Filed 5/20/15 Harjo v. Deutsche Bank Nat. Trust CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

BEN R. HARJO et al., Plaintiffs and Appellants,

v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, etc., et al., Defendants and Respondents. D065866

(Super. Ct. No. 37-2013-00045060- CU-OR-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed.

Ben R. Harjo and Jennifer E. Harjo, in pro. per., for Plaintiffs and Appellants. Severson & Werson, Jan T. Chilton, Mich ael G. Cross and Kerry W. Franich for Defendants and Respondents. Plaintiffs and appellants Ben R. Harjo and Jennifer E. Harjo filed a complaint against an assignee of a deed of trust on th eir home, defendant and respondent Nationstar Mortgage LLC (Nationstar), amo ng others. The Harjos' comp laint alleges the assignment2 of the deed of trust was improper and they seek to prevent Nationstar from foreclosing on it, notwithstanding the fact the Harjos are in arrears on payments due on the promissory note, which is secured by the deed of trust.
The trial court sustained a demurrer f iled by Nationstar and the other defendants without leave to amend and dismissed the Harj os' complaint. The Harjos filed a timely notice of appeal. We affirm. As we explain, the Harjos ' claims for relief under the terms of the Homeowner Bill of Rights (HBR) (See Civ. Code, § 2920.5 et seq.) 1 largely fail because the allegations of their complain t show that they were given the opportunity to apply for a loan modification, their application was denied , and, on appeal to the entity servicing the loan, the denial was upheld. The Harjos ma ke additional claims based on two alleged circumstances: (1) at some point shortly afte r the Harjos executed the note secured by the deed of trust, their original lender, defendant First Magnus Financia l Corporation (First Magnus) assigned the note to defendant and respondent De utsche Bank National Trust Company (Deutsche Bank), and, thereafter, Fi rst Magnus was the subject of a bankruptcy proceeding; and (2) after the Magnus bankru ptcy proceeding comme nced, the corporation identified in the deed of trust as Magnus's nom inee recorded an assi gnment of its interest in the deed of trust to another corporation. As we explain in greater detail below, these circumstances had no material impact on the Ha rjos' interests or obligations and do not in any manner prevent Nationstar, as trustee, from foreclosing on th e deed of trust.

1 All further statutory references are to the Civil Code.3 A. Factual Allegations The Harjos' second amended complain t (SAC) makes the following factual allegations:
1. 2006 Purchase In 2006, the Harjos purchased a home in Encinitas and obtained purchase money financing in the amount of $956,250 from Ma gnus. As is common, the financing was memorialized in a promissory note and deed of trust the Harjos provided Magnus. Under the terms of the deed of trust, the Harjos assigned their interest in the home to Fidelity National Title as trustee for defendant and resp ondent Mortgage Electronic Register System (MERS), which was the named beneficiary of the deed of trust. With respect to MERS, the deed of trust stated: "The beneficiar y of this Security Instrument is MERS (solely as nominee for Lender and Lender's succe ssors and assigns) and the successors and assigns of MERS." The Harjos are informed and believe th at "shortly after executing the Note, Defendant First Magnus gran ted, assigned and transferred the Note to Defendant Deutsche where it was pooled with thousands of other promissory notes, then transferred into a pre-designed trenched classifications [ sic ] to become securitized as shares for sale in the open market." On May 30, 2008, Magnus "was dissolved and ceased to exist as a legal entity."
2. Notice of Default On August 21, 2009, MERS and de fendant Cal-Western Reconveyance Corporation (Cal-Western) recorded a notice of default on the Harjos' property; the notice stated that the Harjos had failed to make pa yments of principal and interest due on the4 note and that MERS had elected to sell th e Harjos' home to satisfy the obligation. On February 22, 2011, MERS recorded an assignment of its interest in the deed of
trust and role as the lender's nominee to defe ndant and respondent Aurora Loan Services, LLC (Aurora). The Harjos are informed an d believe the assignment bears the forged signature of the person who signed on behalf of MERS.
3. Notice of Trustee's Sale/Forbearance On February 28, 2011, MERS and Cal-West ern recorded a notice of trustee's sale, which alleged the Harjos were in default under the terms of the note and set a date for sale of the home. On November 26, 2011 , the Harjos and Auro ra entered into an agreement under which Aurora ag reed to forebear foreclosur e and the Harjos agreed to repay the arrearages due on th e note. By its terms, the forbearance agreement required that the Harjos make a final payment of $98,449 on May 1, 2012 and further provided that the forbearance agr eement itself would expi re on May 1, 2012. On July 1, 2012, Au rora assigned its interest in th e deed of trust to defendant Nationstar Mortgage LLC (Na tionstar). On July 29, 2012, the Harjos applied to Nationstar for a mortgage modification. On April 9, 2013, Nationsta r recorded a second notice of trustee's sale.
4. These Proceedings The Harjos commenced this action shortly before Nationstar r ecorded the second notice of trustee's sale, and, on May 30 , 2013, the Harjos obtained a temporary restraining order preventing the trustee's sale . Also on May 30, 2013, Nationstar notified the Harjos it would not enter into a mortga ge modification agreem ent with them. On July 22, 2013, Nationstar rescinded th e notice of default and election to sell5 under the deed of trust. On July 25, 2013, Nationstar sent th e Harjos a revised notice that it would not enter into a mortgage modifi cation agreement; unlike the May 30, 2013 notice, the July 25, 2013 notic e included information about the Harjos' appeal rights. In August 2013, the Harjos sent Nationsta r an appeal of Nationstar's decision not to modify the Harjos' note and deed of trust, and, in October 2013 , Nationstar denied the Harjos' appeal. B. The Harjos' Claims The Harjos' SAC set forth a total of 12 causes of action. Nationstar filed a demurrer to the SAC, and the trial court su stained the demurrer w ithout leave to amend and dismissed the complaint. The Harj os filed a timely notice of appeal. As the defendants point out, on appeal the Ha rjos only assert the validity of four of the causes of action in the SAC: injunctive re lief for violations of the HBR, quiet title, cancellation of instruments and an accounting.
DISCUSSION
I We review orders sustaining demurrers w ithout leave to amend under two distinct standards of review on appeal. ( Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879). We first review the SAC de novo to determine if the complaint alleges facts
sufficient to state a cause of ac tion under any legal theory. ( McCall v. PacificCare of Cal., Inc. (2001) 25 Cal.4th 412, 415). We then review the denial of leave to amend for abuse of discretion. ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 ["If
the court sustained the demurrer without leav e to amend . . . we must decide whether there is a reasonable possibility th e plaintiff could cure the defect with an amendment. . . .6 The plaintiff has the burden of proving that an amendment would cure the defect."].) On appeal, the reviewing court must tr eat the demurrer as admitting all properly pleaded material facts; however, this doe s not include contentions, deductions or conclusions. ( Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4t h 962, 966–967). In addition to allegations in the complaint, the reviewing c ourt must properly consider evidentiary facts that appe ar in exhibits attached to the complaint. ( Satten v. Webb (2002) 99 Cal.App.4th 365, 375) . Furthermore, "[a]ny allega tions in the complaint which
are inconsistent with facts set out in an un ambiguous written instrume nt, incorporated by reference, may be stricken." ( Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.)
II In the first cause of action, the SAC a lleges that the defendants violated four provisions of the HBR—sections 2923.6, 2923.7, 2924.10 and 2924.11— and that the violations give rise to the right to inju nctive relief. As the defendants point out, the record shows that no violatio n of the statutes occurred. A. Section 2923.6 As of January 1, 2013, section 2923.6 re quires that before recording a notice of default or notice of sale or conducting a truste e's sale, loan servicers, such as MERS or Nationstar, must offer borrowers any workout plan or loan modi fication that is consistent
with the servicer's contractual or other au thority. (§ 2923.6, su bd. (c).) The statute further prevents loan servicer s from recording a notice of default or notice of sale or conducting a trustee's sale wh ile a borrower's application fo r a workout plan or loan modification is pending or on appeal from a servicer's denial of the application. ( Ibid .)7 More particularly, if a loan servicer de nies an application fo r a workout plan or loan modification, the loan servicer must advise the bo rrower of the reasons for the denial. (§ 2923.6, subd. (f).) Nationstar's July 25, 2013 letter denying their application
for a loan modification stated: "We . . . re gret to inform you that you do not meet the program guidelines because we are unable to create an affordable payment within the program terms." The denial letter sets forth th e Harjos' right to appeal within 30 days, the procedure for appeal and other alternatives by which the Harjos might avoid foreclosure. Contrary to the Harjos' contention, Na tionstar's July 25, 2013 letter meets the requirements of section 2923.6, subdivision (f). If a denial was ba sed on disallowance by an investor, a net present value calculation, or the debtor's failure to meet requirements of a previous loan modification, the denial must give the debtor noti ce of those reasons. (See § 2923.6, subd. (f)(2), (3) & (4).) Here, Na tionstar's denial was based solely on the affordability of a modification, and, thus, th e disclosure requirements of section 2923.6, subdivision (f)(2), (3) and (4) were not applicable. Because the letter provided the Harjos with notice of the time and manner in which to appeal the deni al and other alternatives to foreclosure, it also met the other requireme nts of section 2923.6, subdivision (f). (See § 2923.6, subd. (f)(1) & (5).) In sum, the record , by way of Nationstar's July 25 , 2013 letter, demonstrates that Nationstar met the requirements of section 29 23.6 and, in particular, all the requirements of section 2923.6, subdivision (f). B. Section 2923.7 Section 2923.7 requires that when a bo rrower requests some form of foreclosure avoidance, the loan servicer must promptly provide the borrower with a "single point of8 contact," which the statute defines as an i ndividual or team of pe rsonnel, each of whom
has access to informati on about the borrower, his or her loan, the programs available to the borrower, and access to individuals with th e ability and authority to stop foreclosure proceedings when nece ssary. (§ 2923.7, s ubds. (b), (c) & (e).) Nationstar sent the Harjos its first no tice denying their application for a loan modification on May 23, 2013. The notice di d not include information about the Harjos' appeal rights, but it did contain the followi ng statement: "If you have any questions regarding this notice, think the reason(s) st ated herewith no longer apply or if you experience additional changes, which you feel warrant consid eration, your Foreclosure Prevention Specialist is Stephe n Ellis and can be reached at 8774485023 or via mail at 350 Highland Drive, Lewisville, TX 75067." As defendants contend, on its face this notice satisfied the requiremen t that the Harjos be given a single point of contact; moreover, the SAC does not allege that Mr. Ellis did not perform any of the duties required of a "single point of c ontact" under section 2923.7. In sum then, again the record shows on its face that Nationstar in fact met the requirements of the provisions of the HBR the Harjos assert. C. Section 2924.10 Section 2924.10 requires that within five business days after a borrower submits a complete loan modification to a loan servicer, the loan se rvicer must send the borrower acknowledgement that it has r eceived the application and information about the loan modification process. (See § 2924.10, su bd. (a)(1)–(4).) Sec tion 2924.10 became effective on January 1, 2013. (S ee Stats. 2012, ch. 86, § 13.) The Harjos' loan modification application was made on July 29, 2012. There is9 nothing on the face of the statute, or in its history, that suggests the acknowledgement requirement of section 2924.10 applies to lo an modification applications made before January 1, 2013. Thus, sect ion 2924.10 will not support a claim ba sed on Nationstar's failure to promptly acknowledge the Ha rjos' 2012 modification application. D. Section 2924.11 Section 2924.11 prevents a loan servicer from recording a notice of default or notice of sale, or conducting a sale, if it has agreed in writing to a work out, loan
modification or other foreclosure alternative and the borrower is in compliance with the agreement. (See § 2924.11, subd. (a).) Although not specific, the SAC alleges the defendants also violated section 2924.11. Ap parently, the Harjos re ly on the forbearance agreement they made w ith Aurora in November 2011. As we have noted, the forbearance agreement by its terms required the Harjos ma ke a payment of $98,449 on or before May 1, 2012 and further provided that the forbearance agreement expired on that date. There is nothing in the record that alleges or show s that any of the defendants recorded a notice
of default or sale or conducted a sale durin g the term of the forb earance agreement. Thus, the record will not support any allega tion the defendants viol ated section 2924.11. In sum then, on this record, the SAC does not set forth any actionable violation of
the HBR.
III The Harjos contend that in addition to claims for relief under the HBR, they are entitled to quiet title, cancellation of instruments, and an accounting. None of the legal theories the Harjos adva nce support these claims.10 A. Quiet Title and Cancellation of Instruments By way of their first and se cond causes of action, the Ha rjos allege the defendants have "no right, title or interest" in their hom e, that MERS's 2011 assignment of the deed
of trust to Aurora was invalid and that Aurora's later assignm ent to Nationstar was similarly invalid. In the trial court and on appeal, the Harj os have argued the de fendants have no interest in their property because, following Magnus's di ssolution, MERS had no power
to transfer the deed of trust to Aurora and, alternatively, because the Harjos are informed and believe the notary's signature on the assignm ent was forged. The Harjos allege that the forged assignment al so gives them the right to cancel both assignments of the deed of

trust. In short, by way of their quiet title and ca ncellation of instrument causes of action, the Harjos have directly challe nged the defendants' right to fo reclose on the deed of trust. As the defendants point out, the trustor under a deed of trust does not have standing to bring an action challenging th e authority of the person or entity commencing foreclosure proceedings. ( Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 511- 512; Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal. App.4th 433, 440- 442; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154.) "California courts have refused to delay th e nonjudicial foreclosur e process by allowing trustor-debtors to pursue pree mptive judicial actions to challenge the right, power, and authority of a foreclosing 'beneficiary' or beneficiary's 'agent' to initiate and pursue foreclosure. [Citations.]" ( Jenkins v. JPMorgan Chase Bank, N.A. , supra , at pp. 511- 512.) "The recognition of the right to bring a lawsuit to de termine a nominee's11 authorization to proceed with foreclosur e on behalf of the noteholder would fundamentally undermine the nonjudicial na ture of the process and introduce the possibility of lawsuits filed so lely for the purpose of dela ying valid foreclosures." ( Gomes v. Countrywide Home Loans, Inc. , supra , at p. 1155.) There are other defects in the Harjos' theo ries. Under any fair reading of the SAC, Magnus assigned its interest in the note to Deutsche Bank before Magnus was dissolved; as the Harjos themselves acknowledge, un less otherwise agreed, assignment of the underlying debt to Deutsche Bank accomplished assignment of any security for the debt, in particular the deed of trust. (See § 2936 .) By the express terms of the deed of trust, MERS was the nominee of both Magnus and any of its assigns . Thus, by the time Magnus was dissolved, both the note and deed of trust had been effectively assigned to Deutsche Bank, and MERS, under the express te rms of the deed of trust, was then acting
as Deutsche Bank's nominee. Given these ci rcumstances, Magnus's dissolution did not affect the validity of MERS's as signment of its interest in the deed of trust to Aurora or Aurora's later assignment to Nationstar. In this regard, the Harjos' reliance on th e prospectus that was issued with respect to the securitization of their note is unavailing. Nothing in the prospectus supports their contention that, by referring to MERS as th e nominee on mortgages and deeds of trust, any of the defendants agreed or intended that the Harjos' note would be "split" from the
deed of trust so that the note wo uld become an unsecured debt. Moreover, any alleged forgery 2 by a notary of the assignme nt of the deed of trust

2 Evidently, the Harjos' forgery allega tion is based on their belief the notary who verified the assignment was a so-called "r obo-signer," who did not fully perform her12 from MERS to Aurora will not give the Harjos a ny right to relief by way of a quiet title or cancellation of instruments. Any forged or defective assignment of the deed of trust did not have any impact on the Harj os' interests. As the court in Fontenot v. Wells Fargo , supra , 198 Cal.App.4th at pa ge 272 stated in rejecting a si milar challenge to the validity of a MERS assignment: "Even if MERS lack ed authority to transfer the note, it is difficult to conceive how plaintiff was prej udiced by MERS's purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note. Plaintiff effectiv ely concedes she was in default, and she does not allege that the transfer to HSBC inte rfered in any manner with her payment of the note (see, e.g., Munger v. Moore (1970) 11 Cal.App.3d 1, 7- 8 [failure by lender to accept timely tender]), nor that the original lender wo uld have refrained from foreclosure under the circumstances presented. If MERS indeed lacked authority to make the assignment, the true victim was not plaintiff but the or iginal lender, which would have suffered the unauthorized loss of a $1 million promissory note." B. Accounting As the defendants point out, the Harjos' accounting claim must fail because they do not claim and likely cannot claim that they are owed any money with respect to the note and deed of trust. (See Teselle v. McLoughlin (2009) 173 Cal.A pp.4th 156, 179.) Indeed they do not dispute that, as set forth in the notices of default attached as exhibits

duties as a notary. ( Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.)13 to the SAC, they failed to make payments on the note they execut ed at the time they purchased their home.
IV The Harjos contend they are also entitle d to relief under theories adopted by the
court in Glaski v. Bank of America (2013) 218 Cal.App. 4th 1079, 1094-1098 ( Glaski ). In Glaski , following the sale of his home at a truste e's sale, the plaintiff brought a wrongful foreclosure action against the bank that cond ucted the sale. The plaintiff alleged the defendant bank did not have the power to con duct the sale because the assignment of the note and deed of trust to the bank's pred ecessor, a securitized trust, had occurred after the closing date of the trust and, under governin g New York law, was therefore void, rather
than voidable. The court in Glaski held that a borrower could challenge a void transfer of a note and deed of trust, but not a voidable transfer. ( Id. at p. 1095.) Glaski is not controlling here for two reasons. First, the predicate for relief under Glaski —that there was a transfer to a trust governed by New York law after the trust had closed—is no where alleged in the SAC. Second, considerable doub t as to the validity of Glaski has been expressed by a number of other courts. (See Siliga v. Mortgage Electroni c Registration Systems, Inc. (2013) 219 Cal.App.4th 75 [rejecting Glaski and finding borrower has no standing to challenge assignment of deed of trust]; Sandri v. Capital One, N.A. (In re Sandri) (Bankr. N.D.Cal. 2013) 501 B.R. 369, 3 74-375 [explaining how Glaski unpersuasively departs from California jurisprudence]; Rajamin v. Deutsch Bank Nat'l Trust Co. (2d Cir. 2014) 757 F.3d 79, 90 [rejecting Glaski as inconsis tent with New York and other court's interpretations of New York law].) In par ticular, we question whet her, as here, borrowers14 who cannot show that they have been in any manner prejudice d by a procedural defect in the assignment of their notes and deeds of trusts may make a claim challenging those assignments. (See Jenkins v. JPMorg an Chase Bank, N.A. , supra , 216 Cal.App.4th at pp. 511-512; Debrunner v. Deutsche Bank National Trust Co. , supra , 204 Cal.App.4th at pp. 440-442; Gomes v. Countrywide Home Loans, Inc. , supra , 192 Cal.App.4th at p. 1154.)
V The Harjos amended their complaint twice. Moreover, none of the facts alleged show that any conduct on the part of the de fendants harmed their legitimate interests. Under these circumstances, the trial court di d not abuse its discretion in sustaining the
defendants' demurrer with out leave to amend.
DISPOSITION The judgment is affirmed. Defendant s to recover their costs of appeal.

BENKE, Acting P. J.
WE CONCUR:

HUFFMAN, J.

HALLER, J.