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Filed 5/13/16 Wray v. Bank of America CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

NORMAN J. WRAY et al ., Plaintiffs and Appellants,

v. BANK OF AMERICA, N.A. et al ., Defendants and Respondents. A142720 (Sonoma County Super. Ct. No. SCV 253008)

Plaintiffs Norman and Anna Wray appeal from the dismissal of th eir lawsuit
which seeks to forestall a nonjudicial foreclosure sale. As in numerous foreclosure cases in recent years, the Wrays claim an assignment of their loan w as not properly effectuated and the foreclosing institution has no right to proceed

. However, unlike many of these

case s , the Wrays allege only a claim to quiet title. The trial court sustained defendants’
de murrer to the Wrays’ third amended complaint on the ground they did not, and could not, allege tender of the debt they owe. I n it s recent decision in Yvanova v. New Century Mortgage Corp. (2016)
62 Cal.4th 919 ( Yvanova ) , the Supreme Court did not address the issue of tender, concluding only that a mortgago r has standing to pursue a post sale wrongful foreclosure claim for damages on the basis of allegations the transfer of their loan to the foreclosing
institution was void (not merely voidable) . The court expressly did not reach other issues percolating in the post sale wrongful foreclosure context, let alone in the context of preemptive claims.2

We need not, and do not, reach the issue of tender, since Yvanova le aves intact the uniform view of the courts of appeal that preemptive challenge s to nonjudicial foreclosure cannot be predicated solely on gener ic allegations that a foreclosing entity lacks authority to do so. As th e court explained in Gomes v. Countrywide Ho me Loans,
Inc. (2011) 192 Cal.App.4th 1149, 1154 ( Gomes ), nonjudicial foreclosure is a creature of

statute and intended to be an efficient and expeditious means of recovering on a delinquent debt ; it cannot be morphed into a protracted judicial process on the basis of vacuous allegations of lack of authority to foreclose.
E ven assuming there may be cases in which a plaintiff’s allegations are sufficiently specific to fall outside Gomes (and within what has come to be called the

“ Gomes exception”), the Wrays’ allegations, despite three amended pleadings and their proposed additions suggested at oral argument, do not suffice , particularly in light of the loan documents that were properly s ubject to judicial notice

. We therefore affirm the judgment.
B AC KGROUND The Wrays allege the following in their operative complaint : They obtained a $2.1 million mortgage loan from Washington Mutual in 2005 , secured by their home in Glenn
Ellen. Washington Mutual “disposed of its interest” in th e loan “in 2005.” Washington Mutual went bankrupt in 2008 , and the FDIC took over as receiver. Judicially noticeable documents (see Yvanova , supra, 62 Cal.4th at p. 924, fn. 1)
show that in 2005, within days of Washington Mutual entering bankruptcy, defendant JP Morgan C hase, N.A. (Chase) agreed with the FDIC to acquire the fa iled bank’s assets.
I n June 2012, Chase, acting as the attorney in fact for the FDIC, executed an assignment of the Wray s ’ deed of trust and attendant rights to defendant Bank of America, N.A. (Bo fA)

. Two months later, in August 2012, defendant MTC Financial
Inc . d/b/a Trustee Corps (Trustee Corps) , claiming authority to act as an agent for the

trustee or beneficiary of the deed of trust BofA , recorded a notice of def ault and election3

to sell , asserting the Wrays were $299,248.88 in arrears

. The notice told the Wrays to contact BofA care of Trustee Corps to arrange for payment of the amount owed. In December 2012, Trustee Corps recorded a notice of trustee’s sale estimating the total unpaid ba lance, plus costs, expenses, a nd advances, as $2,437,665.31. Meanwhile, in August 2012, the Wrays wrote to the FDIC pursuant to the federal
Freedom of Information Act (FOIA; 5 U.S.C. § 552)

. They sought “any and all information the FDIC may have” regard ing the ownership or transfer of their note or loan, and regarding “whether or not the rights transferred to [Chase] in the FDIC transactions in regards to [our] note/loan were servicing rights or rights to whole loan s, or otherwise.” The FDIC reported it had no responsive records.
T he Wrays eventually filed suit against BofA, Chase, and Trustee Corps , seeking
to halt the foreclosure

. Their initial complaint alleged causes of action for quiet title, declaratory relief, and injunctive relief. In respon se to a demurrer, the Wrays file d a first amended complaint , asserting a single cause of action to quiet title. BofA and Chase then successively demurred to the first, second, and third amended complaints , supported by a request for judicial notice of a number of documents pertinent to the foreclosure.
Each of the Wrays’ amended complaint s alleged quiet title , but failed to allege
the y had tendered the amount owed on the loan. The trial court viewed th is as a fatal
defect , denied leave to amend, and entered judgment in favor of BofA and Chase.
D ISCUSSION By statute, a complaint to quiet title must be verified and include the following: a property description, the basis of the plaintiff ’ s title, “[t] he adverse claims to the title of the plaintiff against which a determination is sought,” the date as to which that determination is sought, and a prayer “for the determination of the title of the plaintiff against the adverse claims.” (Code Civ. Proc., § 761.020.)
I t has also long been held that a mortgagor cannot quiet title without discharging
his debt , else the “cloud upon his title persists

. ” ( Aguilar v. Bocci (1974) 39 Cal.App.3d4

475, 477

– 478 (

Aguilar ) , citing Burns v. Hiatt (1906) 149 Cal. 617, 621

- 622 [“As long as the obligation to pay the debt exists, it is not equitable that the mortgagor should have relief against the mortgage given to secure the same, and such relief can be given only on condition that he discharges the obligation.”]; see also Booth v. Hoskins (1888) 75 Cal. 271, 276.) The mortgagor may remain in possession, but cannot clear his title without satisfying his debt. (

Aguilar , supra , at pp. 477

– 478.) This rule recognizes that quiet title “is the relief gr anted once a court determines that title belongs in plaintiff. . . . In other words, in such a case, the plaintiff must show he has a substantive right to relief before he can be granted any relief at all.” ( Leeper v.
Beltrami (1959) 53 Cal.2d 195, 216.) “It is thoroughly settled . . . that a plaintiff in an action to quiet title must depend on the strength of his own title and not on the weakness of the title of defendants; that if he fails to prove title in himself he cannot recover.” ( Swann v. Carson (1943) 56 Cal.App.2d 502, 504; see also Ernie v. Trinity Lutheran
Church (1959) 51 Cal.2d 702, 706.)
Some c ases in the wake of the recent wave of foreclosures have continued to appl y this rule

— borrower s with delinquent loan obligations may not “quiet tit le against a secured lender without first paying the outstanding debt on which the mortgage or deed of trust is based.” ( Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86.) This is so even if the borrower claims the lender has no right to foreclose. ( Ibid. ) “Allowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt.” ( Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526; see also G avina v. Smith (1944) 25 Cal.2d 501, 506 [“One who violates his contract cannot have recourse to equity to support that very violation.”] .) However, the tender rule is subject to exceptions , and other recent foreclosure
cases have excused tender in some c ontexts. (See, e.g., Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1100

– 1101 [holding tender not required in connection with5

postsale wrongful foreclosure claim, and suggesting same for postsale quiet title claim]; Intengan v. BAC Home Loans Serv icing LP (2013) 214 Cal.App.4th 1047, 1053 [tender not required where injunctive relief sought on ground lender failed to follow foreclosure procedural requirements]; Pfeifer v. Countrywide Home Loans, Inc. (2012)
211 Cal.App.4th 1250, 1255, 1280 [tender may be unnecessary where declaratory relief sought when “lender has not yet foreclosed and has allegedly violated laws related to avoiding the necessity for a foreclosure”] ; Onofrio v. Rice (1997) 55 Cal.App.4th 413, 424 [tender not required in connection with post sale claim for rescission of trustee’s sale; tender not required where it would be inequitable, where validity of underlying debt is challenged, and where the debtor claims damages offsetting amount due ]; cf. Yvanova,

supra, 62 Cal.4th at p. 929, fn. 4 [noting “[t]ender has been excused when, among other circumstances, the plaintiff alleges the foreclosure deed is facially void, as arguably is the case when the entity that initiated the sale lacked authority to do so”].) The Wrays have never alleg ed tender of the debt they owe . Instead, they maintain
the tender rule should not apply to a quiet title claim brought to prevent foreclosure on the basis of allegations the foreclosing party has no interest in the debt whatsoever. We
need not resolve th is posited tender issue , however, as there is another threshold problem

w ith the Wrays’ lawsuit.
It is no w well established that a defaulting borrower has no right, on a mere hope or hunch, to preemptively test in court whether an entity conducting a nonjudicial foreclosure in fact has authority to foreclose. ( Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 5 13 ( Jenkins ) [allowing a “preemptive” action “would result in the impermissible interjection of the courts into a nonjudicial scheme enacted by the California Legislature”] ; Gomes , supra, 192 Cal.App.4th at p. 1154 [“Nothing in the statutory provisions est ablishing the nonjudicial foreclosure process suggests that such a judicial proceeding is permitted or contemplated.”] ; see also Kan v. Guild Mortgage Co

. (2014) 230 Cal.App.4th 736, 743

– 744 [applying Gomes rule to a quiet title action to6

prevent foreclosu re] ; Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1493 ( Rossberg ) ; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013)
219 Cal.App.4th 75, 82

– 83; Robinson v. Countrywide Home Loans, Inc. (2011)
199 Cal.App.4th 42, 46 .) In Yva nova , the Supreme Court expressly commented it was not disapproving “[t]his aspect of Jenkins , disallowing the use of a lawsuit to preempt a nonjudicial foreclosure” in ruling on “a borrower ’ s standing to challenge an assignment in an action seeking remedies for wrongful foreclosure.” ( Yvanova, supra, 6 2 Cal.4th at
p. 933 , italics omitted; see Saterbak v. JPMorgan Chase Bank, N.A. (2016)
245 Cal.App.4th 808, 815 .) The comprehensive statutory framework governing nonjudicial foreclosure sales is
inten ded to be exhaustive. ( Debrunner v. Deutsche Bank Nat ional Trust Co. (2012)
204 Cal.App.4th 433, 440.) A borrower cannot halt the nonjudicial foreclosure process with boilerplate allegations and thereby put the burden on the foreclosing entity in every

c ase to establish in court its right to proceed with a nonjudicial foreclosure. ( Jenkins , supra , 216 Cal.App.4th at pp. 512, 515.) A “preemptive” cause of action “ ‘would fundamentally undermine the nonjudicial nature of the process and introduce the
poss ibility of lawsuits filed solely for the purpose of delaying valid foreclosures.’ ” ( Id. at p. 513, quoting Gomes , supra , 192 Cal.App.4th at p. 1155.) Here, for example, the Wrays have remained in their home since 2012

— nearly four years

— without making any loan payments.
While Gomes suggests a borrower may be able to pursue preemptive declaratory
relief if he or she can “identif[y] a specific factual basis for alleging that the foreclosure was not initiated by the correct party” ( Gomes , supra , 192 Cal.App. 4th at pp. 1155

– 1156 ), the Wrays’ pleaded allegations , and those they proposed for the first time at oral argument, are not sufficiently specific to come with in any exception to Gomes

. The allegation in the operative complaint that Washington Mutual “disposed of its interest” in the loan “in 2005 , ” in and of itself, does not come close to providing a7

sufficient factual basis for a preemptive suit. At oral argument, counsel proposed further alleging that Washington Mutual disposed of the loan prior to 2008 ( when the FDIC and
Chase signed the purchase and assumption agreement ) and so could not have transfer red
the loan to the FDIC in 2008 and on to BofA

— because the loan “ may have gone either into a securitized trust or to the depositor.” Such speculati on does not advance the sufficiency of their complaint. ( See Cypress Semiconductor Corp

. v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243, 262 [ “[A]n allegation that something ‘apparently’ happened is speculative on its face. It has no place in a pleading, as it is pregnant with the admission that it may not have happened at all.” ] ; see also Gomes , supra , 192 Cal.App.4th at pp. 1158

– 1159.) The alleged F OIA correspondence with the FDIC also does not support a preemptive suit. The FDIC ’s response

— that it had no records pertaining to the Wrays’
loan

— is by no means an “admission , ” as the Wrays claim , that the FDIC never
transferred the loan. The Wrays’ letter sought and the FDIC’s response addresse d only the FDIC’s possession of documents

. Furthermore, this subject was addressed in the purchase and assumption agreement between FDIC and Chase , which was properly a matter of judicial notice . That agreement required Chase to take on the failed bank’s loan records and assigned Chase the prima ry responsibility for preserving records and responding to of

ficial record requests. Thus, the Wrays’ assertion that the FDIC’s correspondence indicates a failed transfer is , again, unfounded speculation. At oral argument, counsel stressed a n asserted contradiction between two of the judicially

- noticed documents

— the 2008 purchase and assumption agreement and the
2012 recorded assignment

. The 2008 agreement, the Wrays claim, shows the FDIC assigned their loan to Chase in 2008. The 2012 assignment state s, in the present tense, that it is effectuating an assignment to BofA from the FDIC, by its attorney

- in

- fact Chase, and not from Chase directly

. The Wrays postulate the FDIC had nothing to assign in 2012 because the 2008 agreement had already transferred its interest in the loan to Chase.8

However, section 9.2 of the 2008 agreement expressly contemplates the FDIC and Chase would cooperate in recording future assignments as necessary to effectua te the agreement. The 2012 recorded assignment would fall wit hin this provision. Furthermore, a recorded assignment was not required to effectively transfer the
loan to BofA. (See Herrera v. Federal Nat. Mortg age Assn. (2012) 205 Cal.App.4th 1495, 1506.) Here, Chase was the attorney

- in

- fact responsible for the 2012 recorded assignment to BofA . Chase is a defendant in this lawsuit , and Chase has consistently
disclaimed any ownership interest in the Wrays’ $2.1 million debt and agreed BofA is the entity with an interest in the loan and authority to foreclose

. It short, a ll the relevant
financial institutions are joined in this action , and t he banks all agree

— and the documents support

— that BofA has the right to foreclose. T he Wrays , in turn, have not offered any specifics as to how the posited contra diction in the two documents would lead to some third party , about whom they can only speculate, having the true right of foreclosure. Given these circumstances, we conclude that even the Wrays’ elev enth

- hour effort at oral argument to augment their allegations is insufficient to state a preemptive wrongful foreclosure claim. Ultimately, we have a $2.1 million loan to the Wrays, an assignment of the Wrays ’ loan to BofA, a notice of default on BofA’s behalf, and notice of trustee’s sale. There are no sufficiently specific allegations that call this series of events into question , and t he Wray’s speculation cannot reroute this nonjudicial foreclosure into the court system. (See, e.g., Rossberg , supra , 219 Cal.App.4th at
p. 1493.)
D ISPOSITION The judgment is affirmed.9 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Margulies, J.