1

Filed 12/30/21 Rezapour v. U.S. Bank Nat. Assn. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ARI REZAPOUR et al.,

Plaintiffs and Appellants,

v.

U.S. BANK NATIONAL 

ASSOCIATION et al.,

Defendants and Respondents.

 A155505, A156855

 (Contra Costa County

 Super. Ct. No. MSC1702246)

In this consolidated appeal, plaintiffs Ari and Aurora Rezapour appeal 

from a judgment in favor of defendants U.S. Bank N.A., as Trustee for Banc 

of America Funding Corporation Mortgage Pass-Through Certificate Series 

2007-7 (U.S. Bank), Nationstar Mortgage LLC (Nationstar), and Specialized 

Loan Servicing LLC (SLS), and from a postjudgment order granting SLS’s 

motion for attorney fees. Plaintiffs filed this lawsuit to preempt a nonjudicial 

foreclosure sale of their home by alleging that the foreclosing entity lacked 

the authority to proceed with the sale. The trial court sustained demurrers 

to plaintiffs’ second amended complaint without leave to amend on the 

ground that plaintiffs lacked standing to challenge the foreclosing entity’s 

authority because their allegations of “forgery,” even if true, would only 

render the assignment of the note and deed of trust voidable at the injured 
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party’s option, not void. In awarding attorney fees to SLS, the court found 

that although SLS was not a signatory to the promissory note and deed of 

trust containing the attorney fee clauses, it was entitled to fees because it 

“ ‘stood in the shoes’ ” of the loan beneficiary. We affirm the judgment but 

reverse the order awarding SLS its attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

We take the following factual allegations from the complaint.

Plaintiffs are the owners of property located in Lafayette (the property). 

They purchased the property in 2007 after obtaining a purchase money 

mortgage from Bank of America, N.A. (BofA) in the amount of $1.46 million. 

The mortgage was secured by a deed of trust on the property. According to 

the complaint, plaintiffs “still currently reside” at the property. 

The complaint alleges a conspiracy among defendants and various 

individuals to deprive plaintiffs of the protections of California nonjudicial 

foreclosure law. Specifically, plaintiffs allege that in August 2012, one Loryn 

Stone, falsely holding herself out as an “Assistant Vice President” at BofA, 

“forged” a substitution of trustee naming Recon Trust Company as 

foreclosure trustee, and then “forged” an assignment of the deed of trust from 

BofA to defendant U.S. Bank. Stone also recorded a notice of default on the 

property. 

Plaintiffs further allege a long series of additional transactions 

beginning in March 2014, when Robin Mathews, falsely holding herself out as 

a “Vice President” of defendant SLS, attorney-in-fact for BofA, executed and 

recorded a corrective assignment of the deed of trust from BofA to U.S. Bank. 

SLS then transferred servicing of the loan to defendant Nationstar, and Jorge 

Valadez, falsely holding himself out as a “Vice President” of Nationstar, 

executed and recorded a substitution of trustee in favor of Veriprise, which 
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recorded a notice of default on the property. More than a year later in 

December 2016, Dustin Chmeilewski, falsely holding himself out as an 

“Assistant Secretary” of U.S. Bank, recorded a substitution of trustee naming 

Les Zieve as foreclosure trustee, and Zieve recorded yet another notice of 

default on the property. In March 2017, another substitution of trustee was 

recorded, this time by Carol Davis allegedly on behalf of Nationstar, naming 

Clear Recon Corporation as foreclosure trustee. Davis “never had any lawful 

or corporate authority to execute this substitution.” Clear Recon Corporation 

recorded another notice of default, and in October 2017, a notice of trustee 

sale of the property. 

In short, plaintiffs allege that “[t]he notice of trustee sale and the 

substitutions and the notices of default and the assignments [of the deed of 

trust] since 2012 are void and invalid due to the fact that Loryn Stone, Robin 

Mathews, Jorge Valadez, Dustin Chmeilewski, [and] Carol Davis, did not 

have the lawful authority to execute the documents they did.” Thus, “[a]s a 

result of these fraudulent and forged assignments, defendants, and none of 

them, have the lawful nor legal right to foreclose upon the property.”

The complaint asserts causes of action against defendants for 

(1) declaratory judgment; (2) violation of statutes (Civ. Code, §§ 2924, 

subd. (a)(6), 2924.17, & 1227); (3) “unlawful and attempted foreclosure”; 

(4) cancellation of recorded instruments; (5) unfair business practices under 

the Unfair Competition Law (Bus. & Prof. Code, § 17200 (UCL)); and 

(6) slander of title. 

SLS and U.S. Bank each generally demurred to the complaint. The 

trial court tentatively ruled that plaintiffs failed to state sufficient facts to 

constitute a cause of action because under Yvanova v. New Century Mortgage 

Corp. (2016) 62 Cal.4th 919 (Yvanova), a borrower only has standing to 
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challenge the validity of a loan assignment that is void, not merely voidable, 

and plaintiffs’ forgery allegations did not support the conclusion that the 

assignments of the deed of trust were void. The court additionally found that 

plaintiffs failed to allege (1) tender of the amounts due under the loan; 

(2) economic harm caused by defendants’ conduct for purposes of the UCL

claim; and (3) malice to overcome the common interest privilege of Civil Code 

section 47[, subdivision (c)], for purposes of the slander of title claim. After a 

hearing on the demurrer, the court adopted its tentative ruling and entered 

judgment in favor of defendants. 

Thereafter, SLS moved for an award of attorney fees in the amount of 

$31,215. SLS argued that as a prevailing party against plaintiffs, it was 

contractually entitled to attorney fees under section 6(E) of the promissory 

note and sections 9, 14, and 22 of the deed of trust, provisions that SLS could 

assert despite being a nonsignatory because it “ ‘stood in the shoes’ ” of the 

loan beneficiary, U.S. Bank. In support of the motion, SLS submitted the 

declaration of Ami McKernan, second assistant vice president of SLS, who 

averred that SLS acted as the loan servicer for the subject mortgage and that 

plaintiffs were in default on the loan. 

The trial court granted the motion, finding that “[b]oth the promissory 

note and deed of trust executed by Plaintiffs contained provisions for an 

award of attorney’s fees in all actions related to the loan,” and that although 

SLS was not a signatory to the note and deed of trust, “it is undisputed that 

[SLS] was the loan servicer. The Court finds as the loan servicer, [SLS] 

‘stood in the shoes’ of the loan beneficiary.” The court further concluded that 

the amount of fees sought by SLS was reasonable. Finally, the court 

overruled plaintiffs’ objections to the McKernan declaration, and, in response 
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to SLS’s objections to the declaration of plaintiffs’ counsel, “considered said 

declaration as argument and not evidence.” 

Plaintiffs appealed from the judgment and the order granting SLS’s 

motion for attorney fees.

1 On our own motion, we consolidated the appeals 

for purposes of argument and opinion.

DISCUSSION

A. Demurrer

On appeal from an order sustaining a general demurrer, we review the 

complaint de novo to determine whether it alleges facts sufficient to state a 

cause of action under any legal theory. (Cantu v. Resolution Trust Corp.

(1992) 4 Cal.App.4th 857, 879.) “ ‘ “We treat the demurrer as admitting all 

material facts properly pleaded, but not contentions, deductions or 

conclusions of fact or law.” ’ ” (Sanchez v. Truck Ins. Exchange (1994) 21 

Cal.App.4th 1778, 1781.)

1. Borrower Standing in Wrongful Foreclosure Actions

The central issue raised in this appeal is whether plaintiffs have 

standing preemptively to challenge U.S. Bank’s authority to foreclose on the 

property based on allegations that certain foreclosure documents, including 

the assignments of the deed of trust from BofA to U.S. Bank, were “forged.” 

To state a claim for wrongful foreclosure generally, a plaintiff must allege 

that the defendants caused an illegal, fraudulent, or willfully oppressive sale 

of the property, the plaintiff suffered prejudice or harm, and the plaintiff 

tendered or was excused from tendering the amount of the secured 

indebtedness. (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 

1 The notice of appeal in case No. A155505 originally identified a 

judgment in favor of “Select Portfolio Servicing,” but there was no party by 

that name. After we requested clarification, plaintiffs amended the notice of 

appeal to reflect SLS as respondent.
6

1052, 1062.) “Standing is a threshold issue necessary to maintain a cause of 

action, and the burden to allege and establish standing lies with the 

plaintiff.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 

802, 809 (Mendoza).) In the foreclosure context, standing denotes “a 

borrower’s legal authority to challenge the validity of an assignment.” 

(Yvanova, supra, 62 Cal.4th at p. 928, fn. 3.)

In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 

1149, and Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 

497, disapproved in part in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13, the 

appellate courts held that under California’s comprehensive and exhaustive 

statutory scheme for nonjudicial foreclosures, a borrower is not permitted to 

bring a preemptive judicial action to challenge the right, power, and 

authority of the foreclosing beneficiary or its agent to initiate and pursue 

foreclosure. (Jenkins, at pp. 511–512; Gomes, at pp. 1154–1157.) As an 

alternative basis for its decision, Jenkins further held that the plaintiff’s 

allegation of an improper transfer of the assignment of the note and deed of 

trust to an investment trust during the securitization process was insufficient 

to withstand demurrer. (Jenkins, at pp. 513–515.) According to Jenkins, the 

plaintiff was not the victim of the invalid transfer of the assignment of the 

deed of trust, but was an unrelated third party, and she therefore lacked 

standing to sue on the investment trust’s pooling and servicing agreement

relating to the transfer. (Ibid.)

In Yvanova, the Supreme Court disapproved of this latter portion of 

Jenkins, concluding that a borrower has standing to maintain a postsale suit 

for wrongful foreclosure if he or she alleges facts that, if true, would render 

the assignment of the deed of trust to the foreclosing entity “void, and not 

merely voidable at the behest of the parties to the assignment.” (Yvanova, 
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supra, 62 Cal.4th at pp. 923, 934–939 & fn. 13.) As the court explained, if a 

borrower alleges a void assignment of the deed of trust to the foreclosing 

entity, the assignment has “no legal force or effect whatsoever [citation], 

[and] the foreclosing entity has acted without legal authority by pursuing a 

trustee’s sale.” (Id. at p. 935.) In this circumstance, the borrower is not 

attempting to assert the rights of other parties to the agreement giving rise 

to the assignment, but rather, is asserting its own right not to have its home

unlawfully foreclosed upon. (Id. at pp. 935–936.) Central to the decision in 

Yvanova is the distinction between void and voidable assignments, as a void 

transfer “cannot be ratified or validated by the parties to it even if they so 

desire,” but “[w]hen an assignment is merely voidable, the power to ratify or 

avoid the transaction lies solely with the parties to the assignment; the 

transaction is not void unless and until one of the parties takes steps to make 

it so.” (Id. at p. 936.)

Yvanova’s holding was a narrow one, as the court did not decide 

whether or not the assignment of the deed of trust to an investment trust 

after the trust’s closing date was void. (Yvanova, supra, 62 Cal.4th at 

pp. 924, 925.) Furthermore, the scope of review in Yvanova did not extend to 

the question of whether a preemptive wrongful foreclosure action is 

permissible. (Yvanova, at pp. 924, 934 [“We do not hold or suggest that a 

borrower may attempt to preempt a threatened nonjudicial foreclosure by a 

suit questioning the foreclosing party’s right to proceed”].) Plaintiffs 

nonetheless maintain that Yvanova’s recognition of borrower standing should 

apply to their presale action. On-point authority is to the contrary (Saterbak 

v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814–815 
8

(Saterbak)),2 but even if we assume for the sake of argument that a 

preforeclosure action alleging a void assignment of the deed of trust to the 

foreclosing party is permissible, the question remains whether plaintiffs’ 

allegations of forgery support a claim that the challenged foreclosure 

documents are void, rather than merely voidable at the injured party’s 

option.

Several post-Yvanova decisions have rejected the theory that an 

assignment of a deed of trust that was robosigned3 and/or forged was void, 

concluding that such irregularities rendered the assignments merely voidable 

at the option of the injured banks. (See Kalnoki v. First American Trustee 

Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 46 (Kalnoki); Mendoza, 

supra, 6 Cal.App.5th at pp. 819; Saterbak, supra, 245 Cal.App.4th at pp. 814–

815.) As plaintiffs point out, these cases did not meaningfully distinguish 

between the practices of robosigning and forgery. While plaintiffs concede 

that a robosignature renders an assignment merely voidable, they maintain 

that a forged assignment is void ab initio, citing Wutzke v. Bill Reid Painting 

Service, Inc. (1984) 151 Cal.App.3d 36 (Wutzke) and similar case authorities. 

They further cite Century Bank v. St. Paul Fire & Marine Insurance Co.

2 Saterbak also rejected an argument raised by plaintiffs here that a 

portion of paragraph 22 of the deed of trust requiring lenders to notify 

borrowers of their “right to bring a court action to assert the non-existence of 

a default or any other defense of Borrower to acceleration and sale” gives 

plaintiffs standing to bring a presale action in court. As Saterbak held, such 

“provisions do not change [the plaintiff’s] standing obligations under 

California law.” (Saterbak, supra, 245 Cal.App.4th at p. 816.)

3 “The use of automated signatures” has been “colloquially referred to 

as ‘robosigning.’ ” (Greenwald & Bank, Cal. Practice Guide: Real Property 

Transactions (The Rutter Group 2018) ¶ 6:536:16.)
9

(1971) 4 Cal.3d 319 (Century Bank) for the proposition that someone who 

executes a document without lawful authority commits forgery. 

As a threshold matter, we disregard the complaint’s repeated uses of 

the terms “forged” and “void ab initio,” as these are legal conclusions

insufficient to withstand demurrer. (Doe v. Roman Catholic Archbishop of 

Los Angeles (2016) 247 Cal.App.4th 953, 960.) While we assume the truth of 

the complaint’s factual allegations that Stone, Mathews, Chmeilewski, 

Valadez, and Davis (hereafter the signatories) falsely asserted various job 

titles in executing foreclosure-related documents, as we shall explain, these 

allegations are insufficient to support the conclusion that the documents were 

void.

A forgery is a “ ‘ “writing which falsely purports to be the writing of 

another,” ’ and is executed with the intent to defraud.” (Schiavon v. Arnaudo 

Brothers (2000) 84 Cal.App.4th 374, 382.) The Penal Code defines forgery as 

requiring a signer’s knowledge that he or she lacks authority to sign the 

name of another person, as well as intent to defraud. (Pen. Code, § 470.) In 

Wutzke, supra, 151 Cal.App.3d 36, a deed of reconveyance was found to be 

void because it met this legal definition of forgery. One of the borrowers 

under a promissory note and deed of trust (Miller), executed and recorded a 

fraudulent deed of reconveyance, signing “the fictitious names of Howard 

Perry, as executive officer of [the trustee on the deed of trust], and Caroline

Wilson, notary.” (Wutzke, at p. 39.) Wutzke held that Miller’s signing of a 

fictitious name on the deed of reconveyance rendered the document void 

because it was a forgery within the meaning of Penal Code section 470. (Id.

at pp. 40–42.)

In so concluding, Wutzke distinguished People v. Bendit (1896) 111 Cal. 

274, which held that a defendant who signed a bill of exchange in his own 
10

name while falsely representing himself to be a collector for a business firm 

did not commit forgery because “it is no false making of the instrument, but 

merely a false assumption of authority.” ’ ” (Id. at pp. 277–278.) In contrast, 

Wutkze highlighted that Miller “did not sign his own name but rather those of 

two fictitious persons, thereby executing a document ‘which falsely purports 

to be the writing of another.’ ” (Wutzke, supra, 151 Cal.App.3d at p. 42.)

Plaintiffs’ “forgery” allegations resemble Bendit, not Wutzke. They do 

not allege that the signatories signed the foreclosure documents using the 

names of other, or fictitious, persons. Nor do they allege that the signatures 

as they appear in the challenged instruments are not those of the signatories. 

Rather, as in Bendit, the allegations involve individuals signing their own 

names but making false assertions of authority. Although plaintiffs allege in 

a conclusory fashion that the signatories acted “fraudulently” and with the 

“intent to defraud,” they fail to allege such fraud with particularity. (Cansino 

v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [particularity 

requirement for pleading fraud].) Critically, nowhere in the complaint do 

plaintiffs allege that the signatories acted without the permission of the 

entities on whose behalf they signed. Indeed, as to Mathews and 

Chmeilewski, plaintiffs allege that these individuals executed the foreclosure 

documents “at the direction of” the loan servicers, Nationstar and SLS. 

Moreover, even if we indulged plaintiffs’ theory that the signatories

committed forgery, plaintiffs still fail to allege a void assignment because a 

principal may ratify the forgery of its signature by an agent. (Rakestraw v. 

Rodrigues (1972) 8 Cal.3d 67, 73–74 (Rakestraw); see Navrides v. Zurich Ins. 

Co. (1971) 5 Cal.3d 698, 703–704 [principal may ratify agent’s unauthorized 

act].) “[T]he ratification of an act of forgery by one held out to be a principal 

creates an agency relationship between such person and the purported agent 
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and relieves the agent of civil liability to the principal which otherwise would 

result from the fact that he acted independently and without authority. 

(Rakestraw, at p. 74.) Thus, in Rakestraw, the forgery of a crosscomplainant’s name on a promissory note and deed of trust by her exhusband was ratified by the cross-complainant who, despite knowledge of the 

fraud, did nothing for several years until an action was brought against her 

to enforce the payment obligation. (Id. at pp. 71–72, 75.)

Accordingly, even if the signatories’ false assertions of job titles

constituted forgeries, these acts were capable of ratification by the entities on 

whose behalf they falsely signed. Plaintiffs do not allege that any of the 

parties to the allegedly forged instruments have stepped in to void them. 

Thus, the complaint alleges, at best, irregularities that are voidable at the 

option of the injured parties, and under Yvanova, plaintiffs lack standing to 

assert those parties’ rights in order to challenge the foreclosing entity’s 

authority to maintain the foreclosure proceedings. (Yvanova, supra, 62 

Cal.4th at p. 936.)

Century Bank, supra, 4 Cal.3d 319 does not compel a different 

conclusion, as that case involved the interpretation of a banker’s blanket 

bond that insured against losses from loans made in reliance on 

“ ‘counterfeited [or] forged’ ” instruments. (Id. at p. 320.) As an initial 

matter, we question whether Century Bank has application outside the 

context of interpreting an insurance policy. In concluding that the bond’s 

forgery coverage applied where a security instrument was signed “by one who 

had no authority to do so” (ibid.), Century Bank applied the maxim that the 

meaning of an insurance policy must “be ascertained according to the 

insured’s reasonable expectation of coverage, and all doubts as to the 

meaning are to be resolved against the insurer.” (Id. at p. 321.) The court 
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thus construed the contract “in accord with the reasonable understanding of a 

layman as to what constitutes forgery or counterfeiting, rather than in accord 

with technical definitions and refinements of criminal statutes.” (Id. at 

pp. 321–322.) But in any event, Century Bank went on to hold that “the 

precise conduct which caused plaintiff’s loss in the present case falls within 

the literal definition of forgery set forth in Penal Code section 470,” a 

circumstance that distinguishes Century Bank from our case. (Century Bank, 

supra, 4 Cal.3d at p. 322.)

In sum, because plaintiffs have not alleged a void assignment of the 

deed of trust, but merely voidable irregularities in the foreclosure process, 

they lack standing to challenge the foreclosing entity’s power to sell on these 

grounds. (Kalnoki, supra, 8 Cal.App.5th at p. 46; Mendoza, supra, 

6 Cal.App.5th at p. 819; Saterbak, supra, 245 Cal.App.4th at pp. 814–815.) 

Thus, the trial court properly sustained the demurrer to the wrongful 

foreclosure claim.

2. Remaining Causes of Action

The remaining causes of action fare no better, as they each duplicate 

the wrongful foreclosure claim’s central allegation that the foreclosure 

instruments were forged. The first cause of action seeks a declaratory 

judgment that the assignments of the deed of trust, substitutions of trustees, 

and notices of default and sale are void due to the alleged “fraud, lack of 

authority, intent to defraud, and forgery.” The fourth cause of action seeks 

cancellation of these instruments on the same grounds. The second cause of 

action alleges violations of California nonjudicial foreclosure statutes “due to 

the forgery” of Stone and Mathews. Likewise, the UCL claim “borrows” from 

California nonjudicial foreclosure statutes as well as the Penal Code (CelTech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 
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Cal.4th 163, 180) to allege that defendants committed forgery, and the 

slander of title claim alleges that the recording of “forged” documents 

slandered plaintiffs’ title to their home. To the extent these claims seek 

preemptively to challenge the foreclosing party’s authority to proceed with 

the foreclosure sale, they fail as a matter of law for the reasons discussed. 

(See Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 

Cal.App.4th 595, 607 [declaratory relief claim based on defective causes of 

action also fails as matter of law]; Ingels v. Westwood One Broadcasting

Services, Inc. (2005) 129 Cal.App.4th 1050, 1060 [defendant cannot be liable 

for unlawful business practices without having violated borrowed law].)

The slander of title claim fails for the additional reason that plaintiffs 

fail to allege sufficient facts to overcome the common interest privilege of 

Civil Code section 47, subdivision (c). Slander of title occurs when a person

publishes a false and unprivileged statement that disparages title to property 

and causes the owner special pecuniary loss or damage. (Sumner Hill 

Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 

999, 1030.) Importantly, the law “deems statutory nonjudicial foreclosure 

procedures to be privileged communications under [Civil Code] section 47,” 

which “provides a qualified privilege for communications made ‘without 

malice, to a person interested therein, . . . by one who is also interested’ 

[citation], the so-called common interest privilege. For this purpose, malice is 

defined as actual malice, meaning ‘ “that the publication was motivated by 

hatred or ill will towards the plaintiff or by a showing that the defendant 

lacked reasonable grounds for belief in the truth of the publication and 

therefore acted in reckless disregard of the plaintiff’s rights.” ’ ” (Kachlon v. 

Markowitz (2008) 168 Cal.App.4th 316, 336, italics omitted.) Here, the

complaint contains only conclusory statements that the foreclosure 
14

instruments were not privileged and were recorded with malice. Plaintiffs 

provide no argument or support that the demurring defendants’ malice can 

be inferred from the allegations that the signatories held out false job titles in 

the instruments they signed.

Instead, plaintiffs contend that the common interest privilege applies 

only to the actions of the foreclosure trustee, not the demurring defendants. 

We are not persuaded. Civil Code section 2924, subdivision (d), states in 

relevant part that “privileged communications” pursuant to Civil Code 

section 47 include the “[p]erformance of the procedures set forth in this 

article.” The slander of title claim is based on the demurring defendants’ acts 

of recording or causing to be recorded the notices of default, the assignments

of the deed of trust, and the substitutions of trustees, all of which constitute 

procedures set forth in the same article as Civil Code section 2924—which 

spans Civil Code sections 2920 to 2944.10. (See Civ. Code, §§ 2933.55 

[recordation of notice of default], 2934 [recording of assignment of deed of 

trust], 2934a [substitution of trustee].) Thus, the privilege applies to the 

demurring defendants’ alleged conduct, and plaintiffs’ failure sufficiently to 

allege malice provides an additional ground for sustaining the demurrer to 

the slander of title claim.

For all of these reasons, we conclude the trial court properly sustained 

the demurrers to the complaint in its entirety.

3. Leave to Amend

We last consider whether the trial court abused its discretion in 

denying leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To 

demonstrate that discretion was abused, plaintiffs have the burden of 

showing a reasonable possibility that the pleading defects could be cured by 

amendment. (Ibid.) Plaintiffs have not met their burden here.
15

Plaintiffs contend they were wrongfully denied leave to allege that SLS 

admitted in discovery that Mathews was not its employee.

4 This proposed 

allegation would not cure the deficiency discussed above. Mathews’ lack of 

employment with SLS does not mean she could not act as its agent (see 

Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 205), or that an agency 

relationship could not be created by the principal’s ratification of Mathews’ 

alleged forgery. (Rakestraw, supra, 8 Cal.3d at p. 73.) Plaintiffs do not 

propose to allege that the signatories acted without the permission of the 

entities on whose behalf they signed.

Plaintiffs further contend they could have alleged that the property had 

a main house in which they resided, while a “granny unit” was rented to a 

tenant, and that this fact would have cured any deficiencies in the complaint

by bringing them within the protection of the Homeowner’s Bill of Rights

(citing Civ. Code, § 2924.15). Since the complaint already alleged plaintiffs 

resided on the property, this proposed amendment would have changed 

nothing.

Finally, plaintiffs proffer the allegation that the property was sold at a 

completed foreclosure sale in October 2018. While this allegation would 

transform this matter from a preforeclosure action to a postforeclosure one, it 

would not change our decision. We have already assumed for the sake of 

argument that Yvanova’s recognition of borrower standing applies to 

plaintiffs’ presale action, but it remains the case that plaintiffs’ forgery 

4 Although an assignment of the deed of trust from BofA to U.S. Bank 

purports to be signed by Robin Mathews, “Vice President” of SLS, SLS 

apparently conceded in responding to discovery that “Robin Mathews was 

never employed by Responding Party,” while maintaining “documents 

evidencing the authority of Robin Mathews to execute any foreclosure-related 

documents may be in the possession of other parties, including Nationstar 

Mortgage LLC and Bank of America, N.A.” 
16

allegations establish only a voidable, rather than void, irregularity. 

(Rakestraw, supra, 8 Cal.3d at pp. 73–74; Kalnoki, supra, 8 Cal.App.5th at 

p. 46; Mendoza, supra, 6 Cal.App.5th at p. 819; Saterbak, supra, 245 

Cal.App.4th at pp. 814–815.)

For all of these reasons, we conclude the trial court did not abuse its 

discretion in denying leave to amend.

B. Attorney Fees

Generally, each party to a lawsuit must pay its own attorney fees 

unless a contract, statute, or other law authorizes a fee award. (Code Civ. 

Proc., §§ 1021, 1033.5, subd. (a)(10); Musaelian v. Adams (2009) 45 Cal.4th 

512, 516.) The determination of the legal basis for an award of attorney fees 

is a question of law which we review de novo. (Goodman v. Lozano (2010) 47 

Cal.4th 1327, 1332.)

SLS relies on section 6(E) of the promissory note, and sections 9, 14, 

and 22 of the deed of trust as the contractual bases for its request for 

attorney fees. Both the note and deed of trust are contracts. (See Kerivan v. 

Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 230; Henehan v. Hart

(1900) 127 Cal. 656, 657–658.) The purported fee provisions are as follows.

Under section 6(E) of the promissory note, if the borrower is in default 

under the terms of the note, “the Note Holder will have the right to be paid 

back by [the borrower] for all of its costs and expenses in enforcing this Note 

to the extent not prohibited by applicable law. Those expenses include, for 

example, reasonable attorneys’ fees.” 

Section 9 of the deed of trust states in relevant part that if the borrower 

defaults and “there is a legal proceeding that might significantly affect 

Lender’s interest in the Property and/or rights under this Security 

Instrument . . ., then Lender may do and pay for whatever is reasonable or 
17

appropriate to protect Lender’s interest in the Property and rights under this 

Security Instrument, including . . . paying reasonable attorneys’ fees . . . . [¶] 

Any amounts disbursed by Lender under this Section 9 shall become 

additional debt of Borrower secured by this Security Instrument. These 

amounts shall bear interest at the Note rate from the date of disbursement 

and shall be payable, with such interest, upon notice from Lender to 

Borrower requesting payment.” 

Under section 14 of the deed of trust, the “Lender may charge Borrower 

fees for services performed in connection with Borrower’s default, for the 

purpose of protecting Lender’s interest in the Property and rights under this 

Security Instrument, including, but not limited to, attorneys’ fees.” 

Finally, section 22 of the deed of trust states in relevant part that after 

notice of default to the borrower, if the default is not timely cured, the lender 

may require immediate payment in full of all sums secured by the security 

instrument and may invoke the power of sale, and the lender “shall be 

entitled to collect all expenses incurred in pursing the remedies provided in 

this Section 22, including, but not limited to, reasonable attorneys’ fees and 

costs of title evidence.” 

Plaintiffs set forth several arguments as to why the award of attorney 

fees under these clauses was erroneous. Their main contention is that SLS 

was a nonsignatory to the note and deed of trust and did not “ ‘stand[] in the 

shoes’ ” of a party to those contracts. (Cargill, Inc. v. Souza (2011) 201 

Cal.App.4th 962, 966.) Plaintiffs alternatively contend that the provisions in 

question are not attorney fee clauses permitting an award in litigation to 

SLS.

This latter argument is supported by Hart v. Clear Recon Corp. (2018) 

27 Cal.App.5th 322 (Hart) and Chacker v. JPMorgan Chase Bank, N.A.
18

(2018) 27 Cal.App.5th 351, both of which held that a clause identical to 

section 9 of the deed of trust here did not provide for attorney fees in 

litigation. The language of that clause—which makes attorney fees incurred 

by the lender “ ‘additional debt of Borrower secured by this Security 

Instrument’ ” and payable, with “ ‘interest at the Note rate . . . upon notice 

from Lender to Borrower’ ”—merely added attorney fees to the secured debt

but did not justify a separate award, both courts concluded. (Chacker, at 

p. 357; Hart, at pp. 325, 327.) Chacker additionally held that a clause 

identical to section 14 of the deed of trust here did not permit a “freestanding 

contractual attorney fees award” for the same reasons. (Chacker, at p. 357.) 

As Chacker reasoned, section 14, “entitles the lender to charge the borrower 

fees, and the usage of the word ‘charge,’ particularly in combination with the 

‘Loan Charges’ heading and the other clauses in section 14, is naturally read 

to permit the lender to add any attorney fees it may have incurred to the 

outstanding amount due under the promissory note. There is no language in 

section 14 that indicates the trust deed permits a freestanding contractual 

attorney fees award.” (Ibid.)

SLS challenges the procedural manner in which plaintiffs have cited 

Hart and Chacker, moving to strike plaintiff’s “Letter of Authority” citing 

Hart as noncompliant with California Rules of Court, rule 8.254, and arguing 

that plaintiffs’ citation to Chacker was belatedly made for the first time in 

their reply brief. SLS further contends that plaintiffs forfeited their 

arguments based on these cases by failing to present them below. Although 

SLS is correct that plaintiffs should have made this argument sooner, we 

observe that SLS has not been deprived of the opportunity to provide 

responsive briefing. SLS included in its motion to strike a substantive 

analysis of Hart and arguments as to why it is purportedly distinguishable, 
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and after the conclusion of briefing, we requested and received supplemental 

briefing from SLS on Chacker. Under these circumstances, and because our 

independent research would have uncovered Hart and Chacker in any event 

(Giraldo v. Department of Corrections & Rehabilitation (2008) 168 

Cal.App.4th 231, 251 [court is not constrained to authorities cited by parties 

in their briefs]), we deny SLS’s motion to strike plaintiffs’ letter of authority 

and exercise our discretion to consider Chacker for the first time on appeal.

As for plaintiffs’ forfeiture, it is well settled that when an issue raises a 

pure question of law, we may consider it for the first time on appeal. 

(Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 219.) Our 

interpretation of the note and deed of trust is a question of law (State Farm 

Fire & Casualty Co. v. Lewis (1987) 191 Cal.App.3d 960, 963 [contractual 

interpretation is a question of law]), as is the applicability of the holdings of 

Hart and Chacker to the instant case. Accordingly, we exercise our discretion 

to consider these legal issues for the first time on appeal.

Although neither Hart nor Chacker addressed provisions identical to 

section 6(E) of the promissory note or section 22 of the deed of trust at issue 

here, we conclude these provisions are, like sections 9 and 14 of the deed of 

trust, best construed as referring to amounts that a note holder would charge 

against borrowers, not that a court would separately order as an award of 

attorney fees. Notably, section 6(E) of the promissory note refers to the note 

holder’s right to be “paid back” its costs and expenses (including attorney 

fees), a term that reasonably relates to the borrower’s loan obligation. The 

language of Section 22 is less pointed, entitling the lender “to collect” 

attorney fees, but this must be read in conjunction with the other provisions 

of the deed of trust, including section 9’s explicit mandate that the lender’s 

attorney fees “shall become additional debt.” Reasonably construed, all of the 
20

clauses in question provide the same remedy to the enforcing lender or note 

holder, as the incurred attorney fees are part of the same effort to enforce the 

note and invoke the power of sale under the trust deed. It is of no 

consequence that the note and trust deed are separate contracts, as “[s]everal 

related contracts may be interpreted together, if between the same parties 

and part of substantially the same transaction.” (Fireman’s Fund Ins. Co. v. 

Workers’ Comp. Appeals Bd. (2010) 189 Cal.App.4th 101, 111, citing Civ. 

Code, § 1642.)

Santa Clara Savings & Loan Assn. v. Pereira (1985) 164 Cal.App.3d 

1089 (Pereira) does not persuade us otherwise. While Pereira held that a 

lender was entitled to attorney fees under a clause materially similar to 

section 9 of the deed of trust here (id. at pp. 1097–1098), we echo Hart’s 

observation that Pereira was simply not called upon to decide whether those

fees could be separately awarded instead of being added to the borrower’s 

indebtedness. (See Hart, supra, 27 Cal.App.5th at p. 328 [Pereira did not 

“actually analyze[] whether paragraph 9 specifically provided for an award of 

attorney’s fees”].)5 Cases do not stand for propositions not actually 

considered by the court. (Mares v. Baughman (2001) 92 Cal.App.4th 672, 

679.)

For these reasons, we conclude section 6(E) of the promissory note and 

sections 9, 14, and 22 of the deed of trust allow attorney fees incurred in 

enforcing the note and deed of trust to be added to the loan amount but do

5 Instead, Pereira addressed (and rejected) arguments that the lender 

was not entitled to attorney fees under this provision because (1) the 

borrowers did not breach the deed of trust, and (2) the lender’s attempt to 

enforce an acceleration clause was not an action necessary to protect the 

lender’s security interest. (Pereira, supra, 164 Cal.App.3d at pp. 1097–1098.)
21

not authorize a separate fee award to SLS, the loan servicer. Accordingly, we 

reverse the order awarding contractual attorney fees to SLS.6

DISPOSITION

The postjudgment order awarding SLS its attorney fees is reversed. In 

all other respects, the judgment is affirmed. In the interests of justice, all 

parties are to bear their own costs on appeal.

TUCHER, P.J.

WE CONCUR:

PETROU, J.

RODRÍGUEZ, J.

Rezapour et al. v. U.S. Bank National Association et al. (A156855)

6 In light of this conclusion, we need not address plaintiffs’ additional 

arguments challenging the attorney fee award.