from its face. . 1 Cases that cite this headnote 7 Mortgages Wrongful Foreclosure In general Lender’s nominee did not have the burden of proving a valid assignment of deed of trust, in wrongful foreclosure action; rather, given the presumption of regularity, if debtor contended that foreclosure sale was invalid because assignee had no authority to conduct the sale, the burden rested with debtor affirmatively to plead facts demonstrating the impropriety. . See , ; , ; Cal. Civil Practice ; Greenwald & Asimov, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2011) ¶ 6:521 (); 4 Witkin, Summary of Cal. Law (10th ed. 2005) Security Transactions in Real Property, § 165. 2 Cases that cite this headnote 8 Mortgages Foreclosure by Exercise of Power of Sale Statutory provisions The nonjudicial foreclosure statutes are a comprehensive scheme designed: (1) to 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. . 9 Mortgages Foreclosure by Exercise of Power of Sale Operation and effect A nonjudicial foreclosure sale is presumed to have been conducted regularly, and the burden of proof rests with the party attempting to rebut this presumption. 1 Cases that cite this headnote 10 Mortgages Assignment of Mortgage or Debt Parties who may make assignment Allegation, in wrongful foreclosure action involving deed of trust, that lender’s nominee was merely a nominee was insufficient to demonstrate that it lacked authority to make a valid assignment of note on behalf of the original lender;
amend wrongful foreclosure complaint in order to attach copy of letter allegedly amending forbearance agreement, as, in light of borrower’s failure to attach letter to complaint or to opposition to bank’s demurrer, there was no reason to believe that letter constituted an amendment to the agreement and thus borrower failed to carry her burden to demonstrate reasonable possibility that she could cure the defect in the complaint. 20 Appeal and Error Review Discretion of Lower Court Amended and Supplemental Pleadings Additional or supplemental pleadings and withdrawal and pleading anew For purposes of deciding whether the trial court abused its discretion in denying leave to amend, a showing that the complaint can be amended to state a cause of action need not be made in the trial court so long as it is made to the reviewing court. 21 Appeal and Error Review Discretion of Lower Court Amended and Supplemental Pleadings Additional or supplemental pleadings and withdrawal and pleading anew In deciding whether the trial court abused its discretion in denying leave to amend, the appellate court must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment; if the court finds that an amendment could cure the defect, it concludes that the trial court abused its discretion and reverses, but if not, no abuse of discretion has occurred. 22 Appeal and Error Review Presumptions Burden of showing error On appeal from a judgment denying leave to amend, the plaintiff has the burden of proving that an amendment would cure the defect in the complaint. 23 Estoppel Equitable Estoppel Grounds of Estoppel Representations Future events; promissory estoppel Mortgages Wrongful Foreclosure In general
Borrower lacked claim for promissory estoppel in wrongful foreclosure action against bank, as promise not to foreclose was made in agreement given for proper consideration in the form of borrower’s agreement to resume making payments on promissory note secured by deed of trust. 24 Estoppel Equitable Estoppel Grounds of Estoppel Representations Future events; promissory estoppel In California, under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. 1 Cases that cite this headnote 25 Estoppel Equitable Estoppel Grounds of Estoppel Representations Future events; promissory estoppel Promissory estoppel is a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced. 2 Cases that cite this headnote 26 Estoppel Equitable Estoppel Grounds of Estoppel Representations Future events; promissory estoppel The purpose of the doctrine of promissory estoppel is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange; if the promisee’s performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable. 27 Estoppel Equitable Estoppel Grounds of Estoppel Representations Future events; promissory estoppel A plaintiff cannot state a claim for promissory estoppel when the promise was given in return for