Opinion
A149307
03-12-2018
MARIBEC NATIVIDAD, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15759454)
Maribec Natividad unsuccessfully sought modification of her mortgage loan from Bank of America, N.A. (BANA). When foreclosure proceedings were initiated, she filed suit, alleging tort claims for negligence in the handling of her modification applications and violation of the unfair competition law (UCL) (Bus. & Prof. Code, § 17200, et seq.). She argues the trial court erred in dismissing her claims on demurrer. We affirm.
I. BACKGROUND
We assume the truth of all facts properly pleaded, and accept as true all facts that may be implied or reasonably inferred from those expressly alleged. We do not assume the truth of contentions, deductions or conclusions of fact or law. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986.)
In 2005, Natividad obtained a mortgage on property at 1133 Donahue Drive in Pleasanton from Countrywide Bank, which subsequently was taken over by BANA. In 2010, BANA rejected a loan modification application submitted by Natividad on the false ground that she had not produced sufficient documentation. In May 2011, BANA closed review of another loan modification application by Natividad, again on the ground that she had not provided sufficient documentation. In September 2011, a notice of default and election to sell was filed. In November 2011, Natividad submitted a new application that was reviewed by BANA's outreach program staff as complete and accurate. In December 2011, BANA filed a notice of trustee's sale, which announced a sale date in February 2012. Natividad filed for bankruptcy, and BANA halted foreclosure proceedings. In April 2012, BANA denied Natividad's most recent application, again on the false ground of insufficient documentation. Natividad submitted another loan modification application and, after a "workout review" in June and July 2012, BANA reported Natividad's loan had become too large for modification under the Home Affordable Modification Program (HAMP). In June 2012, however, BANA had instructed the trustee to schedule a foreclosure for October 2012, while later assuring Natividad no sale was scheduled. Ocwen took over servicing the loan in the fall of 2012. In May 2013, Natividad requested consideration of a loan modification under Department of Justice or BANA in-house programs. In September 2014, BANA filed a notice of default and election to sell.
The original deed of trust named Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary. MERS later assigned its interest in Natividad's deed of trust to BAC Home Loans Servicing, LP, which later merged into BANA. BANA ceased servicing Natividad's loan in October 2012, and assigned loan servicing rights to Ocwen Loan Servicing, LLC (Ocwen).
The trial court took judicial notice of a July 2013 rescission of the September 2011 notice of default.
Although we granted BANA's unopposed April 26, 2017 motion to augment the appellate record, we decline to consider the augmented evidence not before the trial court when it ruled on the demurrer. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1139, fn. 7, disapproved on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 269.)
On February 20, 2015, Natividad sued BANA. As relevant here, her second amended complaint included negligence and UCL claims. BANA demurred, arguing it owed no duty of care in the handling of Natividad's loan modification applications; any mishandling of the 2013 application was done by Ocwen, not BANA; and the negligence claim was untimely because the last alleged wrongful act by BANA took place more than two years before she filed her complaint on February 2015. (See Code Civ. Proc., § 335.1.) The trial court sustained the demurrer without leave to amend as to the negligence cause of action on the ground it was untimely. BANA argued the UCL claim failed because it was premised in part on the meritless negligence claim and because Natividad failed to show loss of money or property. Natividad did not defend the UCL claim in her opposition to the demurrer. The trial court sustained the demurrer without leave to amend as to the UCL claim on the grounds that Natividad had not opposed the demurrer to this cause of action and in any event had not alleged loss of money or property. After further proceedings not directly relevant to this appeal, the court entered a judgment of dismissal
II. DISCUSSION
We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) In doing so, we assume the truth of all material factual allegations together with those matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Because the trial court sustained the demurrer without leave to amend, Natividad has the burden of proving an amendment would cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If we find a reasonable possibility the defect could be cured by amendment, we will conclude the trial court abused its discretion and reverse. (Ibid.) A. Accrual of Negligence Claim
Natividad argues the court erred in ruling her claim was time-barred. We separately discuss the viability of a cause of action for negligence in this context, but we agree with the trial court that the claim would be time barred in any event.
Natividad argues Ocwen acted as BANA's agent after October 2012, Ocwen's alleged acts in 2013 fall within the two-year limitations period, and her negligence cause of action did not accrue until she was finally denied a loan modification in 2013. We assume for purposes of argument that Ocwen acted as BANA's agent, but nevertheless affirm because Natividad's negligence cause of action accrued when she first became ineligible for a HAMP loan modification, more than two years before she filed suit.
Natividad's complaint alleges BANA's negligent handling of the applications caused her loan balance to increase to a level that disqualified her from receiving a HAMP modification. According to the complaint, this occurred in July 2012—more than two years before she sued in February 2015. On appeal, Natividad argues she did not incur damages until she was deprived of all loan modification opportunities. However, "[i]n tort actions, the statute of limitations commences when the last element essential to a cause of action occurs. [Citation.] . . . If the last element of the cause of action to occur is damage, the statute of limitations begins to run on the occurrence of 'appreciable and actual harm, however uncertain in amount,' that consists of more than nominal damages." (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1326.) Loss of the opportunity to obtain a HAMP modification indisputably was an appreciable and actual element of the harm Natividad allegedly suffered. Natividad did not have the right to wait until all possible harms had come to pass before she went to court to enforce her rights. B. UCL Claim
Natividad argues the allegations underlying her negligence claim also support a UCL claim, which would not be barred by the statute of limitations. (Bus. & Prof. Code, § 17208; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179 [UCL cause of action is subject to four-year limitations period].)
Natividad did not oppose BANA's demurrer to the UCL claim. We generally do not review theories not argued in the trial court. (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 906, 908.) However, " 'a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts.' " (Id. at p. 908; accord, Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 22.) "A demurrer is directed to the face of a complaint (Code Civ. Proc., § 430.30, subd. (a)) and it raises only questions of law ([id.], § 589, subd. (a); [citation]). Thus an appellant challenging the sustaining of a general demurrer may change his or her theory on appeal [citation], and an appellate court can affirm or reverse the ruling on new grounds." (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)
BANA asks us to consider extra-record evidence to establish that Natividad's pleading allegations of cognizable economic injury are false. We decline to do so. " 'As a reviewing court, we usually consider only matters that were part of the record when the judgment was entered.' " (City of Petaluma v. Cohen (2015) 238 Cal.App.4th 1430, 1439.)
We first question whether stand-alone UCL injunctive relief is available in a preforeclosure proceeding. It can be argued that permitting such relief outside the remedies expressly provided in the Homeowners Bill of Rights (HBOR) (Civ. Code § 2924.12, subd. (a)(1)) would be inconsistent with the statutory scheme governing nonjudicial foreclosure. (See Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 158-159, 161 ["[w]here the HBOR applies, actions that disrupt its expeditious [nonjudicial foreclosure] process by threatening to enjoin the sale should be limited to the particular violations for which the Legislature has authorized such preforeclosure lawsuits"].) However, neither side has addressed this issue in briefing, and we need not decide it here.
The more immediate issue before us is the viability of the tort claim predicate for Natividad's UCL claim. An action under the UCL " 'is not an all-purpose substitute for a tort or contract action.' " (Zhang v. Superior Court (2013) 57 Cal.4th 364, 371.) Natividad's proposed UCL claim is indistinguishable from her claim that lenders owe borrowers a common law tort duty of care in the handling of their loan modification application. Breach of a contractual promise is normally enforced through contract law, " "except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.' " (Erlich v. Menezes (1999) 21 Cal.4th 543, 552, 553-554.) " 'The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.' " (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57.) Whether a duty to use due care exists in a particular case is a question of law to be resolved by the court. (Ibid.)
We do not find that the law imposes a general duty of care on lenders in the handling loan modification applications, though we recognize a lack of consistency in how this question has been addressed on appeal. In our own district, one court has held that lenders owe a duty of care in handling modification applications (Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 944-950 (Alvarez), and another has suggested it in dicta (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 902-905 (Jolley)). However, our colleagues in Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299 (Rufini) came to a contrary conclusion, as have our colleagues in the Fourth District (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182 (Ragland); Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49 (Lueras)).
Federal trial court opinions are frequently discussed by state courts considering whether a duty of care arises in the context of loan modification negotiations. (See, e.g., Ansanelli v. JP Morgan Chase Bank, N.A. (N.D.Cal., Mar. 28, 2011, No. C 10-03892 WHA) 2011 U.S.Dist. Lexis 32350, pp. *1-*3, *21-*22 [finding a duty of care where bank offered trial loan modification plan, then reneged on a promise to modify the loan]; Alvarado v. Aurora Loan Services, LLC (C.D.Cal., Sept. 20, 2012, No. SACV 12-0524-DOC-(JPRx)) 2012 U.S.Dist. Lexis 135637, pp. *17-*18 ["offering loan modifications is sufficiently entwined with money lending so as to be considered within the scope of typical money lending activities"; conventional money lender test sufficient "to determine no duty of care owed in servicing [a plaintiff's] mortgage loan and loan modification"].) However, such decisions are not binding authority, and we do not repeat a review of those decisions here.
Jolley reversed a grant of summary judgment in favor of a foreclosing lender against a borrower who unsuccessfully sought modification of a commercial construction loan agreement. (Jolley, supra, 213 Cal.App.4th at p. 877-878.) Jolley's complaint alleged causes of action for intentional misrepresentation, negligent misrepresentation, breach of contract/promissory estoppel, negligence, violation of the UCL, as well as sought declaratory relief, accounting, and reformation. (Id. at p. 881.) In addressing the negligence cause of action, the court acknowledged that generally "a financial institution owes no duty of care to a borrower when [its] involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) The Jolley court observed, however, that a lender might nevertheless be liable under some circumstances for negligence in handling of a loan transaction even within its conventional role as a lender of money, considering the six factors articulated in Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (Biakanja) in assessing the existence of a duty of care. (Jolley, at pp. 898-899, 901-902.) But the Jolley court, in reversing summary judgment on the negligence cause of action, did not hold that such a duty existed as a matter of law. (Id. at p. 906.) The court concluded that the existence of a duty depended on factual disputes that needed to be resolved by the trial court. (Id. at pp. 897, 907.) The Biakanja factors only "compel[led] a conclusion for Jolley" that summary judgment must be reversed, not that the bank owed him a duty of care. (Jolley, at p. 899.) The court went on, in dicta, to suggest that an ordinary mortgage lender might also owe a duty of care when negotiating modification of a residential loan, at least in the context of the 2008 home mortgage crisis and in light of the remedial policies embodied in the HBOR and other state and federal legislation. (Id. at pp. 902-906.)
These nonexhaustive factors are "(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct, and (6) the policy of preventing future harm." (Jolley, supra, 213 Cal.App.4th at p. 899.)
In Alvarez, Alvarez had been told his application for modification of his residential mortgage loan had been rejected because his reported monthly gross income was inadequate, whereas his paystubs showed his actual monthly gross income was over twice the amount reported by the lender. With respect to a loan on a rental property, he was told his application showed a monthly loss, while Alvarez alleged there was no such deficit. With respect to the loan on another rental property, the complaint alleged defendants falsely advised him that no documents had been submitted for review when in fact the documents had been received by defendants. Another plaintiff in the action alleged that, after working with defendants for over two years to obtain a loan modification, defendants falsely advised him that a second lien holder prevented the modification from taking place. (Alvarez, supra, 228 Cal.App.4th at p. 945.)
Applying the Biakanja factors, the Alvarez court held a home mortgage lender owed a borrower a duty of care in its "review of [borrowers'] loan modification applications once [the lender] had agreed to consider them." (Alvarez, supra, 228 Cal.App.4th at pp. 944-945 [expressly distinguishing duty of care to offer or approve a loan modification].) The Alvarez court held the plaintiff borrowers stated a potentially meritorious claim that the lender breached this duty by allegedly "(1) failing to review plaintiffs' applications in a timely manner, (2) foreclosing on plaintiffs' properties while they were under consideration for a HAMP modification and (3) mishandling plaintiffs' applications by relying on incorrect information." (Id. at pp. 944-945; see id. at pp. 948-950.) "Plaintiffs allege that the mishandling of their applications 'caus[ed] them to lose title to their home, deterrence from seeking other remedies to address their default and/or unaffordable mortgage payments, damage to their credit, additional income tax liability, costs and expenses incurred to prevent or fight foreclosure, and other damages.' . . . Should plaintiffs fail to prove that they would have obtained a loan modification absent defendants' negligence, damages will be affected accordingly, but not necessarily eliminated." (Id. at pp. 948-949.)
As noted ante, other courts have reached a contrary conclusion. In Ragland, supra, 209 Cal.App.4th 182, the borrower under a deed of trust sued the assignee of loan and others for negligent misrepresentation, fraud, breach of oral contract, intentional and negligent infliction of emotional distress, and rescission of a foreclosure sale. The trial court granted summary judgment and summary adjudication to the defendants. (Id. at pp. 186-187.) The reviewing court "applying basic contract and tort law," reversed the judgment on the causes of action for negligent misrepresentation, fraud, wrongful foreclosure, and intentional infliction of emotional distress, finding triable issues of fact as to whether Ragland was induced her to miss a loan payment. The court affirmed summary adjudication of the causes of action for breach of oral contract, negligent infliction of emotional distress, and rescission. (Id. at p. 187.)
On the claim for negligent infliction of emotional distress, Ragland argued that a relationship sufficient to create a duty of care arose by virtue of (1) the implied covenant of good faith and fair dealing in the loan documents and (2) financial advice rendered defendants' representatives in telephone calls. (Ragland, supra, 209 Cal.App.4th at pp. 205-206; see id. at pp. 188-189.) Affirming grant of summary adjudication of this cause of action, the court noted first that, outside of the insurance context, breach of the implied covenant of good faith and fair dealing does not give rise to tort damages. (Id. at p. 206, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 692-693; see Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43 [compensation for breach of covenant of good faith and fair dealing is generally limited to contract remedies].) Relying on Nymark, the court found any advice rendered by the defendants' representatives "directly related to the issue of loan modification and therefore fell within the scope of [defendant lender's] conventional role as a lender of money" and insufficient to create a duty of care. (Ragland, at p. 207.)
"The distinction between tort and contract is well grounded in common law, and divergent objectives underlie the remedies created in the two areas. Whereas contract actions are created to enforce the intentions of the parties to the agreement, tort law is primarily designed to vindicate 'social policy.' " (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 683.)
In Lueras, supra, 221 Cal.App.4th 49, the borrower applied for a loan modification under HAMP. He entered into a forbearance agreement with the bank that allowed him to make reduced monthly payments for six months while the bank considered a permanent loan modification. He submitted all requested documentation for a modification and continued making payments. After 10 months, a notice of default was recorded and the borrower was later served with a notice of trustee's sale. The bank eventually orally offered the borrower a HAMP loan modification, subsequently denied it by letter while promising not to foreclose on the home, and then promised a modification again subject to Fannie Mae approval. The borrower never received a final answer on his application and his house was sold at a foreclosure sale. (Id. at pp. 56-59.)
Disagreeing with the dicta in Jolley, the Lueras court rejected the proposition that "a residential lender owes a common law duty of care to offer, consider, or approve a loan modification, or to explore and offer foreclosure alternatives. . . . [¶] . . . The Biakanja factors do not support imposition of a common law duty to offer or approve a loan modification. If the modification was necessary due to the borrower's inability to repay the loan, the borrower's harm, suffered from denial of a loan modification, would not be closely connected to the lender's conduct. If the lender did not place the borrower in a position creating a need for a loan modification, then no moral blame would be attached to the lender's conduct." (Lueras, supra, 221 Cal.App.4th at p. 67.) On the facts of the case, the court held the bank "did not owe a duty of care to handle Lueras's loan 'in such a way to prevent foreclosure and forfeiture of his property.' . . . [¶] Lueras did not allege Bank of America and ReconTrust did anything wrongful that made him unable to make the original monthly loan payments. Lueras did not allege Bank of America and ReconTrust caused or exacerbated his initial default by negligently servicing the loan. To the contrary, he alleged his inability to make the payments was caused by financial hardship due to the 'drastically decreased . . . demand of his services of his contracting business' and his wife's loss of employment. Lueras's allegations that Bank of America and ReconTrust owed him duties to 'follow through on their own agreements,' to comply with consumer protection laws, and to stop foreclosure sales that were unlawful fail to state a cause of action for negligence." (Id. at p. 68.)
The Lueras court did, however, conclude a lender owes "a duty to a borrower to not make material misrepresentations about the status of an application for a loan modification or about the date, time, or status of a foreclosure sale. The law imposes a duty not to make negligent misrepresentations of fact. [Citations.] . . . It is foreseeable that a borrower might be harmed by an inaccurate or untimely communication about a foreclosure sale or about the status of a loan modification application, and the connection between the misrepresentation and the injury suffered could be very close." (Lueras, supra, 221 Cal.App.4th at pp. 68-69, fn. omitted; see id. at p. 55 [13 days prior to foreclosure, bank "expressly and in writing informed Lueras he '[would] not lose [his] home during this review period"; bank representative also orally informed Lueras "the pending foreclosure sale would be postponed[, but] days later, [the bank] foreclosed"].)
Two other published opinions found a duty of care in cases involving lenders who advised the borrower to become delinquent in order to be considered for a loan modification. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1180-1183; Rossetta v. CitiMortgage, Inc. (2017) 18 Cal.App.5th 628, 640-641 [emphasizing this element].)
Similarly, Rufini, supra, 227 Cal.App.4th 299 involved an action brought by a homeowner borrower following a failed loan modification and foreclosure, alleging wrongful foreclosure, breach of contract and of the covenant of good faith and fair dealing, breach of fiduciary duty, negligence, negligent misrepresentation, and unfair business practices. (Id. at pp. 302-303.) The trial court sustained demurrers, without leave to amend, as to all causes of action. The reviewing court affirmed an order sustaining the demurrer to the causes of action for general negligence, breach of fiduciary duty, and an accounting, and reversed it as to the causes of action for breach of contract, negligent misrepresentation and unfair business practices. (Id. at p. 302.) Rufini's negligence cause of action alleged breaches of contractual obligations and contended that the loan servicer violated its duty when it " 'negligently and carelessly rejected plaintiff's tenders of the reimbursement amounts.' " (Id. at p. 311.) The Rufini court found general allegations that a lender's actions were negligent insufficient to support a separate cause of action in tort. " ' "[C]ourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies." ' " (Ibid.) Rufini alleged that the lender owed him a fiduciary duty to use reasonable care and due diligence in handling his loan modification application. Citing Ragland and Nymark, the court found the plaintiff's factual allegations failed to show the defendant's activities went beyond its conventional role as a mere lender of money and "therefore do not establish the existence of a fiduciary duty." (Rufini, at p. 312.)
The court found the pleading allegations in that case sufficient to support a cause of action under the UCL based on underlying nonstatutory claims for fraud, negligent misrepresentation, breach of contract and promissory estoppel. (Rufini, supra, 227 Cal.App.4th at p. 310.) As we have noted ante, the predicate for the UCL claim here is the general negligence claim.
We agree with our colleagues in Ragland, Lueras, and Rufini that no general duty of care is imposed on a lender in handling or processing a loan modification application where "the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." (Nymark, supra, 231 Cal.App.3d at p. 1096; see Wagner v. Benson (1980) 101 Cal.App.3d 27, 34-35; Alvarado v. Aurora Loan Services, LLC, supra, 2012 U.S.Dist. Lexis 135637, p. *17 [if lenders were "held to a higher standard of care by offering a service that could benefit borrowers whose circumstances have changed, [lenders] would be discouraged from leniency and would assert their rights to reclaim the property upon the borrower's default"].) Natividad fails to plead facts establishing that BANA exceeded that role here.
Natividad notes that Lueras recognized a valid UCL cause of action based the lender's false representations that the borrower did not qualify for a HAMP loan modification. However, the borrower in Lueras specifically alleged a "breach of industry standards set by [title] 15 [United States Code section] 1639a." (Lueras, supra, 221 Cal.App.4th at pp. 84-85 [discussing claim no. 7].) Natividad does not allege such a breach of a public policy. She posits a tort duty of care in handling loan modification applications. Natividad also cites Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, 1304, which relied on the Lueras in holding that false representations of incomplete documentation of loan modification applications supported a UCL claim. We do not agree that Lueras supports recognition of such a claim.
Natividad also argues her UCL claim is supported by allegations of "dual tracking," i.e., taking action to foreclose on a property while the property owner's loan modification application is still under review. (See Jolley, supra, 213 Cal.App.4th at p. 904.) Specifically, Natividad alleges (1) a notice of trustee's sale was recorded in December 2011 when a November 2011 loan modification application was under consideration, and (2) in June 2012, BANA instructed the trustee to schedule a foreclosure sale for October 2012 even though a loan modification application was under consideration in June and July 2012. But these allegations predate the effective date of the HBOR, which imposed statutory constraints on dual tracking. (See Civ. Code, former § 2923.6, subd. (c), as enacted by Stats. 2012, ch. 86, § 7, ch. 87, § 7.) In any event, the allegations do not state an actionable HBOR claim because even liberally construing Natividad's complaint (i.e., inferring that BANA or its agents recorded notices of trustee's sales in 2011 and 2012), BANA corrected the alleged violations by rescinding the prerequisite notice of default in 2013. (See former § 2924.12, subds. (a)(2), (b)), as enacted by Stats. 2012, ch. 86, § 16, ch. 87, § 16 [authorizing relief unless violation was "corrected and remedied"].) Any subsequent foreclosure proceeding, therefore, did not result from the 2011 or 2012 dual tracking.
Natividad finally argues her dual tracking claim can be premised on the National Mortgage Settlement, not HBOR. However, an individual borrower has no standing to enforce that settlement (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 615-616), and she cites no authority allowing her to nevertheless premise a UCL claim on violations of the National Mortgage Settlement.
"On March 12, 2012, the United States Department of Justice and the attorneys general of forty-nine states and the District of Columbia filed a joint complaint against five mortgage servicers, including [BANA], alleging various foreclosure abuses. Shortly after the complaint was filed, the parties reached a settlement (the 'National Mortgage Settlement'), which was memorialized by a Consent Judgment . . . entered on April 4, 2012, by the United States District Court for the District of Columbia. The Consent Judgment sets forth servicing standards aimed at protecting homeowners. The mortgage servicers must comply with these standards." (Rehbein v. CitiMortgage, Inc. (E.D.Va. 2013) 937 F.Supp.2d 753, 760-761.)
III. DISPOSITION
The judgment is affirmed. Natividad shall bear BANA's costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.