Filed 6/19/14 Vissuet v. Bank of America CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superi or Court of San Dieg o, William S. Dato, Judge. Affirmed.

Arizmendi Law Firm and Ruben F. Ar izmendi for Plaintiff and Appellant. Bryan Cave and Stuart Wi nston Price, Brendon K. Barton for Defendant and Respondent.

Plaintiff and Appellant Frida Vissuet a ppeals from a judgment on the pleadings in favor of defendant an d respondent Bank of America, N.A. (Bank) on Vissuet's first2 amended complaint asserting causes of actio n 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 sec ond 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 ha s not met her appellate burden to overcome the presumption of correctness or demonstrate reversible error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND 1 In August 2011, Vissuet filed a complaint against Ba nk setting forth causes of action for "damages for intentional misreprese ntation of fact," fraud and deceit, negligent misrepresentation, breach of th e covenant of good faith and fair dealing, violation of Civil Code section 1572, and declaratory relief. In part, Vissuet alle ged 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 Ro ad in Bonita, California, which loan was eventually assigned to BA C Home Loans Servicing, L. P. She alleged that in

1 On review of an order granting judgmen t on the pleadings, the appellate court usually treats as true the mate rial facts alleged in the oper ative 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 "i dentical to those br ought by the Nevada Attorney General against Bank of America, BAC Home Loans Servicing, and Recontrust, in which Attorney General Ca therine Cortez Masto alleges that these entities engaged in unlawful and deceptive practices by misrepre senting to homeowners that they had authority to foreclose despite th e fact that there were fatal de ficiencies 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 Febr uary 2010 and August 2011 regarding her eligibility for loan modification and postponement of the trus tee's sale. At about the same time she filed her original complaint, Vissuet applie d ex parte for a temporary restraining order enjoining Bank from conducting a trustee's sale. In September 2011, Vissuet filed a firs t amended complaint including the same causes of action and adding ca uses of action for quiet title, negligent infliction of emotional distress, promissory estoppel an d conspiracy. Vissuet alleged that Bank proceeded with th e trustee's sale of her property on August 12, 2011, without notifying her of certain alternatives to foreclosure. She further alleged Ba nk sold the property below fair market value in order to "complicate" her lawsuit. On September 30, 2011, Vissu et's counsel sought ex part e 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 answ ered the complaint in October 2011. In November 2011, Vissuet applied ex pa rte to file an amended complaint. She asked for leave to add Property Sales II, LLC, and its principa l, Joe Lyden, who assertedly purchased the property at the fo reclosure sale and initiated the unlawful detainer proceeding. Vissuet also sought le ave to add causes of action to set aside the trustee sale, cancel the trust deed, and enjoin th e unlawful detainer action. The trial court ordered Vissuet to file a noticed motion regarding that proposed amendment.4 Vissuet again moved to consolidate he r action against Bank with the unlawful detainer action. She unsuccessfully attemp ted to shorten time on consolidation motions again in January and March 2012 and eventu ally 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 am ount of the secured debt; Vissuet did not meet the heightened pleading standard to a llege fraud and her complaint on that point set forth only argumentative or conclusory a llegations; 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 am ended 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 b ecause Bank did not owe Vissuet a duty of care, its actions in purs uing its rights under the trust deed were not extreme or outrageous, and Vissuet did no t suffer extreme emotional distress. Bank submitted and sought judicial notice of an Augus t 7, 2007 deed of trust; the February 5, 2010 notice of default; an assignment of th e trust deed recorded on March 3, 2010; notices of trustee's sale r ecorded on May 12, 2010, and Ma y 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 w ith the bankruptcy court. Vissuet purported to oppose the motion not by addressing Bank's arguments on the merits, but by lodging a propos ed second amended complaint, the contents of which she claimed "satisfied" all of Bank's points. The second amended complaint purported to5 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 C ode, violation of secti on 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, a nd "extortion" in violation of section 1951(b)(2) of title 18 of the United States Code. In reply, Bank argued Vissu et's failure to o ppose its motion was a concession that the claims of the first amende d 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 rais ed 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 ob tained the court's perm ission to file it. Bank finally argued Vissuet's proposed amendments were fu tile, her request for leave to amend was dilatory, and it would suffer prejud ice if the court granted the request. Judicially noticing all of Bank's exhi bits, the court granted judgment on the pleadings in Bank's favor, ru ling Vissuet's failure to o ppose the motion constituted a concession of the first amended complaint's defects. It contin ued the hearing on the6 matter, however, to determine whether Vissuet should be granted leave to amend, and
ordered her to file br iefing on that question. 2 About a month later, the court allowed Vi ssuet to substitute her proposed second amended complaint with a new second ame nded complaint. The verified substituted second amended complaint name d both Bank and Property Sale s 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), violatio n of the UCL (third and fourth causes of action), quiet title (fifth cause of action), and wrongful foreclos ure (sixth cause of action). Vissuet submitted briefing as to why the compla int was sufficient to state those causes of action. Bank filed pa pers in reply. The trial court denied Vissuet leave to amend her first amended complaint and granted judgment on the pleadin gs without leave to amend. The court thereafter entered

2 The court's ruling states: "Concerning pl aintiff'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 addresse s 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 Vi ssuet was not permitted to add new causes of action, it later explained that its ruling was unc lear or inartful and suggested it would be more beneficial for Bank to asse ss the issues in the trial cour t 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 pr ovide cogent legal argument in support of her claims of error with citation to legal author ity, as well as supporti ng 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 Ca l.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 app eals from a judgment entered on January 14, 2013. Her notice of appeal states she a ppeals from a judgment entered after an order granting a summary judgment motion. Ho wever, Vissuet identified the judgment appealed from as being filed on December 26, 2012, which is the date the trial court entered its judgment of dism issal with prejudice. Becaus e 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 ju dgment on the pleadings. (See Cal. Rules of Court, rule 8.100(a)(2); Walker v. Los Angeles County Metropolitan Tran sit 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 wh ere the appellant merely complains of them without pertinent argument." ( Strutt v. Ontario Sa v. & 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 reviewin g court will ordinarily not consider claims made for th e first time on appeal which c ould have been but were not presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not presented and litigated in the tr ial 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 appe llate 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. [C itation.] In our adversaria l system, each party has the obligation to raise any issue or infirmity th at 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 judici al 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.Ap p.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 de monstrated bias and abused its discretion when it denied her motion for a temporary rest raining 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 tr acking" 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 faili ng 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 s upported by any citation to the reporter's transcript, or the record at all, for that matter. For th is 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 enga ged in such a practice.10 Additionally, Vissuet's argumen ts do not present facts esta blishing that bias arose from some source collateral to the proceeding. Instead, th e arguments demonstrate that Vissuet is seeking indirectly to challenge the legal and eviden tiary rulings of the court by characterizing her contentions as bias. A tria l court's rulings agains t a litigant, even if continuously erroneous, do not es tablish 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 rais e error in connection with that ruling. Such an order is separately appealable. (C ode Civ. Proc., § 904.1, subd. (a)(6) [order granting or refusing to grant an in junction is directly appealable]; Ragland v. U.S. Bank
Nat. Assn. (2012) 209 Cal.App.4th 182, 208.) Beca use Vissuet did not file a notice of appeal from the court's order denying her re quest 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 cl ear 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 sole11 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 concer ning her consolidation request s, explain how the matters involved significant common questions of law or fact, discuss whether the risks of jury confusion or prejudice outwe igh 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 reco rd for error, or make Vissuet 's arguments for her. (See Inyo Citizens for Better Planning v. Board of Supervisors (2009) 180 Cal.Ap p.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 am endment." Though we agree with the general proposition that ame ndments 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 hoop s" that the court required he r 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 c ourt's grant of judgment on the pleadings likewise fails. She maintains the court was "incorrect a nd presumptive" when it ruled Vissuet had conceded the deficiencies in her first am ended 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 compla int 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 "summar ily 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 Ca lifornia state court, but involving the Ninth Circuit's review of an immigr ation judge's denial of an a pplication for asylum and its interpretation of the Immigra tion and Nationality Act. ( Id . at pp. 775, 777-778, 781.) In another section of her brief, Vissuet contends the court e rred by denying her request for leave to file a proposed amended complain t "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 an d "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 elec ted not to oppose the motion on the merits, rather, it permitted Vissuet to substitute her second amended complaint and ordered her13 to explain in writing how that pleading cured the deficiencies raised by Bank's motion. That order was consistent w ith settled procedures on such a motion. Faced with Bank's motion for judgment on the pleadings, if Vi ssuet 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 Ba nk'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.4t h 131, 135.) The trial cour t'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 ju stify her amended pleading.

III. Vissuet Has Not Shown the Trial Court Abus ed its Discretion by Denying Leave to Amend and Granting Judgment on the Pleadings Asking us to review he r 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 re corded 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 unspecifi ed manner; and (4) failing to inform Property Sales II, LLC of pending litigatio n concerning title to the prop erty before the trustee's sale. She asserts Property Sales II, LLC was not a bona fide purchaser. " 'A motion for judgment on the pleadings . . . challe nges the sufficiency of the plaintiff's cause of action and ra ises the legal issue . . . of whether the complaint states a14 cause of action.' " ( Arce v. County of Los Angeles (2012) 211 Cal.App.4th 1455, 1483, fn. 16.) We apply the same review st andard 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 th e pleadings to determine whether a cause of action has been stated, treating as true all properly pleaded materi al facts and matters judicially noticeable ( ibid .; Soco West, Inc. v. Californ ia 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 Vissu et's allegations here. In her appellate briefs, Vissuet does not cite to the allegations of her subs tituted second amended complaint (or any of the other iterations of her pleadings) supporti ng 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 nondisc losure 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 th e '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 revi ew 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 appe al were argued in the trial court. More specifically it argues that to the extent Vi ssuet seeks to allege Bank vi olated the Homeowner Bill of Rights, that law is not retroactive. Bank argues Vissuet does not allege any modification or loan foreclosure activity oc curring after the date of its en actment: January 1, 2013. The documents attached to Bank's motion, and of which the court below took judicial notice, show the foreclosure was in itiated 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 viol ation 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 persuasi ve, although not binding, au thority].) 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 e ffective 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 an d servicing agreement (P SA), another theory raised by Vissuet for the first time on app eal. Vissuet's substituted second amended complaint's cause of action for wrongful fo reclosure 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 Truste e of the Trust than [ sic ] contained the Note and Deed of Trust and that Bank of New York wa s the only entity w ith authority to enforce the Note and Deed of Trust." She alleges Bank "receive d revenue in excess of $540,000 due to the derivative and securitization pro cesses 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 allega tions and asserts anew (again, without supporting record citations) that "[t]he par ties 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 Mo rtgage be properly endorsed , transferred, accepted, and deposited with the Securitization Trust (or its custodian) on or befo re the 'closing date' indicated on the Prospectus." Vissuet assert s 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 lo an that either [Bank of New Yo rk] or Bank of America, N.A. can attempt to collect on." (Some capitalizat ion 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.Ap p.4th 462, we addressed on review of a su mmary 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 mortga ge 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. Th ere 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 [B ank of New York] does not alter these undisputed facts or the consequence arising out of [p laintiff's] failure to repay th e First Loan. [¶] Moreover, if BAC had breached the PSA, then perhaps [Bank of Ne w York] would have a claim against BAC. But it is an unsupported leap of logic that would a llow [plaintiff] to use these breaches to challenge BAC's right to in itiate a judicial foreclosure . . . ." ( Id . at p. 473; accord, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.Ap p.4th 497, 514- 515 [borrower, who is an unrela ted third party to the alleged securitization, lacks standing to challenge improper transfer of a promisso ry 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 foreclos ure on the theory asserted in her opening brief. Vissuet has not tied her assertions to any allegation in her op erative 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 to18 conclude she has overcome the presumption of correctness of the trial court's decision to deny leave to amend and gr ant judgment on the pleadings.
DISPOSITION The judgment is affirmed.

O'ROURKE, J. WE CONCUR:
McINTYRE, Acting P. J.

AARON, J.