Opinion
B225871
09-08-2011
BRANKO GARDILCIC et al., Plaintiffs and Appellants, v. JPMORGAN CHASE BANK, N.A., et al. Defendants and Respondents.
Rahel Goharchin, William D. Beck for Plaintiffs and Appellants. Alvaradosmith, John M. Sorich, S. Christopher Yoo, Christopher J. Donewald for Defendants and Respondents JPMorgan Chase Bank, N.A., California Reconveyance Company and Bank of America, National Association. Law Offices of Marc Cohen, Marc Cohen for Defendants and Respondents Adib Diab and Ghada Diab.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC055299)
APPEAL from a judgment of the Superior Court of Los Angeles County. Yvonne T. Sanchez, Judge. Affirmed.
Rahel Goharchin, William D. Beck for Plaintiffs and Appellants.
Alvaradosmith, John M. Sorich, S. Christopher Yoo, Christopher J. Donewald for Defendants and Respondents JPMorgan Chase Bank, N.A., California Reconveyance Company and Bank of America, National Association.
Law Offices of Marc Cohen, Marc Cohen for Defendants and Respondents Adib Diab and Ghada Diab.
Appellants Branko and Magdalena Gardilcic seek to recover title to their home, which was auctioned at a nonjudicial foreclosure sale after they defaulted on their loan. None of appellants' 13 causes of action succeed. Appellants did not cure the default before the sale, they did not allege an actionable promise to postpone the sale, and title to the property was delivered to a bona fide purchaser, so it cannot be disturbed under the state statutory scheme. We affirm the trial court's judgment in favor of the lender, the trustee for the deed of trust, and the purchasers of the property.
FACTS
The facts are taken from the allegations in the first amended complaint. We must assume the truth of the allegations. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
Branko and Magdalena Gardilcic purchased real property in Downey (the Property). To finance their purchase, the Gardilcics signed a promissory note for $1,425,000 in June 2006. The note is secured by a deed of trust on the Property. The original lender was Washington Mutual Bank (WAMU), which was later acquired by respondent JPMorgan Chase Bank (Chase).
In May 2009, the Gardilcics applied to Chase for a loan modification. In July 2009, Chase had respondent California Reconveyance Company (CRC), the trustee for the deed of trust, record a notice of default. Appellants' arrearage was $38,037. At the same time, Chase assigned the deed of trust to respondent Bank of America (BofA).
Despite the assignment, BofA did not process the Gardilcics' application for a loan modification. Instead, the Gardilcics spoke to Chase employee Daniel Telles, who directed them to submit tax returns and pay stubs to document their income. The Gardilcics routinely communicated with Telles in August and September 2009, to submit documentation and to learn the status of their request for a modification. Telles informed them that their application was being processed.
On October 29, 2009, CRC recorded a notice of trustee's sale, with a sale date of November 18, 2009, and a payoff amount of $1,532,077.67. On receiving the notice of trustee's sale, the Gardilcics contacted Telles, who said that he would postpone the sale. Telles sent the Gardilcics an e-mail informing them that the new sale date was December 17, 2009. As December 17 approached, the Gardilcics left several telephone messages and sent e-mails to Telles, seeking an update on their request for a modification and communicating their concern about the imminent sale date. On December 10, 2009, in response to a message from the Gardilcics, Telles sent an e-mail to the Gardilcics stating, "e-mail was sent to postpone again while they work on trial mod." The Gardilcics relied on Telles's e-mail, as he had previously postponed the sale.
On December 15, 2009, Chase mailed a letter to the Gardilcics from its office in South Carolina. The letter said that the Gardilcics do not qualify for a loan modification because their income is insufficient for the amount of credit they requested. Chase's denial letter arrived at the Gardilcics' home in Downey on December 21, 2009.
On December 17, 2009, the Property sold at a trustee's sale for $831,000. The buyers of the Property are respondents Adib and Ghada Diab. The Diabs' agent visited the Gardilcics, and informed them of the sale. The Gardilcics quickly telephoned Telles, who said that he did not know what happened; he gave them a telephone number in Florida to call. When the Gardilcics called the Chase office in Florida, they were told that the loss mitigation department forgot to send a sale cancellation notice to the real estate department. After more calls, Chase would only inform the Gardilcics that the trustee sale had occurred and refused to provide further information.
After the sale, the Gardilcics attempted to tender the purchase price of $831,000 to the Diabs, plus interest. They also informed Chase that they have funds available for payment on the mortgage account, and continued to tender payments to Chase to reinstate the loan.
PROCEDURAL HISTORY
Appellants filed suit against Chase, BofA, CRC, and the Diabs. The first amended complaint asserts causes of action for wrongful foreclosure; violation of state law regarding postponements of sales; breach of oral contract; promissory estoppel; negligence per se; cancellation of trustee's deed upon sale; setting aside trustee sale; quiet title; fraud; intentional infliction of emotional distress; and declaratory relief.
Respondents demurred to the pleading. The trial court sustained the demurrers without leave to amend on July 9, 2010. Appellants took an appeal on July 15, 2010, before a dismissal order was entered. An order dismissing the lawsuit against the Diabs was filed on August 10, 2010. The remaining defendants submitted a proposed judgment to the trial court, but the court did not sign it.
DISCUSSION
1. Appeal and Review
Appeal lies from a dismissal order after demurrers are sustained without leave to amend. (Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1); Serra Canyon Co. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 667.) The record contains an order dismissing the Diabs, but not the remaining defendants. A proposed judgment was submitted to the trial court that would have created an appealable order. In light of the court's failure to sign the proposed judgment—and the fact that the case is fully briefed— we shall deem the order on the demurrer to incorporate a judgment of dismissal and will review the case. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1; Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) We review de novo the ruling on the demurrer, exercising our independent judgment to determine whether a cause of action has been stated as a matter of law. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.)
2. Appellants' Claims
a. Chase's Alleged Violation of an Agreement to Postpone the Sale of Appellants' Property and Irregularities in the Notice of Trustee's Sale
Appellants make numerous claims regarding Chase's alleged (1) promise to postpone the foreclosure sale and (2) defects in Chase's notice of trustee's sale. Despite Chase's promise and the defective notice, the bank went forward with the sale on December 17, 2009. Appellants assert that the defective notice and the reneged-upon promise support their claims for wrongful foreclosure; violation of statutory foreclosure sale requirements; cancellation of the trustee's deed upon sale; and to set aside the trustee's sale. In these causes of action, appellants seek an equitable order voiding the foreclosure sale and returning the Property to appellants.
In a nonjudicial foreclosure—a "trustee's sale"—the trustee exercises the power of sale given by the deed of trust. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 440.) State law comprehensively regulates nonjudicial foreclosures to (1) provide the creditor with a speedy, inexpensive and efficient remedy against a defaulting debtor; (2) protect the debtor from wrongful loss of the property; and (3) ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. (Ibid.; Moeller v. Lien (1994) 25 Cal.App.4th 822, 830.)
While a trustee's sale is generally complete upon acceptance of a bid, completion may be derailed by defective notice that renders the sale void. (Nguyen v. Calhoun, supra, 105 Cal.App.4th at p. 441.) But, "'If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser.'" (Ibid.) Mistakes that arise outside of the sale proceedings do not invalidate a foreclosure. (Ibid.)A mistake that "resulted from miscommunications related to an agreement for a nonstatutory postponement . . . does not constitute an irregularity in the foreclosure proceeding itself." (Id. at p. 445.)
Appellants' reliance on an alleged oral promise to postpone the foreclosure sale— and their effort to obtain a loan modification—cannot be the basis for setting aside the sale. In Nguyen, the plaintiffs claimed "that the foreclosure was conducted in violation of an oral promise to postpone the sale." (105 Cal.App.4th at p. 444.) However, the court "conclude[d] that the foreclosure sale may not be set aside based on the lender's alleged breach of an oral agreement to postpone the trustee's sale." (Id. at p. 445.) Chase's alleged promise to postpone and appellants' efforts to secure a loan modification are outside the confines of the statutory proceeding, and cannot form the basis of an equitable order to invalidate the foreclosure sale after the trustee has delivered the deed to the purchaser. (Cf. Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 811, 823-824 [foreclosure sale could be set aside when a trustee mistakenly sells property after the borrower and lender agreed to a repayment plan, which cured the default and reinstated the loan, so long as the trustee has not delivered the trustee's deed to the plaintiff, who was the high bidder at the sale: without title, plaintiff is not a bona fide purchaser].)
Appellants also claim procedural irregularities in the sale of the Property. In appellants' view, the irregularity is that Chase (not BofA) instructed CRC to record a notice of default and notice of trustee's sale. The record shows that the "trustee" on the deed of trust is CRC. On July 23, 2009, CRC issued a notice of default and election to sell under the deed of trust. That same day, Chase assigned its interest in the deed of trust to BofA. The notice of default does not identify Chase or BofA as the beneficiary of the trust deed, and the notice of trustee's sale refers to WAMU, the original beneficiary under the deed of trust.
The deed of trust conveys title to the trustee, to execute the terms of the trust. (Aviel v. Ng (2008) 161 Cal.App.4th 809, 816.) A notice of default may be filed by a "trustee, mortgagee, or beneficiary, or any of their authorized agents." (Civ. Code, § 2924, subd. (a)(1).) Regardless of whether Chase or BofA was the beneficiary under the Gardilcics' deed of trust, CRC was at all times the trustee holding the power of sale. As trustee, CRC could legally record a notice of default, as provided in the deed of trust. The notice must include: a statement identifying the deed of trust with the names of the trustors and a description of the trust property; a statement that a breach of the obligation has occurred; and the nature of the breach. (Civ. Code, § 2924, subd. (a)(1)(A)-(C).)
Here, the notice of default contains all of the required information, and states that "the present beneficiary under [the] Deed of Trust[] has executed and delivered to [CRC] a written Declaration and Demand for Sale." Appellants do not dispute that they were in default, which gave CRC authority to issue the notice of default. On its face, the notice of default is not misleading or defective in any respect. (Compare In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1232, in which the notice "misdescribed the property subject to foreclosure.") The notice of default does not identify, one way or another, the current beneficiary. It is clear that the beneficiary was exercising the right to foreclose, and there is no basis for invalidating a sale merely because the deed of trust was assigned from one bank to another at a time when the borrowers were already in default. (See Jones v. First American Title Ins. Co. (2003) 107 Cal.App.4th 381, 388-389 [validating a trustee's sale that mistakenly was not conducted by the trustee of record, to preserve the lender's right to foreclose after the borrower defaulted].)
Appellants contend that they have done equity by tendering the debt owed. Their complaint alleges that "After the wrongful sale to the Diabs, plaintiffs have and continue to properly tender the purchase price of $831,000 plus legal interest to Diabs." They also allege that they had access to funds for payment, and were attempting to negotiate more favorable loan terms when the Property was sold. The pleading includes a declaration from a real estate investor, indicating her willingness to pay $831,000 on behalf of the Gardilcics. The payoff amount shown in the notice of trustee's sale was $1,532,077.67. Appellants do not allege that they tendered this sum to the lender before the sale date.
During the foreclosure process, the debtor can cure the default and avoid losing the property: there is a period of reinstatement that lasts until five business days prior to the sale. (Civ. Code, § 2924c.) "Once the trustee's sale is completed, the trustor has no further rights of redemption." (Moeller v. Lien, supra, 25 Cal.App.4th at p. 831.) If statutory notice requirements and procedures have been satisfied, a conclusive presumption arises that the sale was properly conducted: a bona fide purchaser takes title free and clear of any right, title or interest of the trustor. "Thus, as a general rule, a trustor has no right to set aside a trustee's deed as against a bona fide purchaser for value by attacking the validity of the sale." (Ibid.) If the defaulting trustor attempts to deliver a cashier's check for the amount of the debt after the sale has occurred—even later the same day—the bank has no obligation to accept the untimely tender. (Id. at p. 833.)
Here, appellants allege that after the sale, they attempted to tender $831,000 for the Property, about half of what they actually owe the lender. The law allowed appellants to redeem the Property for the amount owed, before the sale. Appellants cannot come to the table and attempt to wrest title from a bona fide purchaser after the sale has occurred, just because the purchaser procured an advantageous price at auction. If appellants had $831,000 in hand, they had every right to go to the sale and bid for the Property, and maybe they could have outbid the Diabs. That did not happen. (Dreyfuss v. Union Bank of California (2000) 24 Cal.4th 400, 410 ["Anyone . . . can bid at a foreclosure sale" (italics added)]; Bernhardt, Mortgages, Deeds of Trust, and Foreclosure Litigation (Cont.Ed.Bar 4th ed. 2011) § 2.76, p. 120 ["No party is barred from bidding . . ."].) Absent a pre-sale tender of the full amount of the indebtedness owing, appellants cannot maintain a cause of action for wrongful foreclosure. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109; United States Cold Storage v. Great Western Savings & Loan Assn. (1985) 165 Cal.App.3d 1214, 1222.)
b. Breach of an Oral Contract to Postpone the Sale and Promissory Estoppel
Appellants claim there was an oral promise by Chase to postpone the sale of the Property. Chase breached this alleged promise by not postponing the sale date. The pleading does not allege facts showing an oral promise. In paragraphs 22, 23 and 47, appellants allege that as the foreclosure sale date approached, they grew concerned and "emailed Telles for an update about the postponement. [¶] On December 10, 2009, approximately two minutes after plaintiffs had sent the email for an update about the postponement, Telles for Chase told plaintiffs 'email was sent to postpone again while they work on trial mod.'" An e-mail from Telles is cited and attached as an exhibit in support of the allegation. An e-mail is not an oral promise to perform.
Appellants rely on a statute stating that the trustee shall postpone the sale if there is a "mutual agreement, whether oral or in writing" between the beneficiary and the trustor. (Civ. Code, § 2924g, subd. (c)(1)(C).) Even if there were factual allegations of an oral promise in the complaint, the courts have rejected gratuitous oral promises to postpone a foreclosure. A mortgage must be in writing and an "agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds." (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 553.) This court has held that an agreement by a lender to forbear from exercising the right of foreclosure under a deed of trust comes within the statute of frauds and must be in writing: a gratuitous oral promise not to foreclose is "unenforceable." (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 120-121; Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 673.)
Apart from the lack of compliance with the statute of frauds, there is an insufficient allegation of an actual promise to postpone the sale that would induce reasonable reliance by appellants. The alleged promise was an e-mail from Chase employee Telles on December 10, 2009. It reads, "e-mail was sent to postpone again while they work on trial mod." From this brief and ambiguous message, appellants draw a promise by Chase to postpone the sale.
Under the promissory estoppel doctrine, a promise is made to induce action or forbearance on the part of the promisee. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 320-321.) The promise "'must be clear and unambiguous.'" (Cotta v. City and County of San Francisco (2007) 157 Cal.App.4th 1550, 1566; CalFarm Ins. Co. v. Krusiewicz (2005) 131 Cal.App.4th 273, 284.) Estoppel is disfavored, so the person asserting it must leave nothing to surmise or questionable inference. (Landberg v. Landberg (1972) 24 Cal.App.3d 742, 758-759.) The existence of an estoppel may be decided as a matter of law if there is only one conclusion to be drawn from the facts. (Id. at p. 759.) The doctrine is simply "'inapplicable where no clear promise is made.'" (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) Extrinsic evidence cannot be used here: "[I]f extrinsic evidence is needed to interpret a promise, then obviously the promise is not clear and unambiguous." (Id. at p. 1186.)
We cannot find in Telles's e-mail a promise of any sort, let alone a promise of sufficient definitiveness and clarity to justify applying promissory estoppel. Telles did not promise appellants that the sale was postponed. Rather, he informed them that he sent someone a request for a postponement. There is no indication that Telles had authority to stop a foreclosure sale. (Cf. Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1035 [bank representative assured the borrower that the property "'won't go to sale because I have the final say-so and . . . I'll extend it'"].) On a prior occasion in November 2009, when Telles told appellants that the sale date was postponed, he documented the promise with an e-mail giving a new sale date of December 17. (See, e.g., Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 223 [estoppel may be asserted against a lender that induced a borrower to allow her bankruptcy stay to be lifted by promising, in writing, that it would work with her to reinstate and modify the loan. Once the bankruptcy stay was lifted, the lender promptly foreclosed without negotiating with the borrower].)
Appellants did not follow up to determine whether the request for a postponement was granted. Moreover, the message from Telles indicates that any postponement would last only while Chase processed appellants' modification request. As it turns out, Chase finished processing appellants' request for a loan modification on December 15, and determined that appellants did not qualify. Had appellants contacted Chase before the sale date, they would have discovered that the modification was denied, and the sale was proceeding. As a matter of law, Telles's e-mail of December 10 did not constitute a clear and unambiguous promise to postpone the sale date until after December 17.
c. Fraud
The elements of a cause of action for fraud are (1) a material misrepresentation; (2) knowledge of its falsity; (3) intent to induce reliance; (4) justifiable detrimental reliance; and (5) resulting damage. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 156.) The alleged misrepresentation in this case is the December 10 message from Telles to appellants, stating that an "e-mail was sent to postpone again while they work on trial mod." Telles's message is not enough to induce justifiable reliance by appellants. The e-mail contains no promise that Chase is giving up its right to proceed with the foreclosure sale. At most, the sale would not occur until appellants' modification application was resolved, and their application was, in fact, denied two days before the sale date. The e-mail does not promise any further notice before the foreclosure sale, it does not relieve appellants of their contractual duty to cure the default, and it is not a promise to restructure the loan. A bank employee's assurance that a borrower's application is being processed is not a promise to make a loan, so the borrower could not justifiably rely on the employee's statement. (Id. at pp. 156-157.)
Apart from the lack of justifiable reliance on Telles's e-mail, appellants did not establish the element of actual damage. "Misrepresentation, even maliciously committed, does not support a cause of action unless the plaintiff suffered consequential damages." (Conrad v. Bank of America, supra, 45 Cal.App.4th at p. 159.) Appellants' claimed damages arise from their inability to repay their loan. They do not allege that they were in a financial position to tender full repayment on the note, or qualified for a new loan from another bank after defaulting on the note. "[I]f plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs." (FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022.) Appellants were not in any different position as a result of Telles's e-mail. Chase had no obligation to modify the loan after appellants defaulted, which caused the note to accelerate and the full loan amount to become due and owing.
d. Negligence Per Se
In three causes of action, appellants assert claims of negligence per se, arising from respondents' alleged violation of the foreclosure statutes and the unfair competition law. Appellants contend that respondents violated Civil Code section 2429g or 2924h; however, as discussed above, there was no mutual promise or agreement to postpone the sale date, so there was no violation of the statutes requiring postponement of the sale or the cancelling of bids, in the event of a mutual agreement to postpone. Appellants assert that respondents failed to follow the statutory requirements for notices of default, which impose a due diligence obligation to assess the borrower's financial situation and explore options to avoid foreclosure. (Civ. Code, § 2923.5, subd. (a)(1)-(2).) The statute does not assist appellants at this late date. Noncompliance with Civil Code section 2923.5 does not cloud title after the foreclosure sale is conducted: "under the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens." (Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235.) Appellants cannot rely on the statute to invalidate a sale that has already occurred.
Appellants argue that respondents violated the unfair competition law (UCL), Business and Professions Code section 17200, by "dishonoring a postponement agreement reached on December 10, 2009 . . . and by sending a denial letter, dated December 15, 2009, by regular mail from South Carolina to Downey California," which reached appellants after the foreclosure sale on December 17. Appellants contend that as a result of these unfair practices, they lost the Property.
An unfair business practice may be actionable under the UCL even if it is not deceptive or unlawful. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) The UCL is essentially equitable, and a plaintiff may seek injunctive relief and restitution, but no money damages. (Cel-Tech, at p. 179.) Although many types of unfair business practices may be restrained, the courts may not override the Legislature's determination to provide a "'safe harbor'" in which no action may be brought. (Id. at pp. 181-182.) The UCL "does not permit an action that another statute expressly precludes." (Cel-Tech, at p. 184.)
As discussed above, state law comprehensively regulates nonjudicial foreclosures. One of the goals of the statutory scheme is to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. (Nguyen v. Calhoun, supra, 105 Cal.App.4th at p. 440.) So long as the proper statutory notices are given, a completed trustee's sale cannot be invalidated by evidence that the foreclosure was conducted in violation of an oral promise to postpone the sale. (Id. at pp. 444-445.) In this instance, the proper statutory notices were given by the trustee, CRC. There is a conclusive presumption that the sale to bona fide purchasers is valid and cannot be disturbed. The Legislature did not intend for the UCL to be used to dismantle the complex statutory scheme regulating nonjudicial foreclosure sales.
e. Intentional Infliction of Emotional Distress
To establish a cause of action for intentional infliction of emotional distress, a plaintiff must plead: (1) defendant engaged in extreme and outrageous conduct with the intention of causing, or in reckless disregard of the likelihood of causing, emotional distress and (2) plaintiff suffered severe or extreme emotional distress that was actually and proximately caused by defendant's outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Outrageous conduct is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)
Appellants have not adequately pleaded a claim for intentional infliction of emotional distress. A bank cannot be liable for emotional distress "when it has merely pursued its own economic interests and properly asserted its legal rights," so long as it did not act in an illegal or impermissible manner, or direct threats and abuse toward plaintiff. (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67; Standard Wire & Cable Co. v. AmeriTrust Corp. (C.D.Cal. 1988) 697 F.Supp. 368, 372.) In this instance, Chase and CRC foreclosed on appellants in pursuit of their own economic interests, and had every right to do so because appellants were in default on their note and the deed of trust permits foreclosure on the property of delinquent borrowers. Chase did not promise to halt the foreclosure sale, and appellants did not tender the required sum of over $1.5 million to avert foreclosure. On these facts, no jury could reasonably find that respondents engaged in outrageous conduct that exceeds the bounds of civilized conduct.
Appellants cannot sue for any humiliation they felt when CRC recorded the notices of default and sale, and the trustee's deed upon sale. The mailing, publication and delivery of notices in nonjudicial foreclosure proceedings, and the performance of statutory foreclosure procedures are privileged communications. (Civ. Code, § 2924, subd. (d); Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333-342.)
f. Declaratory Relief
Appellants allege that an actual controversy exists between them and respondents concerning their respective rights and duties in regard to the Property. As previously discussed, there is a conclusive presumption that a properly noticed trustee's sale is valid, if the property is sold to a bona fide purchaser. Appellants did not tender the full amount of the debt before the sale, and there is no showing of a promise by the lender to cancel the sale. There is no justiciable controversy to be resolved.
g. Quiet Title
Appellants allege that the Diabs have no right, title or interest in the Property. This claim is based on appellants' alleged effort to advise Chase that they had access to funds for payment, and their effort to tender about half of their debt to Chase and to the Diabs. The Diabs had no notice that Chase and appellants were discussing a loan modification before the sale, and the Diabs have no duty to accept payment from appellants and surrender title to the Property. Appellants did not tender the full $1.5 million accelerated debt secured by the Property either before or after the sale. Without this tender, appellants cannot maintain an equitable cause of action.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J