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Filed 9/28/15 Boyle v. Bank of America CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Nevada)

----

TIM BOYLE et al.,

Plaintiffs and Appellants,

v.

BANK OF AMERICA, N.A., et al.,

Defendants and Respondents.

C074713

(Super. Ct. No. 78468)

In 2006 plaintiffs Tim and Darlene Boyle took out a mortgage loan for $736,000. 

The Boyles defaulted on the loan four years later and, in an attempt to forestall 

foreclosure, filed suit against defendants Bank of America, N.A., and Mortgage 

Electronic Registration Systems, Inc. (MERS). Their second amended complaint alleged 

fraud, civil conspiracy, wrongful foreclosure in violation of Civil Code sections 2924 and 

2923.5, and violation of Business and Professions Code section 17200 et seq.

1

 The trial 

 

1 All further statutory references are to the Civil Code unless otherwise designated.
2

court sustained defendants’ demurrer without leave to amend as to all causes of action 

except the violation of section 2923.5. After the Boyles requested dismissal of this cause 

of action, the trial court entered judgment in favor of defendants. On appeal, the Boyles 

contend they sufficiently alleged facts in support of their causes of action, or could have 

amended their complaint to allege such facts. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2006 the Boyles executed a promissory note in the amount of $736,000 in 

favor of Countrywide Home Loans, Inc. (Countrywide), secured by a deed of trust on the 

property. The deed of trust identified the Boyles as the borrower, Countrywide as lender, 

ReconTrust Company, N.A. (ReconTrust), as the trustee, and MERS as the beneficiary 

acting “solely as a nominee for Lender and Lender’s successors and assigns.”

The deed of trust states that “MERS holds only legal title to the interests granted 

by Borrower in this Security Instrument, but, if necessary to comply with law or custom, 

MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to 

exercise any or all of those interests, including, but not limited to, the right to foreclose 

and sell the Property . . . .” The note was pooled and securitized into a loan trust with a 

closing date of September 29, 2006.

The Boyles ceased making payments on the loan in July 2010. In September 2011 

MERS executed an assignment of the deed of trust transferring its interest under the deed 

of trust to Bank of America. ReconTrust, the trustee under the deed of trust, executed a 

notice of default in December 2011. In March 2012 ReconTrust executed a notice of 

trustee’s sale, which had not yet taken place when briefing was completed.

The Boyles’ First Complaint

In April 2012 the Boyles filed a complaint alleging four causes of action against

defendants. In their first cause of action, the Boyles asserted defendants committed fraud 

by causing fraudulent documents to be recorded. The assignment of the deed of trust was 

fraudulent because MERS had no beneficial interest in the property or note. In the 
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alternative, if MERS had any interest, it was extinguished when the note was transferred 

to the loan trust. The notice of default was fraudulent because Bank of America never 

had any interest in the property.

The Boyles’ second cause of action alleged wrongful foreclosure under 

section 2924 and alleged Bank of America could not conduct foreclosure based upon the 

fraudulent assignment and notice of default. Their third cause of action for wrongful 

foreclosure under section 2923.5 stated Bank of America failed to comply with the 

requirements for issuing a notice of default. The Boyles based their final cause of action 

under Business and Professions Code section 17200 et seq. on the wrongful acts of Bank 

of America.

Bank of America and MERS filed a demurrer. As to the fraud cause of action, 

Bank of America and MERS argued the Boyles failed to allege any fraudulent conduct, 

MERS had no authority to begin foreclosure, and the recordings of the foreclosure 

documents were privileged acts that could not support a fraud claim. The cause of action 

under section 2924 failed because the Boyles failed to allege tender. Bank of America 

and MERS challenged the section 2923.5 allegation, arguing it had attached a declaration 

to the notice of default stating it had tried to contact the borrowers with due diligence and 

the Boyles failed to allege any prejudice. The cause of action under Business and

Professions Code section 17200 et seq. failed for lack of a predicate offense and the 

Boyles’ failure to assert any damages.

In June 2012 the Boyles filed a first amended complaint. The amended complaint 

added a new cause of action for conspiracy to commit fraud. Bank of America and 

MERS filed a demurrer to the first amended complaint, arguing the new cause of action 

failed to sufficiently allege a predicate act of fraud.

The trial court’s ruling sustained the demurrer with leave to amend in part and 

overruled it in part. The court found the Boyles did not need to tender the full amount of 

mortgage indebtedness to bring an action under section 2923.5 and that this cause of 
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action was adequately pleaded. The court sustained Bank of America and MERS’s 

demurrer as to the fraud cause of action with leave to amend, finding it inadequately 

pleaded. The court also sustained the demurrer to the second cause of action for 

conspiracy with leave to amend. Because the fraud cause of action was inadequately 

pleaded, the conspiracy cause of action also failed. The third cause of action for 

wrongful foreclosure under section 2924 was also sustained with leave to amend. The 

demurrer to the fourth cause of action for wrongful foreclosure under section 2923.5 was 

overruled, and the cause of action for violation of the unfair competition law (UCL; 

Bus. & Prof. Code, § 17200 et seq.) was also overruled.

The Boyles’ Second Amended Complaint

In their second amended complaint, the Boyles expanded their fraud allegations 

and added allegations to their third cause of action for wrongful foreclosure under 

section 2924 and their UCL claim. Bank of America and MERS demurred to the second 

amended complaint.

The trial court sustained the demurrer without leave to amend except for the cause 

of action for wrongful foreclosure under section 2923.5. The court found the first cause 

of action for fraud was not pleaded with the requisite specificity, the recording of the 

foreclosure was proper, MERS had the authority to foreclose, and securitization does not 

affect the right to foreclose. As for the second cause of action for conspiracy, the court 

found no predicate tort. The third cause of action, under section 2924, failed because 

MERS possessed the authority to foreclose, there was no requirement that the original 

promissory note be produced, and the Boyles failed to allege damages resulting from the 

wrongful foreclosure. The Boyles’ fifth cause of action for violation of the UCL was 

defective and the demurrer was properly sustained on the grounds they failed to allege 

damages.

Subsequently, the Boyles filed a request for dismissal of the surviving fourth cause 

of action under section 2923.5. After the claim was dismissed, the trial court issued a 
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judgment in favor of Bank of America and MERS. The Boyles filed a timely notice of 

appeal.

DISCUSSION

STANDARD OF REVIEW

The function of a demurrer is to test the sufficiency of the complaint by raising 

questions of law. We give the complaint a reasonable interpretation and read it as a 

whole with its parts considered in their context. A general demurrer admits the truth of 

all material factual allegations. We are not concerned with the plaintiff’s ability to prove 

the allegations or with any possible difficulties in making such proof. We are not bound 

by the construction placed by the trial court on the pleadings; instead, we make our own 

independent judgment. (Herman v. Los Angeles County Metropolitan Transportation 

Authority (1999) 71 Cal.App.4th 819, 824.)

Where the trial court sustains the demurrer without leave to amend, we must 

decide whether there is a reasonable possibility the plaintiff can cure the defect with an 

amendment. If we find that an amendment could cure the defect, we must find the court 

abused its discretion and reverse. If not, the court has not abused its discretion. The 

plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. 

Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153 (Gomes).)

FRAUD

The elements of fraud are a false representation of a material fact, knowledge of 

the falsity, intent to induce another to rely on the representation, reliance, and resulting 

damage. Each element of fraud must be alleged factually and specifically. (West v. 

JPMorgan Chase Bank, N.A (2013) 214 Cal.App.4th 780, 792; Tarmann v. State Farm 

Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) To assert a cause of action for fraud 

against a corporation, a plaintiff must allege the name of the person who allegedly made 

the fraudulent representation, his or her authority to speak, to whom he or she spoke, 
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what was said and when it was said. (Tarmann, at p. 157.) General or conclusory 

allegations will not suffice to plead a cause of action for fraud. (West, at p. 793.)

In their fraud cause of action, the Boyles contend Bank of America and MERS 

recorded a fraudulent deed of trust. The trial court determined no fraudulent activity 

occurred, since MERS, as beneficiary under the deed of trust, recorded an assignment of 

the deed of trust to Bank of America. ReconTrust, as trustee under the deed of trust, 

recorded a notice of default and a notice of trustee’s sale. As the court noted: 

“. . . MERS has the authority to foreclose. MERS’ authority to make a valid assignment 

of the note on behalf of the original lender has been determined valid by appellate courts. 

[Citation.] Courts have rejected similar challenges to MERS’s authority to foreclose. 

[Citations.]”

Courts have indeed repeatedly rejected challenges to the foreclosure process of the 

type asserted by the Boyles, holding that the homeowners did not have standing to 

challenge a vast array of irregularities in the transfer of rights and obligations under 

assignments and substitutions. (Siliga v. Mortgage Electronic Registration Systems, Inc. 

(2013) 219 Cal.App.4th 75, 82; Jenkins v. JPMorgan Chase Bank, N.A. (2013) 

216 Cal.App.4th 497, 511 (Jenkins).) “California’s nonjudicial foreclosure scheme does 

not ‘provide for a judicial action to determine whether the person initiating the 

foreclosure process is indeed authorized.’ Gomes[, supra,] 192 Cal.App.4th [at p.] 1155, 

121 Cal. Rptr. 3d 819 (2011)[.]” (Diunugala v. JP Morgan Chase Bank, N.A. (S.D.Cal. 

Oct. 3, 2013, No. 12cv2106-WQH-NLS) 2013 U.S.Dist. Lexis 144326 at p. *20.) In

Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, the 

homeowners alleged a defect in the assignment of the deed of trust. The homeowners did 

not claim the lender committed misconduct in foreclosing on the property and admitted 

they were in default. The appellate court rejected the challenge, reasoning: “Because a 

promissory note is a negotiable instrument, a borrower must anticipate it can and might 
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be transferred to another creditor. As to plaintiff, an assignment merely substituted one 

creditor for another, without changing her obligations under the note.” (Id. at p. 1507.)

The court in Jenkins, supra, 216 Cal.App.4th 497 reached a similar result, 

rejecting a homeowner’s challenge to a foreclosure based on an improper transfer of the 

promissory note. The court found the homeowner’s obligation under the note remained 

the same, even if subsequent assignments were invalid. The court reasoned: “California 

courts have refused to delay the nonjudicial foreclosure process by allowing trustordebtors to pursue preemptive judicial actions to challenge the right, power, and authority 

of a foreclosing ‘beneficiary’ or beneficiary’s ‘agent’ to initiate and pursue foreclosure.” 

(Id. at p. 511.) In Gomes, supra, 192 Cal.App.4th at p.1155, the court found 

section 2924, subdivision (a) does not provide for a judicial action to determine whether 

the person initiating the foreclosure process is authorized.

Here, the Boyles acknowledge they had ceased to make their loan payments. They 

do not allege that the assignments they claim are fraudulent interfered with their ability to 

repay the loan. Instead, the Boyles argue that Glaski v. Bank of America (2013) 

218 CalApp.4th 1079 (Glaski) “provides the framework for the facts necessary to allege 

an invalid Assignment of Deed of Trust and the concomitant lack of authority to effect a 

foreclosure.”

In Glaski, the court held that the plaintiff stated a cause of action for wrongful 

foreclosure under the theory that the entity invoking the power of sale was not the holder 

of the deed of trust. The problem was a glitch in the securitization of the loan and a 

violation of New York law. In essence, the plaintiff’s loan was not transferred into the 

securitized trust before it closed and therefore the transfers were ineffective. (Glaski, 

supra, 218 Cal.App.4th at p. 1082.) The court determined: “Transfers that violate the 

terms of the trust instrument are void under New York trust law, and borrowers have 

standing to challenge void assignments of their loans even though they are not a party to, 

or a third party beneficiary of, the assignment agreement.” (Id. at p. 1083.)
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Glaski, however, has not been well received by federal courts. “Every court in 

[the Northern] district that has evaluated Glaski has found it is unpersuasive and not 

binding authority. [Citations.]” (Zapata v. Wells Fargo Bank, N.A. (N.D.Cal. Dec. 10, 

2013, No. C 13-04288 WHA) 2013 U.S.Dist. Lexis 173187 at p. *5.) Federal courts 

continue to reject the reasoning in Glaski. (Haddad v. Bank of America, N.A. (S.D.Cal. 

Jan 8, 2014, No. 12cv3010-WQH-JMA) 2014 U.S.Dist. Lexis 2205; Rivac v. Ndex West 

LLC (N.D.Cal. Dec. 17, 2013, No. C 13-1417 PJH) 2013 U.S.Dist. Lexis 177073; 

Sepehry-Ford v. Dept. Stores Nat. Bank (N.D.Cal. Dec.13, 2013, No. 13-cv-03131-

WHO) 2013 U.S.Dist. Lexis 175320.) We can find no state or federal cases to support 

the Glaski analysis and will follow the federal lead in rejecting this minority holding.

Accordingly, the Boyles’ cause of action for fraud based on the assignment of the 

deed of trust and notice of default is without merit. The court did not err in sustaining the 

demurrer as to the first cause of action for fraud without leave to amend.2

CIVIL CONSPIRACY

The Boyles claim Bank of America and MERS engaged in a civil conspiracy to 

commit fraud against them. The court sustained Bank of America and MERS’s 

demurrer, stating, “A claim for conspiracy, standing alone, is not a cognizable cause of 

action. . . . Because the predicate tort, i.e., fraud, is not adequately pled, this cause of 

action likewise fails.”

 

2

 Prior to oral argument, counsel for the Boyles provided this court with a citation to 

Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736 as additional authority not 

available at the time briefing was completed. At argument, he stated the case was “of 

particular importance.” The court in Kan observed that the Glaski decision applies in 

wrongful foreclosure actions but is of no relevance in a preforeclosure cause of action for 

quiet title. (Kan, at pp. 743-744.) The Boyles thus sought to avoid the argument that 

Glaski had no application to their claim. We agree that Glaski is relevant to the Boyles’ 

wrongful foreclosure claim, but as noted, we reject its holding. Kan provides no 

assistance to the Boyles.
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To establish liability of a defendant for wrongs committed by another as part of a 

conspiracy, a plaintiff must allege the formation and operation of the conspiracy, the 

wrongful act done pursuant to the conspiracy, and resulting damage. (Kidron v. Movie 

Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.) The conspiring defendants must 

also have actual knowledge that a tort is planned and agree to the scheme with knowledge 

of its unlawful purpose. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784-785.)

No cause of action for conspiracy exists unless the plaintiff pleads facts to show 

some wrongful act that would support a cause of action without conspiracy. (Jones v. 

Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541; Applied Equipment Corp. v. 

Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.) Here, as the trial court found, the 

Boyles’ conspiracy claim fails because they cannot establish a cause of action for fraud, 

the underlying tort.

WRONGFUL FORECLOSURE

In their cause of action for wrongful foreclosure, the Boyles cite section 2924 and 

allege the notice of default and assignment of the deed of trust are null and void. In 

essence, the third cause of action for wrongful foreclosure echoes the allegations 

underlying their fraud cause of action. The trial court sustained Bank of America and 

MERS’s demurrer without leave to amend: “As stated above [under the fraud cause of 

action], MERS has authority to foreclose. Additionally, there are no requirements for the 

production of an original promissory note prior to initiation of a non-judicial foreclosure 

sale. [Citation.] Additionally, plaintiffs have failed to allege damages as a result of the 

wrongful foreclosure.”

Sections 2924 through 2924k, which set forth California’s nonjudicial foreclosure 

scheme, “ ‘provide a comprehensive framework for the regulation of a nonjudicial 

foreclosure sale pursuant to a power of sale contained in a deed of trust.’ [Citation.] 

‘These provisions cover every aspect of exercise of the power of sale contained in a deed 

of trust.’ [Citation.] ‘The purposes of this comprehensive scheme are threefold: (1) to 
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provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a 

defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the 

property; and (3) to ensure that a properly conducted sale is final between the parties and 

conclusive as to a bona fide purchaser.’ [Citation.] ‘Because of the exhaustive nature of 

this scheme, California appellate courts have refused to read any additional requirements 

into the non-judicial foreclosure statute.’ ” (Gomes, supra, 192 Cal.App.4th at p. 1154; 

see Lane v. Vitek Real Estate Industries Group (E.D.Cal. 2010) 713 F.Supp.2d 1092, 

1098.)

Addressing defaults, section 2924, subdivision (a)(1) provides that the “trustee, 

mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in 

the office of the recorder of each county wherein the mortgaged or trust property or some 

part or parcel thereof is situated, a notice of default.”

As we have noted, courts have rejected challenges to the propriety of the 

foreclosure process by foreclosed-upon homeowners. Here, the Boyles acknowledge, no 

foreclosure has taken place. The Boyles attempt to recast their cause of action as 

“Cancellation of Issuance of Assignment of Deed of Trust and Notice of Default,” to no 

avail.

As the trial court properly noted, MERS has the authority to foreclose. The 

Boyles do not dispute they have ceased to make their loan payments. They do not allege 

that the assignments they complain of interfered with their ability to repay the loan. 

Although the Boyles set forth alleged damages, they fail to connect those damages to the 

alleged irregularities in the processing of the loan. Their wrongful foreclosure cause of 

action based on alleged defects in the transfer of the underlying loan lacks merit and the 

demurrer to the wrongful foreclosure cause of action was properly sustained without 

leave to amend.
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VIOLATION OF BUSINESS AND PROFESSIONS CODE

SECTION 17200 ET SEQ.

The Boyles contend they have adequately presented a cause of action for violation 

of Business and Professions Code section 17200 et seq. The trial court sustained the 

demurrer to this cause of action based on the Boyles’ failure to allege the requisite 

damages.

To allege a claim of unlawful business practices under Business and Professions 

Code section 17200 et seq., a plaintiff must allege facts that show the practice violated a 

specific underlying law. (Cel-Tech Communications, Inc. v. Los Angeles Cellular 

Telephone Co. (1999) 20 Cal.4th 163, 180.) In addition, the plaintiff must also allege a 

financial or property loss as a result of the defendant’s unlawful acts. (Jenkins, supra,

216 Cal.App.4th at pp. 521-522.)

In support of their claim, the Boyles incorporated the allegations set forth 

elsewhere in their second amended complaint. However, we have found none of the 

causes of action cited sufficient to survive demurrer. Where a Business and Professions 

Code section 17200 claim is based on facts supporting other causes of action that have 

been found wanting, it is appropriate to also dismiss the underlying section 17200 claim. 

(Keen v. American Home Mortgage Servicing, Inc. (E.D.Cal. 2009) 664 F.Supp.2d 1086, 

1102.) Accordingly, the trial court properly sustained the demurrer as to the cause of 

action for violation of section 17200 et seq. without leave to amend.

DISPOSITION

The judgment is affirmed.

 RAYE , P. J.

We concur:

 ROBIE , J.

 DUARTE , J.