Filed 6/19/14 Vissuet v. Bank of America 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FRIDA VISSUET, 

 Plaintiff and Appellant, 

 v. 

BANK OF AMERICA, N.A. 

 Defendant and Respondent. 

 D063524 

 (Super. Ct. No. 37-2011-00096197- 

 CU-OR-CTL) 

 APPEAL from a judgment of the Superior Court of San Diego, William S. Dato, 

Judge. Affirmed. 

 Arizmendi Law Firm and Ruben F. Arizmendi for Plaintiff and Appellant. 

 Bryan Cave and Stuart Winston Price, Brendon K. Barton for Defendant and 

Respondent. 

 Plaintiff and Appellant Frida Vissuet appeals from a judgment on the pleadings in 

favor of defendant and respondent Bank of America, N.A. (Bank) on Vissuet's first 
2 

amended complaint asserting causes of action arising from her attempts to modify her 

real estate loan and the ensuing foreclosure of her home. Vissuet contends the trial court 

was biased and erred by granting judgment on the pleadings in Bank's favor and by 

denying her request for leave to file a second amended complaint. Vissuet asks us to 

review her second amended complaint de novo, presumably to assess whether she states 

viable causes of action. Because Vissuet has not met her appellate burden to overcome 

the presumption of correctness or demonstrate reversible error, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND1

 In August 2011, Vissuet filed a complaint against Bank setting forth causes of 

action for "damages for intentional misrepresentation of fact," fraud and deceit, negligent 

misrepresentation, breach of the covenant of good faith and fair dealing, violation of 

Civil Code section 1572, and declaratory relief. In part, Vissuet alleged that in August 

2007 she had obtained a loan with Countrywide Home Loans, Inc. in the amount of 

$540,000 for property located on Corral Canyon Road in Bonita, California, which loan 

was eventually assigned to BAC Home Loans Servicing, L.P. She alleged that in 

 

1 On review of an order granting judgment on the pleadings, the appellate court 

usually treats as true the material facts alleged in the operative complaint and facts that 

may be implied or inferred from those expressly alleged. (Haight, Brown & Bonesteel v. 

Superior Court (1991) 234 Cal.App.3d 963, 968.) But Vissuet does not in her factual 

statement summarize the material allegations of her operative pleading. Rather, she sets 

out allegations that, according to her, are "identical to those brought by the Nevada 

Attorney General against Bank of America, BAC Home Loans Servicing, and Recontrust, 

in which Attorney General Catherine Cortez Masto alleges that these entities engaged in 

unlawful and deceptive practices by misrepresenting to homeowners that they had 

authority to foreclose despite the fact that there were fatal deficiencies in transfers to the 

securitization Trusts." She asserts that the "essence of the foregoing was alleged in 

various stages of the complaint in the Superior Court below." 
3 

February 2010, a notice of default was filed with a past due amount of over $42,000. 

Vissuet alleged that in October 2009, she retained an attorney to pursue a loan 

modification. In her complaint, Vissuet set out numerous conversations she had with 

Bank personnel between February 2010 and August 2011 regarding her eligibility for 

loan modification and postponement of the trustee's sale. At about the same time she 

filed her original complaint, Vissuet applied ex parte for a temporary restraining order 

enjoining Bank from conducting a trustee's sale. 

 In September 2011, Vissuet filed a first amended complaint including the same 

causes of action and adding causes of action for quiet title, negligent infliction of 

emotional distress, promissory estoppel and conspiracy. Vissuet alleged that Bank 

proceeded with the trustee's sale of her property on August 12, 2011, without notifying 

her of certain alternatives to foreclosure. She further alleged Bank sold the property 

below fair market value in order to "complicate" her lawsuit. 

 On September 30, 2011, Vissuet's counsel sought ex parte to consolidate Vissuet's 

action with an unlawful detainer action filed on August 18, 2011, by the purchaser of the 

property, Property Sales II, LLC. Bank answered the complaint in October 2011. 

 In November 2011, Vissuet applied ex parte to file an amended complaint. She 

asked for leave to add Property Sales II, LLC, and its principal, Joe Lyden, who 

assertedly purchased the property at the foreclosure sale and initiated the unlawful 

detainer proceeding. Vissuet also sought leave to add causes of action to set aside the 

trustee sale, cancel the trust deed, and enjoin the unlawful detainer action. The trial court 

ordered Vissuet to file a noticed motion regarding that proposed amendment. 
4 

 Vissuet again moved to consolidate her action against Bank with the unlawful 

detainer action. She unsuccessfully attempted to shorten time on consolidation motions 

again in January and March 2012 and eventually filed her motion in April 2012. 

 Bank moved for judgment on the pleadings. In part, it argued Vissuet lacked 

standing because she had not tendered the amount of the secured debt; Vissuet did not 

meet the heightened pleading standard to allege fraud and her complaint on that point set 

forth only argumentative or conclusory allegations; Vissuet's claim of promissory 

estoppel was barred by the statute of frauds; Vissuet did not tie her allegations as to 

breach of the covenant of good faith and fair dealing to an express term of her promissory 

note; quiet title was not available because Vissuet's first amended complaint was 

unverified and she had not tendered payment of her debt; and Vissuet could not maintain 

a cause of action for negligent infliction of emotional distress because Bank did not owe 

Vissuet a duty of care, its actions in pursuing its rights under the trust deed were not 

extreme or outrageous, and Vissuet did not suffer extreme emotional distress. Bank 

submitted and sought judicial notice of an August 7, 2007 deed of trust; the February 5, 

2010 notice of default; an assignment of the trust deed recorded on March 3, 2010; 

notices of trustee's sale recorded on May 12, 2010, and May 18, 2011; a trustee's deed 

upon sale recorded on August 26, 2011; a docket of Vissuet's Chapter 13 bankruptcy; and 

a summary of schedules filed with the bankruptcy court. 

 Vissuet purported to oppose the motion not by addressing Bank's arguments on the 

merits, but by lodging a proposed second amended complaint, the contents of which she 

claimed "satisfied" all of Bank's points. The second amended complaint purported to 
5 

allege ten additional causes of action (causes of action 11 through 20) for "setting aside 

trustee sale," cancellation of the trust deed, negligence, quasi-contract, violation of 

section 2605 of title 12 of the United States Code, violation of section 1692 et seq. of title 

15 of the United States Code, violation of the Unfair Competition Law (UCL; Bus. & 

Prof. Code, § 17200 et seq.), accounting, and "extortion" in violation of section 

1951(b)(2) of title 18 of the United States Code. 

 In reply, Bank argued Vissuet's failure to oppose its motion was a concession that 

the claims of the first amended complaint lacked merit. It asked the court to grant its 

motion without giving Vissuet leave to file the second amended complaint, arguing the 

pleading did not cure the deficiencies raised by Bank's motion. Bank argued Vissuet's 

proposed amendments did not add any new facts so as to cure the first ten causes of 

action, and they did not change the legal effect of the causes of action raised in the first 

amended complaint. It further argued Vissuet's proposed second amended complaint was 

procedurally defective because she had not obtained the court's permission to file it. 

Bank finally argued Vissuet's proposed amendments were futile, her request for leave to 

amend was dilatory, and it would suffer prejudice if the court granted the request. 

 Judicially noticing all of Bank's exhibits, the court granted judgment on the 

pleadings in Bank's favor, ruling Vissuet's failure to oppose the motion constituted a 

concession of the first amended complaint's defects. It continued the hearing on the 
6 

matter, however, to determine whether Vissuet should be granted leave to amend, and 

ordered her to file briefing on that question.2

 About a month later, the court allowed Vissuet to substitute her proposed second 

amended complaint with a new second amended complaint. The verified substituted 

second amended complaint named both Bank and Property Sales II, LLC, as well as all 

persons claiming any legal or equitable right in the property, and set out causes of action 

for fraud-concealment (first cause of action), breach of the covenant of good faith and 

fair dealing (second cause of action), violation of the UCL (third and fourth causes of 

action), quiet title (fifth cause of action), and wrongful foreclosure (sixth cause of action). 

Vissuet submitted briefing as to why the complaint was sufficient to state those causes of 

action. Bank filed papers in reply. 

 The trial court denied Vissuet leave to amend her first amended complaint and 

granted judgment on the pleadings without leave to amend. The court thereafter entered 

 

2 The court's ruling states: "Concerning plaintiff's apparent request for leave to 

amend, she has offered no argument as to how the proposed amendments cure the 

deficiencies of the [first amended complaint]. So that the Court can meaningfully assess 

whether leave to amend should be granted, the hearing is continued to allow plaintiff to 

file an opposition that specifically addresses defendant's arguments and explains why the 

amended causes of action state viable claims. Since plaintiff has not moved to amend her 

claim under Code of Civil Procedure section 473, however, she may not add new causes 

of action." Though the court had stated Vissuet was not permitted to add new causes of 

action, it later explained that its ruling was unclear or inartful and suggested it would be 

more beneficial for Bank to assess the issues in the trial court as opposed for the first time 

on appeal. 
7 

a judgment of dismissal with prejudice in Bank's favor. Vissuet filed this appeal.3 

DISCUSSION 

I. Principles of Appellate Review

 Vissuet's appellate briefing compels us to begin by reviewing settled principles of 

appellate review. On appeal, a judgment or an order is presumed to be correct, and 

Vissuet as the party challenging the judgment or the order must affirmatively show error. 

(E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; In re Marriage of 

Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 

564.) To meet this burden, Vissuet must provide cogent legal argument in support of her 

claims of error with citation to legal authority, as well as supporting references to the 

record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Sims v. Department of Corrections 

& Rehabilitation (2013) 216 Cal.App.4th 1059, 1081; In re Marriage of Falcone & Fyke 

(2008) 164 Cal.App.4th 814, 830; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 

1003 & fn. 2; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) If she does not do 

so, we may treat her point as waived or abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 

994; People v. Stanley (1995) 10 Cal.4th 764, 793; Sims, at p. 1081; Marriage of 

 

3 Vissuet's opening brief states she appeals from a judgment entered on January 14, 

2013. Her notice of appeal states she appeals from a judgment entered after an order 

granting a summary judgment motion. However, Vissuet identified the judgment 

appealed from as being filed on December 26, 2012, which is the date the trial court 

entered its judgment of dismissal with prejudice. Because it is reasonably clear what 

order Vissuet is appealing, and Bank has not raised any prejudice, we deem her notice of 

appeal as being from the December 26, 2012 judgment on the pleadings. (See Cal. Rules 

of Court, rule 8.100(a)(2); Walker v. Los Angeles County Metropolitan Transit Authority 

(2005) 35 Cal.4th 15, 20.) 
8 

Falcone, at p. 830; Berger, at pp. 1119-1120; Pringle, at p. 1003.) "An appellate court is 

not required to consider alleged errors where the appellant merely complains of them 

without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 

866, 873.) "One cannot simply say the court erred, and leave it up to the appellate court 

to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) 

 Furthermore, " '[i]t is fundamental that a reviewing court will ordinarily not 

consider claims made for the first time on appeal which could have been but were not 

presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not 

presented and litigated in the trial court. Generally, issues raised for the first time on 

appeal which were not litigated in the trial court are waived.' " (Newton v. Clemons

(2003) 110 Cal.App.4th 1, 11, fns. omitted; see also Brokopp v. Ford Motor Co. (1977) 

71 Cal.App.3d 841, 862 [an appellate court will not consider matters outside the record 

on appeal].) "Appellate courts are loath to reverse a judgment on grounds that the 

opposing party did not have an opportunity to argue and the trial court did not have an 

opportunity to consider. [Citation.] In our adversarial system, each party has the 

obligation to raise any issue or infirmity that might subject the ensuing judgment to 

attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable 

expense, but also wreaks havoc on a judicial system too burdened to retry cases on 

theories that could have been raised earlier." (JRS Products, Inc. v. Matsushita Electric 

Corp. of America (2004) 115 Cal.App.4th 168, 178.) 
9 

II. Vissuet's Claims of Bias by the Trial Court

 Vissuet begins the argument section of her opening brief by listing claimed 

instances of the trial court's bias in Bank's favor. Raising these bias arguments for the 

first time on appeal, she argues the court demonstrated bias and abused its discretion 

when it denied her motion for a temporary restraining order to stop the foreclosure of the 

property, and that she established good cause for that relief by her verified complaint, 

which showed Bank's "dual tracking" in violation of the California Homeowner Bill of 

Rights.4 She maintains the court was biased when it denied her motion to consolidate the 

unlawful detainer action with the present action against Bank. Vissuet further contends 

the court exhibited bias by failing to allow her to file an amended complaint. Finally, 

Vissuet argues the court exhibited bias and erred by granting Bank's motion for judgment 

on the pleadings on her first amended complaint. 

 These contentions fail for several reasons. A question of trial court bias must be 

determined from matters appearing in the reporter's transcript, as statements of counsel in 

briefs are not part of the record on appeal. (Gantner v. Gantner (1952) 39 Cal.2d 272, 

278.) None of Vissuet's arguments are supported by any citation to the reporter's 

transcript, or the record at all, for that matter. For this reason, she has forfeited the 

contentions of bias. 

 

4 See Lueras v. BAC Home Loans Servicing L.P. (2013) 221 Cal.App.4th 49, 86, fn. 

14 [setting out background of the California Homeowner Bill of Rights]. Dual tracking 

refers to a tactic by which a bank continues to pursue foreclosure at the same time the 

borrower in default seeks a loan modification. (Ibid.; Jolley v. Chase Home Finance, 

LLC (2013) 213 Cal.App.4th 872, 904.) Vissuet does not say where in her various 

pleadings she alleged Bank engaged in such a practice. 
10 

 Additionally, Vissuet's arguments do not present facts establishing that bias arose 

from some source collateral to the proceeding. Instead, the arguments demonstrate that 

Vissuet is seeking indirectly to challenge the legal and evidentiary rulings of the court by 

characterizing her contentions as bias. A trial court's rulings against a litigant, even if 

continuously erroneous, do not establish bias or prejudice. (Dietrich v. Litton Industries, 

Inc. (1970) 12 Cal.App.3d 704, 719; accord, People v. Fuiava (2012) 53 Cal.4th 672, 

732.) 

 Vissuet's challenges to the merits of the trial court's rulings are unavailing in any 

event, as we shall explain. With regard to the court's denial of Vissuet's request for a 

temporary restraining order, Vissuet cannot raise error in connection with that ruling. 

Such an order is separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(6) [order 

granting or refusing to grant an injunction is directly appealable]; Ragland v. U.S. Bank 

Nat. Assn. (2012) 209 Cal.App.4th 182, 208.) Because Vissuet did not file a notice of 

appeal from the court's order denying her request for a temporary restraining order, she 

cannot challenge the merits of that order. 

 As for Vissuet's requests to consolidate the actions, such orders are reviewable 

from the final judgment and are not required to be expressly identified in her notice of 

appeal, contrary to Bank's assertion. (State Farm Mut. Auto Ins. Co. v. Superior Court 

(1956) 47 Cal.2d 428, 432.) We review the court's denial of consolidation for abuse of 

discretion; the decision will not be disturbed on appeal absent a clear showing of such 

abuse. (See Code Civ. Proc., § 1048; Todd-Stenberg v. Dalkon Shield Claimants Trust 

(1996) 48 Cal.App.4th 976, 978-979.) Vissuet has not made this showing. Her sole 
11 

argument is that the trial court had "ample authority" to consolidate the actions under 

Asuncion v. Superior Court (1980) 108 Cal.App.3d 141. She does not discuss Asuncion, 

provide any background concerning her consolidation requests, explain how the matters 

involved significant common questions of law or fact, discuss whether the risks of jury 

confusion or prejudice outweigh the reduction in time and expense resulting from 

consolidation, or set forth the trial court's reasoning for its orders, all of which are 

necessary for us to assess whether the court's rulings were within its discretion. This 

court will not search the record for error, or make Vissuet's arguments for her. (See Inyo 

Citizens for Better Planning v. Board of Supervisors (2009) 180 Cal.App.4th 1, 14.) 

 For the same reason, we reject Vissuet's claim that the trial court was biased in 

Bank's favor because it did not allow Vissuet to amend her complaint. She argues that 

amendments are liberally granted, but the court refused to allow it instead "requir[ing 

her] to jump through hoops to ultimately accomplish such an amendment." Though we 

agree with the general proposition that amendments to complaints should be liberally 

granted (Vissuet inexplicably cites New Jersey authority—Nottee v. Merchants Mut. Ins. 

Co. (2006) 185 N.J. 490, 500-501—for it), Vissuet's assertions otherwise are without any 

pertinent legal argument or analysis. Even if we infer from her statement she was 

required "to jump through hoops" that the court required her to follow some unnecessary 

procedure, her assertion is unsupported by any citation to the record from which we may 

assess whether or not the court committed a clear abuse of its discretion. We will not 

search the record for error on this point. 
12 

 Vissuet's challenge to the court's grant of judgment on the pleadings likewise fails. 

She maintains the court was "incorrect and presumptive" when it ruled Vissuet had 

conceded the deficiencies in her first amended complaint by not opposing Bank's motion 

for judgment on the pleadings, and instead filing an amended pleading. She argues her 

intention in filing the second amended complaint was to correct aspects of the preceding 

pleading to enlighten the court on the issues. Vissuet argues that rather than analyzing 

the first amended complaint, the court "summarily discarded" it, and immediately ruled in 

Bank's favor, showing it was "predisposed" to grant judgment on the pleadings 

"regardless of what complaint was before it." For the latter proposition, she cites 

(without a pinpoint page reference) Khan v. Holder (9th Cir. 2009) 584 F.3d 773, a case 

not about a judgment on the pleadings in a California state court, but involving the Ninth 

Circuit's review of an immigration judge's denial of an application for asylum and its 

interpretation of the Immigration and Nationality Act. (Id. at pp. 775, 777-778, 781.) In 

another section of her brief, Vissuet contends the court erred by denying her request for 

leave to file a proposed amended complaint "in such a manner wherein it would not be 

summarily dismissed"; in part she maintains the court "d[id] not care" for her argument 

concerning improper securitization and "prefer[red] to ignore it." 

 Vissuet's assertions of bias and error are without any reasoned legal argument or 

citation to the record, and for that reason alone, we may deem them forfeited. But in fact, 

the record contradicts her arguments. The trial court did not improvidently grant 

judgment on the pleadings when Vissuet elected not to oppose the motion on the merits, 

rather, it permitted Vissuet to substitute her second amended complaint and ordered her 
13 

to explain in writing how that pleading cured the deficiencies raised by Bank's motion. 

That order was consistent with settled procedures on such a motion. Faced with Bank's 

motion for judgment on the pleadings, if Vissuet sought to simply file an amended 

complaint, it was her burden to demonstrate that there was a reasonable possibility she 

could cure the defects raised in Bank's motion with the amendment. (Schifando v. City of 

Los Angeles (2003) 31 Cal.4th 1074, 1081 [applying demurrer standards]; Rice v. Center 

Point, Inc. (2007) 154 Cal.App.4th 949, 959; Foundation for Taxpayer and Consumer 

Rights v. Nextel (2006) 143 Cal.App.4th 131, 135.) The trial court's use of this procedure 

does not show bias; to the contrary it reflects the court's efforts to give Vissuet every 

reasonable opportunity to justify her amended pleading. 

III. Vissuet Has Not Shown the Trial Court Abused its Discretion by Denying Leave to 

Amend and Granting Judgment on the Pleadings

 Asking us to review her second amended complaint de novo, Vissuet argues the 

trustee's sale was "improper, wrongful, illegal, invalid, and in violation of [her] legal 

rights" and the trust deed recorded in violation of the terms and conditions of the 

promissory note and deed of trust. She argues Bank engaged in invalid and fraudulent 

presale procedures, including by: (1) violating Civil Code section 2923.4; (2) dual 

tracking; (3) "lulling" her in some unspecified manner; and (4) failing to inform Property 

Sales II, LLC of pending litigation concerning title to the property before the trustee's 

sale. She asserts Property Sales II, LLC was not a bona fide purchaser. 

 " 'A motion for judgment on the pleadings . . . challenges the sufficiency of the 

plaintiff's cause of action and raises the legal issue . . . of whether the complaint states a 
14 

cause of action.' " (Arce v. County of Los Angeles (2012) 211 Cal.App.4th 1455, 1483, 

fn. 16.) We apply the same review standard as for a general demurrer. (Reddell v. 

California Coastal Com'n (2009) 180 Cal.App.4th 956, 971.) Normally, we review de 

novo the grant of a motion for judgment on the pleadings to determine whether a cause of 

action has been stated, treating as true all properly pleaded material facts and matters 

judicially noticeable (ibid.; Soco West, Inc. v. California Environmental Protection 

Agency (2013) 213 Cal.App.4th 1511, 1514), but not speculative allegations (see Rotolo 

v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 318) or 

"contentions, deductions or conclusions of law." (Aubry v. Tri-City Hospital Dist. (1992) 

2 Cal.4th 962, 967.) 

 We need not set forth Vissuet's allegations here. In her appellate briefs, Vissuet 

does not cite to the allegations of her substituted second amended complaint (or any of 

the other iterations of her pleadings) supporting her contentions. She does not attempt to 

explain how the allegations of her second amended complaint are sufficient to state 

viable causes of action against Bank for nondisclosure fraud, breach of the covenant of 

good faith and fair dealing, violation of the UCL, quiet title, or wrongful foreclosure. 

She does not touch on any of the elements of these causes of action. Absent such 

arguments, she has forfeited the challenge. (In re Sade C., supra, 13 Cal.4th at p. 994; 

People v. Stanley, supra, 10 Cal.4th at p. 793.) To justify an amendment on appeal, 

Vissuet "must clearly and specifically state 'the legal basis for amendment, i.e., the 

elements of the cause of action,' as well as the 'factual allegations that sufficiently state 

all required elements of that cause of action.' " (Maxton v. Western States Metals (2012) 
15 

203 Cal.App.4th 81, 95.) Though appellate review is de novo following the grant of a 

judgment on the pleadings, that does not mean our role is to review the adequacy of the 

second amended complaint's allegations and make Vissuet's arguments for her. 

 Bank asserts Vissuet's claims fail in any event. It points out that none of the 

theories Vissuet raises on appeal were argued in the trial court. More specifically it 

argues that to the extent Vissuet seeks to allege Bank violated the Homeowner Bill of 

Rights, that law is not retroactive. Bank argues Vissuet does not allege any modification 

or loan foreclosure activity occurring after the date of its enactment: January 1, 2013. 

 The documents attached to Bank's motion, and of which the court below took 

judicial notice, show the foreclosure was initiated before January 1, 2013. Under these 

circumstances, we agree that though Vissuet claims Bank engaged in dual tracking, she 

cannot state a cause of action asserting violation of any of the provisions of the 

Homeowner Bill of Rights. (Rockridge Trust v. Wells Fargo, N.A. (N.D.Cal. 2013) ___ 

F.Supp. 2d ___ [2013 WL 5428722, *28], citing Sabherwal v. Bank of New York Mellon 

(S.D.Cal. 2013) 2013 WL 4833940, *10; Landmark Screens, LLC v. Morgan Lewis 

Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6 [unpublished federal cases may 

properly be cited as persuasive, although not binding, authority].) A statute operates 

prospectively unless the Legislature expressly declares it is to be applied retroactively. 

(Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840.) There is no 

express declaration of retroactivity in the Homeowner Bill of Rights, which, as Bank 

correctly points out, became effective January 1, 2013. (Rockridge Trust, at *28; Lueras 

v. BAC Home Loans Servicing L.P., supra, 221 Cal.App.4th at p. 86, fn. 14) 
16 

 Bank further argues Vissuet lacks standing to assert a wrongful foreclosure claim 

based on an alleged violation of a pooling and servicing agreement (PSA), another theory 

raised by Vissuet for the first time on appeal. Vissuet's substituted second amended 

complaint's cause of action for wrongful foreclosure alleges that Bank violated Civil 

Code section 2934a and breached provisions of the trust deed "by the fact that Bank of 

New York was the Trustee of the Trust than [sic] contained the Note and Deed of Trust 

and that Bank of New York was the only entity with authority to enforce the Note and 

Deed of Trust." She alleges Bank "received revenue in excess of $540,000 due to the 

derivative and securitization processes employed with Plaintiff's Note and Deed of Trust" 

and those actions caused her general damages and warranted punitive damages. In her 

opening brief, Vissuet ignores these allegations and asserts anew (again, without 

supporting record citations) that "[t]he parties involved in the alleged securitization and 

transfer of Appellant's Note and Mortgage failed to adhere to the PSA, which requires 

that Appellant's Note and Mortgage be properly endorsed, transferred, accepted, and 

deposited with the Securitization Trust (or its custodian) on or before the 'closing date' 

indicated on the Prospectus." Vissuet asserts the closing date was August 13, 2007, and 

that these failures "result[ ] in the Note and Mortgage note not being part of the . . . 

[trust], such that it is not a loan that either [Bank of New York] or Bank of America, N.A. 

can attempt to collect on." (Some capitalization omitted.) Vissuet vaguely asserts the 

lack of a recorded assignment before the closing date of the trust "raises numerous red 

flags" and "demonstrates fatal securitization defects." 
17 

 In Arabia v. BAC Home Loans Serv., L.P. (2012) 208 Cal.App.4th 462, we 

addressed on review of a summary judgment a beneficiary's claim that BAC Home Loans 

Servicing, L.P. (BAC) could not judicially foreclose because it was not in compliance 

with a PSA. We said: "[Plaintiff] fails to explain why BAC's breach of the PSA matters 

in the instant action. [He] obtained a mortgage loan secured by a deed of trust recorded 

against the property. If [he] failed to make his payments, he faced the possibility of 

foreclosure. This is what happened here. There is no dispute that [plaintiff] has failed to 

make his payments on the First Loan and is subject to foreclosure. Whether BAC has 

breached an agreement with [Bank of New York] does not alter these undisputed facts or 

the consequence arising out of [plaintiff's] failure to repay the First Loan. [¶] Moreover, 

if BAC had breached the PSA, then perhaps [Bank of New York] would have a claim 

against BAC. But it is an unsupported leap of logic that would allow [plaintiff] to use 

these breaches to challenge BAC's right to initiate a judicial foreclosure . . . ." (Id. at p. 

473; accord, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-

515 [borrower, who is an unrelated third party to the alleged securitization, lacks standing 

to challenge improper transfer of a promissory note during the securitization process and 

other subsequent transfers of the beneficial interest under the promissory note].) 

 We do not need to decide whether these cases or the other authorities Bank cites 

preclude Vissuet's claim of wrongful foreclosure on the theory asserted in her opening 

brief. Vissuet has not tied her assertions to any allegation in her operative pleading or set 

out the elements of a wrongful foreclosure action. She has not demonstrated in any 

meaningful way that she can state a viable cause of action, and we have no reason to 
18 

conclude she has overcome the presumption of correctness of the trial court's decision to 

deny leave to amend and grant judgment on the pleadings. 

DISPOSITION 

 The judgment is affirmed. 

O'ROURKE, J. 

WE CONCUR: 

McINTYRE, Acting P. J. 

AARON, J.