Azzopardi
v.
Deutsche Bank Nat'l Tr. Co.

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOURNov 6, 2018
A153029 (Cal. Ct. App. Nov. 6, 2018)

A153029

11-06-2018

SAVIOUR AZZOPARDI, Plaintiff and Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, etc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSC17-01031)

I. INTRODUCTION

Saviour Azzopardi (plaintiff) filed this lawsuit against Deutsche Bank National Trust Company (Deutsche Bank) and others (collectively, defendants) to prevent a nonjudicial foreclosure of his property and to recover damages. After sustaining demurrers to plaintiff's original and amended complaint, the superior court entered judgment in favor of defendants. On appeal, plaintiff contends the facts alleged in his first amended complaint (FAC) state causes of action for declaratory relief, cancellation of instruments, and wrongful foreclosure. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The 2007 Loan

We draw facts about plaintiff's loan from exhibits attached to both versions of his complaint. We note that the record does not include a copy of the original promissory note or a 2009 loan modification agreement, although both documents are referenced in the exhibits.

In March 2007, plaintiff obtained a $948,000 loan (the 2007 Loan) from American Home Mortgage Acceptance, Inc. (AHM Acceptance), which was evidenced by a promissory note and secured by a Deed of Trust (DOT) encumbering plaintiff's property in Discovery Bay (the property). The DOT identified New Century Title as trustee, plaintiff as borrower and trustor, and AHM Acceptance as the lender. Mortgage Electronic Registration Systems, Inc. (MERS) was identified as a separate corporation and designated as the beneficiary of the DOT "acting solely as nominee for Lender and Lender's successors and assigns."

" 'MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of record for participating members through assignment of the members' interests to MERS. MERS is listed as the grantee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record.' " (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1151 (Gomes).)

The DOT stated, in part: "The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the [Property] [¶] . . . [¶] TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the 'Property.' Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument."

The DOT also stated that the "Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower."

On August 25, 2008, MERS executed a substitution of trustee under the DOT (the 2008 Substitution), which stated that AHMSI Default Services, Inc. was substituted as trustee in the place of the original trustee, New Century Title. The 2008 Substitution was recorded on October 27, 2008.

On August 27, 2008, MERS, as nominee for AHM Acceptance, executed an assignment of the DOT (the 2008 Assignment) to American Home Mortgage Servicing, Inc. (AHM Servicing). The 2008 Assignment stated that MERS conveyed to AHM Servicing the DOT, together with all rights, liens, and obligations therein. The 2008 Assignment was signed by Linda Green as Vice President of MERS and recorded on September 2, 2008.

On April 12, 2012, MERS, as nominee for AHM Acceptance and its successors and/or assigns executed another assignment of the DOT (the 2012 Assignment). The 2012 Assignment stated that MERS conveyed all beneficial interests in the DOT to Deutsche Bank as trustee for "American Home Mortgage Assets Trust 2007-5." The 2012 Assignment was recorded on May 17, 2012.

On May 11, 2012, AHM Servicing, acting as attorney in fact for Deutsche Bank, executed a substitution of trustee under the DOT (the 2012 Substitution). The 2012 Substitution stated that Deutsche Bank as the "present Beneficiary" under the DOT substituted Power Default Services, Inc. as trustee in the place and instead of the "original Trustee, or Successor Trustee . . . ." The 2012 Substitution was recorded on May 17, 2012.

On May 12, 2014, Power Default Services, Inc. issued a Notice of Default and Election to Sell Under Deed of Trust, which was recorded the next day (the 2014 Notice of Default). The 2014 Notice of Default stated that plaintiff's 2007 Loan was in arrears in the amount of $355,746.18.

In September 2014, Power Default Services, Inc. issued a Notice of Trustee's Sale, which was recorded on September 25, 2014 (the 2014 Notice of Sale). According to the 2014 Notice of Sale, plaintiff was in default under the terms of the DOT, as modified by a loan modification agreement that went into effect January 1, 2009. The estimated amount of the unpaid balance of the 2007 Loan and other charges was $1,235,663.71. A sale of the property was scheduled for October 24, 2014.

B. The Present Action

In May 2017, plaintiff filed this lawsuit against defendants seeking declaratory relief, cancellation of instruments, and damages for wrongful foreclosure. In his complaint, plaintiff did not allege any facts regarding the current status of the 2007 Loan or whether defendants took any action after the 2014 Notice of Sale was recorded to foreclose on the property. Instead, the ostensible purpose of plaintiff's pleading was to establish that Deutsche Bank does not have a beneficial interest in the DOT for one of two reasons.

First, plaintiff alleged that the 2007 Loan was sold to an unknown third party who had essentially abandoned it. In support of this claim, plaintiff alleged that the parent company of his original lender, AHM Acceptance, had filed for bankruptcy in August 2007 and that AHM Acceptance was "part of that Bankruptcy filing." Plaintiff further alleged he had been informed and believed that in 2009 his 2007 Loan was liquidated by a bankruptcy trustee and purchased by an unknown third party, and that unknown party had made no demand of Plaintiff nor expressed any intent to exercise any rights under the 2007 Loan. Plaintiff's second and more developed theory was that instruments executed by MERS in connection with the 2007 Loan, which plaintiff had attached to his complaint, were all void and, therefore, Deutsche Bank did not acquire a beneficial interest in the DOT and defendants lacked the authority to initiate a nonjudicial foreclosure of plaintiff's property.

In support of his cause of action for declaratory relief, plaintiff alleged that a controversy had arisen among the parties as to whether Deutsche Bank had acquired any rights under the DOT, and that he was entitled to a judicial declaration resolving this controversy so that he could ascertain his rights and duties under the 2007 Loan. Pursuant to his second cause of action for cancellation of instruments, plaintiff alleged that the instruments attached to his complaint appear to be valid on their face but they are all void and must be cancelled so that they cannot be used by defendants to cause plaintiff serious injury by foreclosing on his property. Finally, plaintiff alleged that defendants were liable for initiating a wrongful foreclosure in 2014 because their actions were not authorized by the terms of the DOT or the nonjudicial foreclosure statute (Civ. Code, § 2924 et seq.).

Defendants filed a demurrer on the ground that plaintiff failed to allege facts to state any cause of action against them. Defendants argued, among other things, that California law does not permit a preemptive lawsuit to prevent a nonjudicial foreclosure, plaintiff does not have standing to challenge the MERS assignments of the DOT, and plaintiff could not prove wrongful foreclosure when the property had not actually been sold. Plaintiff opposed the demurrer and filed a separate motion for a preliminary injunction, to prevent defendants from proceeding with a trustee's sale. The trial court sustained defendants' demurrer with leave to amend.

On September 14, 2017, plaintiff filed his FAC, which repeated the same basic allegations in his prior pleading with minor variations. Again, plaintiff did not allege any facts regarding his payment obligations or default status. Nor did he allege that a trustee's sale of his property had been scheduled or was pending. Plaintiff did reallege his theory that the 2007 Loan was liquidated and sold to an unknown third party. He also repeated his theory that Deutsche Bank does not have a beneficial interest in the DOT or any concomitant authority to foreclose on plaintiff's property. As support for this theory, plaintiff alleged the following facts and conclusions about the instruments attached to his FAC, many on "information and belief":

First, the 2008 Substitution naming AHM Default Services as trustee of the DOT was void because (1) the instrument described MERS as acting on behalf of AHM Servicing rather than on behalf of plaintiff's lender AHM Acceptance; (2) several months before this instrument was executed, the parent company of both AHM Acceptance and AHM Servicing filed for bankruptcy and took these affiliate entities with it; and (3) AHMSI Default Services was not a "valid" corporation, recognized under California law.

Second, the 2008 Assignment of the DOT by MERS on behalf of AHM Acceptance to AHM Servicing was void because (1) the instrument was not actually executed by MERS as it was signed by Linda Green "a well-known robo-signor [sic]"; (2) when the instrument was executed, MERS could no longer act on behalf of AHM Acceptance because its agency relationship terminated when AHM Acceptance went into bankruptcy; and (3) AHM Servicing, which was also in bankruptcy, lacked the capacity to accept the assignment.

Third, the 2012 Assignment of the DOT by MERS on behalf of AHM Acceptance, its successors and/or assigns to Deutsche Bank was void because when MERS previously executed the 2008 Assignment, it "voluntarily relinquished the nominee role as beneficiary" of the DOT and was no longer the nominee of the original lender, its successors, or assigns. Therefore, plaintiff alleged, since MERS had already assigned its beneficial interest in the DOT to AHM Servicing in 2008, it had no beneficial interest to assign to Deutsche Bank in 2012. By a parity of reasoning, plaintiff alleged that the 2012 Substitution of trustee executed on behalf of Deutsche Bank was also void; since Deutsche Bank did not acquire a beneficial interest in the DOT, it had no authority to substitute Power Default Services as the new trustee.

Finally, plaintiff alleged that the 2014 Notice of Default and Notice of Trustee's Sale were both void because, once again, Deutsche Bank held no beneficial interest in the DOT and thus lacked authority to direct Power Default Services or any other agent to execute or record these notices.

On October 2, 2017, defendants filed a demurrer to the FAC. A few days later, on October 4, 2017, the trial court denied plaintiff's pending motion for a preliminary injunction, finding that plaintiff had failed to demonstrate a reasonable likelihood of prevailing on the merits of his case. The following month, on November 17, 2017, the trial court sustained the demurrer to the FAC without leave to amend. Judgment was entered that same day.

III. DISCUSSION

"We review an order sustaining a demurrer de novo to determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.]" (Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 303-304 (Rufini).) We "accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed. [Citations.]" (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) We also consider "evidentiary facts found in recitals of exhibits attached to a complaint. [Citation.]" (Satten v. Webb (2002) 99 Cal.App.4th 365, 375; see also SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.)

A. Declaratory Relief

Section 1060 of the Code of Civil Procedure states that declaratory relief may be available to "[a]ny person interested under a written instrument . . . who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . in cases of actual controversy relating to the legal rights and duties of the respective parties . . . ." Thus, "[a] complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court. [Citations.]" (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728; see Graham v. Bank of America, NA. (2014) 226 Cal.App.4th 594, 615.)

On appeal, plaintiff argues that he alleged facts in the FAC to demonstrate that there is an actual controversy between the parties regarding the validity of the 2012 Assignment and whether or not it conveyed to Deutsche Bank a beneficial interest in the DOT. The problem with this claim is that plaintiff does not have standing to force Deutsche Bank to come into court and prove its beneficial interest in the DOT is valid. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814-815 (Saterbak).)

In his FAC, plaintiff also alleged that there is an actual controversy as to whether the 2007 Loan was liquidated as part of a bankruptcy proceeding and sold to an unknown third party. Plaintiff does not defend this theory on appeal and, therefore, we deem it waived.

" 'Standing is a threshold issue, because without it no justiciable controversy exists.' [Citation.] 'Standing goes to the existence of a cause of action . . . .' [Citation.] Pursuant to Code of Civil Procedure section 367,'[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.' " (Saterbak, supra, 245 Cal.App.4th at p. 813.)

In Saterbak, a defaulting borrower filed a complaint for declaratory relief and for cancelation of an assignment of the deed of trust securing her loan. (Saterbak, supra, 245 Cal.App.4th at p. 812.) She alleged the assignment by MERS was defective because it was part of an untimely securitization process and was executed by a robo-signer. The trial court sustained a demurrer to the plaintiff's first amended complaint without leave to amend, which was affirmed on appeal. (Ibid.) The Saterbak court held that the plaintiff failed to allege a justiciable controversy because she did not have standing to challenge the validity of the MERS assignment: "California courts do not allow such preemptive suits because they 'would result in the impermissible interjection of the courts into a nonjudicial scheme enacted by the California Legislature.' [Citations.]" (Id. at p. 814.) Following pertinent precedent, the Saterbak court confirmed that a debtor may not use the court process to impose an " 'additional requirement that MERS demonstrate in court that it is authorized to initiate a foreclosure . . . . [S]uch a requirement would be inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy.' [Citation.]" (Id. at pp. 814-815.)

As in Saterbak, plaintiff's FAC seeks to invalidate an assignment of a DOT preemptively, to prevent defendants from utilizing the nonjudicial foreclosure procedure to remedy plaintiff's default. Under California law, plaintiff does not have standing to pursue this action. (Saterbak, supra, 245 Cal.App.4th at pp. 814-816.) Arguing otherwise, plaintiff relies on Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova). In Yvanova, the California Supreme Court held that a borrower has standing to sue for wrongful foreclosure when an alleged defect in an assignment of a deed of trust renders the assignment void rather than merely voidable. (Id. at p. 923.) However, as the Saterbak court explained, "Yvanova's ruling is expressly limited to the post-foreclosure context." (Saterbak, at p. 815, citing Yvanova, at pp. 934-935.) Furthermore, even in that situation, "Yvanova recognizes borrower standing only where the defect in the assignment renders the assignment void, rather than voidable." (Saterbak, at p. 815, italics omitted, citing, Yvanova, at pp. 942-943.)

Plaintiff acknowledges that Yvanova was "expressly limited to borrowers who had their property sold at a foreclosure sale," but he contends the substantive holding of that case—recognizing that a debtor should be allowed to challenge an assignment that is void and not merely voidable—can and should be extended to pre-foreclosure cases. Pertinent authority decided after Yvanova does not support this argument. (See Saterbak, supra, 245 Cal.App.4th at p. 815; Lucioni v. Bank of America N.A. (2016) 3 Cal.App.5th 150, 161.) Furthermore, the present appeal is not the proper forum to consider this issue because plaintiff did not allege facts that would establish the 2012 Assignment of the DOT to Deutsche Bank was void rather than merely voidable.

Plaintiff alleged that the 2012 Assignment is void because "MERS ceased to be the beneficiary or nominee beneficiary of the DOT" when it executed the 2008 Assignment of DOT. According to the FAC allegations, "[a]t the time MERS executed [the 2008 Assignment], MERS voluntarily relinquished the nominee role as beneficiary of the DOT and was no longer the nominee of the original lender, its successors, or assigns." As a consequence, plaintiff alleged, the 2012 Assignment was void "because at the time MERS executed [it], MERS no longer held any beneficial interest in the DOT and therefore had no interest to assign in the assignment to Deutsche Bank."

This pleaded theory strings together several legal conclusions; it does not allege facts that if proven by the evidence would establish that the 2012 Assignment was void from its inception. As noted at the outset of our discussion, to withstand a demurrer, the complaint must set forth the essential facts to support a claim. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) While most claims can be supported by ultimate rather than evidentiary facts, legal conclusions are insufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550-551 & fn. 5.) By the same token, the court "assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law. [Citation.]" (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)

Plaintiff contends that he did state the essential facts by alleging that MERS "had no interest to assign because it previously assigned its interest" when it executed the 2008 Assignment. But this conclusory allegation is inconsistent with the DOT itself, which was incorporated into plaintiff's pleading. (See SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83 ["If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits."].) As discussed in our factual summary, the DOT conferred broad authority on MERS as the nominal beneficiary to act on behalf of the original lender and the lender's successors and assigns, and it also expressly stated that the promissory note and DOT or a partial interest therein could be sold more than once without notice to the borrower. Thus, the alleged fact that MERS made a previous assignment of the DOT is not sufficient to prove that MERS lacked authority to make the subsequent assignment to Deutsche Bank.

Plaintiff acknowledges that the practice of using MERS as a nominal beneficiary "has withstood judicial scrutiny." (See e.g., Gomes, supra, 192 Cal.App.4th at p. 1157; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 83, disapproved on other ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13; Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1505, disapproved on other ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) But he contends that he is not attacking MERS's general authority as nominal beneficiary. Instead, plaintiff argues that he has alleged that MERS voluntarily relinquished its role as nominal beneficiary when it executed the 2008 Assignment of the DOT. We disagree; the FAC makes this claim but fails to allege facts to prove it.

Furthermore, plaintiff's exhibits undermine his theory. The 2008 Assignment of the DOT stated that MERS was assigning to AHM Servicing the DOT securing plaintiff's note "together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described . . . ." In other words, this instrument explicitly did not alter the terms of the DOT, which included terms designating MERS as the nominee of the Lender and the Lender's successors and assigns, and which authorized MERS to assign the DOT more than once. By contrast, the 2012 Assignment contained materially different language, which stated that MERS "hereby grants, assigns, and transfers" to Deutsche Bank "all beneficial interest under" the DOT." Thus, this evidence indicates that MERS relinquished its beneficial interest in the DOT when it made the 2012 Assignment to Deutsche Bank, not when it made the 2008 Assignment to AHM Servicing.

Ignoring these facts, plaintiff takes the position that the fact that the 2008 Assignment was recorded is definitive proof that MERS voluntarily relinquished its role as nominal beneficiary at that time. This theory is based on plaintiff's perception that the primary (or only) function of MERS is to facilitate the transfer of ownership interests and servicing rights in mortgage loans among its participating members by making it unnecessary to record those transactions in the public record. Therefore, plaintiff posits, the fact the 2008 Assignment of the DOT was recorded necessarily shows that (1) AHM Servicing was not a participating member of MERS, (2) the 2008 Assignment transferred plaintiff's loan "outside the MERS system," and at that point (3) MERS voluntarily relinquished its authority as nominal beneficiary of the DOT.

We are not persuaded by plaintiff's logic. The FAC did not allege that AHM Servicing was a non-member of MERS, or make any allegation about the relationship between those entities, neither of which has been named as a party in this action. Plaintiff cites no authority for his assumption that the fact that the 2008 Assignment was recorded compels the conclusion that the loan was transferred outside the MERS system. In any event, even if plaintiff could prove that the loan was transferred outside the MERS system, that fact would not establish that MERS voluntarily relinquished the nominal beneficial interest conferred on MERS in the DOT. Nothing in that instrument limited MERS's authority as the nominal beneficiary to members of the MERS organization.

Saterbak, supra, 245 Cal.App.4th 808, applies squarely to the present case. California law does not authorize plaintiff's preemptive action to preclude Deutsche Bank from proceeding with a nonjudicial foreclosure sale at some future time on the ground that there are potential defects in the chain of title of the DOT. Thus, plaintiff has failed to allege there is an actual controversy entitling him to declaratory relief.

B. Cancellation of Instruments

The right to secure cancellation of an instrument derives from Civil Code section 3412, which states: "A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled." "Cancellation of an instrument is essentially a request for rescission of the instrument. [Citation.] The effect of a decree cancelling an instrument is to place the parties where they were before the instrument was made, as if it had never been made. [Citation.]" (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523.)

Thus, to plead a right to cancellation under Civil Code section 3412, a plaintiff must allege facts demonstrating that the instrument or instruments in question were "void or voidable" against him and would cause him "serious injury" if not canceled. (Saterbak, supra, 245 Cal.App.4th at pp. 818-819.) Further, plaintiff must allege specific facts, "not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid. [Citations.]" (Ephraim v. Metropolitan Trust Co. (1946) 28 Cal.2d 824, 833-834.)

Plaintiff contends that he did plead a right to cancellation of the 2012 Assignment of the DOT to Deutsche Bank. We disagree. As we have already explained, plaintiff lacks standing to bring a preemptive action challenging the validity of any assignment of the DOT, and he did not allege facts to support his legal conclusion that the 2012 Assignment is void rather than merely voidable.

The FAC sought to cancel other instruments, including the 2008 Substitution and 2008 Assignment, both of which were executed between parties who are not defendants in this action. Plaintiff fails to articulate any ground for challenging the trial court's ruling with respect to those other instruments. Therefore, we conclude the demurrer was properly sustained to the extent plaintiff attempted to state a claim for cancellation of the 2008 Substitution and 2008 Assignment.

Moreover, plaintiff has not alleged facts to show that he will suffer a "serious injury" if the 2012 Assignment is not cancelled. Plaintiff's rights and obligations derive from the promissory note and DOT, not from the 2012 Assignment to which he was not a party. (Saterbak, supra, 245 Cal.App.4th at pp. 818-819.) Like the debtor in Saterbak, plaintiff does not deny that he defaulted or that his debt remains in arrears and, consequently, he "cannot demonstrate how the allegedly invalid assignment could 'cause serious injury' within the meaning of [Civil Code] section 3412 if left outstanding. [Citation.]" (Id. at p. 819, italics omitted.)

C. Wrongful Foreclosure

The elements of a cause of action for wrongful foreclosure are " '(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.' [Citation.]" (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.)

The FAC allegations are insufficient to prove any of these elements; plaintiff did not allege that there was a foreclosure sale of his property, that he tendered the amount of his debt or was excused from doing so, or that he has suffered actual harm or prejudice.

On appeal, plaintiff concedes that no sale of his property occurred, and that his wrongful foreclosure claim may not have been "properly titled" in his FAC. But he insists that he stated a valid claim because there is "a legal and factual basis to enjoin the pending sale." However, the FAC did not allege facts to establish that there is a "pending sale." Furthermore, plaintiff cites no legal authority for enjoining defendants from invoking the nonjudicial foreclosure remedy at some future time.

D. Remaining Issues

Plaintiff raises two additional issues. First, under a separate heading in his appellate brief, plaintiff posits that if the FAC can be amended "to state additional facts which cure any deficiencies which may exist, the trial court erred in sustaining the demurrer without leave to amend."

"When the court sustains a demurrer without leave to amend, ' "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." [Citations.]' [Citation.]" (Rufini, supra, 227 Cal.App.4th at p. 304.) Plaintiff's observation that he was entitled to amend if there was some way to cure defects in his pleading proves nothing. Thus, he has not carried his burden as the appellant to show that the trial court abused its discretion by denying leave to amend.

The second additional issue plaintiff has raised on appeal pertains to the trial court's separate order denying his request for a preliminary injunction. Plaintiff contends that the trial court abused its discretion by denying that request. (Citing e.g., 14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1407.) However, plaintiff also expressly "concedes that the preliminary injunction issue is moot unless there is a reversal of the trial court's judgment." In light of this concession we do not address the matter further.

IV. DISPOSITION

The judgment is affirmed.

/s/_________


LEE, J. We concur: /s/_________
TUCHER, Acting P. J. /s/_________
REARDON, J.

Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------