morgan Chase Bank, N.A., supra, 216 Cal.App.4th 

at p. 513 [“[W]e find the statutory provisions . . . do not require that the foreclosing party 

have an actual beneficial interest in both the promissory note and deed of trust to 

commence and execute a nonjudicial foreclosure sale”]; Debrunner v. Deutsche Bank 

National Trust Co. (2012) 204 Cal.App.4th 433, 440 [“We . . . see nothing in the 

applicable statutes that precludes foreclosure when the foreclosing party does not possess 

the original promissory note”].) Civil Code section 2924, subdivision (a)(1) entitles 

“[t]he trustee, mortgagee, or beneficiary, or any of their authorized agents” to file a notice 

of default upon a property. CRC, the original trustee, was entitled to initiate foreclosure 

under this provision. Plaintiff’s arguments are not well taken.

B. Violation of Civil Code Sections 2924, Subdivision (a)(6) and 2924.11

The FAC alleged violations of Civil Code sections 2924, subdivision (a)(6) and 

2924.11, provisions of the Homeowners Bill of Rights Act (HBOR). The trial court 

sustained the demurrer as to this cause of action because the HBOR did not take effect 
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until January 1, 2013. (Lueras v. BAC Home Loans Servicing, LP, supra,

221 Cal.App.4th at p. 86, fn. 14.) The notice of default on plaintiff’s property was filed 

in May 2009, and the foreclosure sale in question took place in March 2012. “[U]nless 

there is an ‘express retroactivity provision, a statute will not be applied retroactively 

unless it is very clear from extrinsic sources that the Legislature . . . must have intended a 

retroactive application’ [citation].” (Myers v. Phillip Morris Companies, Inc. (2002) 

28 Cal.4th 828, 841.) No such retroactivity provision exists in the HBOR, and plaintiff 

does not point to extrinsic sources that make it “very clear” that the HBOR was intended 

to apply retroactively. (See Rockridge Trust v. Wells Fargo, N.A. (N.D.Cal. 2013) 985 

F.Supp.2d 1110, 1152 [HBOR is not retroactive].) 

The trial court properly sustained the demurrer under this cause of action.

C. Breach of Oral Contract

The FAC alleges Chase breached its oral contract with plaintiff to postpone 

foreclosure of her home while her loan modification application was pending and to 

honor the terms of the loan modification communicated to her in April 2012. 

“As a general rule, a gratuitous oral promise to postpone a foreclosure sale or to 

allow a borrower to delay monthly mortgage payments is unenforceable. [Citations.]” 

(Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1039.) Chase’s 

representations to plaintiff regarding the delay of the foreclosure sale did not constitute 

an oral contract because plaintiff furnished no consideration in exchange for Chase’s oral 

promise. Plaintiff suggests that her payments under the trial modification program, 

which she tendered to Chase in 2011 and 2012, constituted consideration. But these 

payments amounted to nothing more than what was due to Chase under her existing loan. 

(See 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 218, p. 251 

[“[D]oing or promising to do what one is already legally bound to do cannot be 

consideration for a promise”].) Because plaintiff pleaded no facts that suggest there was 

consideration in exchange for Chase’s promises, there was no contract formed, and no 

breach by Chase.
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Plaintiff’s secondary argument is that the written terms offered to her in October 

2012 “was about $137,498.30 less than what Plaintiff was initially promised.” Her claim

is contradicted by the written terms that Chase sent to her in October 2012, attached as an 

exhibit to the FAC. In April 2012, Chase offered loan modification terms to plaintiff 

over the phone. The terms of the April 2012 loan modification offer were as follows:

(1) a principal writeoff reducing her outstanding balance to $384,600; (2) a principal 

deferment of $17,900 due at the end of the loan term; (3) 2 percent interest for the first 

five years, 3 percent interest for the sixth year, and 3.87 percent interest for the remaining 

34 years. In October 2012, Chase followed up with final loan modification papers. 

Plaintiff alleges these terms “provided a reduction in the principal balance by $65,626.10, 

less than about 30% of the $203,124.00 principal balance reduction” represented in the 

April 2012 modification terms. However, looking to the actual terms that were sent to 

plaintiff, it is clear they provided a nearly identical reduction in the principal balance and 

in fact, offered better interest rates than the April 2012 terms. The October 2012 terms 

offered a reduction in principal of $65,626.10 per year for three years, in addition to a 

monthly benefit of $83.33 for five years. The written terms indicated her new principal 

balance would be $384,600—exactly what was represented to plaintiff in her April 2012 

phone call with Chase. The October 2012 terms also included a $17,900 principal 

deferment due at the end of the loan term and provided 2 percent interest for the first five 

years, 3 percent interest for the sixth year, and 3.5 percent interest for the remaining 34

years. Plaintiff, apparently misunderstanding these terms and feeling “taken advantage of 

by Chase,” did not accept the loan modification terms. There was no breach by Chase.

D. Violation of Business and Professions Code Section 17200

The FAC alleges defendants, in violation of the Unfair Competition Law (UCL),

“engaged in deceptive business practices with respect to the handling of the loan, the loan 

modification process and the improper foreclosure sale of Plaintiff’s home as described 

within this Complaint.” The FAC seeks injunctive relief pursuant to Business and 

Professions Code section 17203. The trial court sustained the demurrer to this claim on 

the grounds that plaintiff lacked standing for failure to plead an injury caused by 
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defendants and that she failed to allege sufficient facts to show defendants engaged in 

acts or practices that violated the UCL. 

Regardless of whether plaintiff had standing to bring this claim, we find that 

plaintiff did not sufficiently plead facts to show she was entitled to injunctive relief. 

Though plaintiff does not point out with specificity what conduct rose to the level of 

“deceptive business practices with respect to the handling of [her] loan, [and] the loan 

modification process,” the FAC makes clear that Chase ceased its allegedly wrongful 

conduct when it filed a notice of rescission of trustee’s deed upon sale, offered plaintiff 

loan modification terms that were acceptable to her, and did not foreclose on her property

while she made payments under the program. 

“Injunctive relief is appropriate only when there is a threat of continuing 

misconduct. [Citations.]” (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 

463.) Accordingly, plaintiff did not plead sufficient facts to show entitlement to 

injunctive relief; she did not establish a reasonable probability that the past wrongful acts 

alleged in the FAC will continue. (See Feitelberg v. Credit Suisse First Boston, LLC

(2005) 134 Cal.App.4th 997, 1012 [In a UCL case, injunctive remedy should not be 

exercised “‘“in the absence of any evidence that the acts are likely to be repeated in the 

future”’”].) The trial court properly sustained the demurrer as to this claim.

E. Leave to Amend

Plaintiff challenges the trial court’s decision not to grant leave to amend the FAC. 

Leave to amend may be granted only if there is a reasonable possibility that the defects in 

the complaint can be cured by amendment. (Hood v. Hacienda La Puente Unified School 

Dist. (1998) 65 Cal.App.4th 435, 438-439.) “‘The burden of proving such reasonable 

possibility is squarely on the plaintiff. [Citation.]’” (Ibid.) Plaintiff has not met this 

burden, but simply states in her opening brief that “the trial court should have, at the very

least, granted leave to amend so that Plaintiff could clarify her arguments and be afforded 

sufficient time to conduct discovery.” As plaintiff did not demonstrate a reasonable 

possibility that amending her complaint would cure the aforementioned defects, we find 

no abuse of discretion in the trial court’s decision to deny leave to amend. 
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F. Remaining Causes of Action

The trial court sustained defendants’ demurrer to all claims in the FAC. Plaintiff’s 

opening brief challenges only the court’s sustaining of defendants’ demurrer as to 

wrongful foreclosure, violation of Civil Code sections 2924 and 2924.11, breach of oral 

contract, and violation of Business and Professions Code section 17200. Therefore, 

plaintiff has forfeited her right to challenge her claims for promissory estoppel, breach of 

the covenant of good faith and fair dealing, negligent misrepresentation, and intentional 

infliction of emotional distress. (In re Sade C. (1996) 13 Cal.4th 952, 994 [issues not 

raised in appellant’s brief are deemed waived].)

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

COLLINS, J.