Opinion
B322264
03-11-2024
IH HEEN BESS CHANG, Plaintiff and Appellant, v. AEGIS ASSET BACKED SECURITIES, LLC, Defendant and Respondent.
Ih Heen Bess Chang, in pro. per., for Plaintiff and Appellant. Wright, Finlay &Zak and Jonathan D. Fink for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 21PSCV00055, Thomas C. Falls, Judge. Affirmed.
Ih Heen Bess Chang, in pro. per., for Plaintiff and Appellant.
Wright, Finlay &Zak and Jonathan D. Fink for Defendant and Respondent.
EGERTON, J.
Plaintiff Ih Heen Bess Chang appeals a summary judgment in favor of defendant Aegis Asset Backed Securities, LLC (Aegis). The case stems from a secured loan Aegis made to plaintiff and a nonjudicial foreclosure sale after plaintiff defaulted on the debt. Consistent with the trial court's order granting summary judgment, our review of the record confirms the challenged foreclosure sale complied with state law. Plaintiff has not presented legal or factual grounds to set aside the judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff sued Aegis for wrongful foreclosure, promissory estoppel, fraud, negligent misrepresentation, and violation of Business and Professions Code section 17200. Aegis moved for summary judgment. Its supporting evidence established the following facts.
In January 2018, plaintiff executed a $50,000 promissory note in favor of Aegis, secured by a deed of trust on real property in Baldwin Park. Plaintiff failed to repay the loan by its February 2019 maturity date.
As of March 2019, Aegis's loan was second in position to a first deed of trust securing a $306,000 debt that plaintiff owed to a third party.
In March, June, and August 2019, the parties entered into three separate loan modification agreements, effectively extending the loan's maturity date to November 2019. Plaintiff failed to repay the loan by the extended maturity date.
In January 2020, Aegis recorded a notice of default and election to sell under the deed of trust. Plaintiff failed to cure the default. In April 2020, Aegis recorded a notice of trustee's sale, setting the sale date for May 7, 2020.
A week before the scheduled sale, plaintiff filed a Chapter 13 bankruptcy petition. Aegis moved for relief from the automatic stay. To resolve the motion, the parties entered into a stipulation for adequate protection that preserved the stay as long as plaintiff made regular monthly payments of $625 while the bankruptcy case was pending. On September 8, 2020, the bankruptcy court dismissed plaintiff's petition after she failed to obtain approval of a debt repayment plan.
Due to the pending bankruptcy case, the trustee sale officer announced and continued the trustee's sale several times between May and September 2020.
On September 15, 2020, the trustee sale officer held and completed the foreclosure sale. The trustee's deed upon sale reflects that Aegis purchased the property with a credit bid.
Plaintiff opposed the summary judgment motion. Her supporting declaration primarily focused on the stipulation for adequate protection that she and Aegis had executed during the bankruptcy proceeding. Plaintiff characterized the stipulation as an "agreement to forego [sic] any foreclosure" and claimed Aegis breached it while she continued to make payments of "at least $500.00 per month . . . through June 2022."
Aegis addressed these contentions in its reply brief. It emphasized that the stipulation contained standard provisions from the bankruptcy court's mandatory forms that stated it was "only binding during the pendency of [plaintiff's] bankruptcy case" and "payments accepted" under the stipulation were "without waiver or prejudice" to defendant's nonbankruptcy remedies, including foreclosure. Aegis also presented supplemental evidence showing the parties entered into a post-foreclosure agreement that allowed plaintiff to remain in possession and rent the property for $500 per month during the COVID-19 pandemic.
The trial court granted the summary judgment motion. The court found plaintiff's evidence was insufficient to create a triable issue of fact because the stipulation for adequate protection plainly stated it was effective only during the pendency of the bankruptcy case.
The court entered judgment in favor of Aegis. Plaintiff filed a timely notice of appeal.
DISCUSSION
"An appealed judgment or challenged ruling is presumed correct." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 (Bullock).) A judgment, therefore, will not be reversed unless error is affirmatively shown. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564 (Denham).) "An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority." (Bullock, at p. 685.)
"When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; accord Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 [A reviewing court need not consider an issue when the appellant "has presented no intelligible legal argument."].) "We are not bound to develop [an appellant's] arguments for [her]. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 830.) In addition, an appellant who fails to pinpoint evidence in the record indicating the existence of triable issues of fact will be deemed to have waived any claim that the lower court erred in granting summary judgment. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
"When an appellant decides to represent [herself] in propria persona, '[she] is entitled to the same, but no greater, consideration than other litigants and attorneys.'" (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.) A self-represented litigant "is held to the same restrictive procedural rules as an attorney." (Ibid.)
Plaintiff has failed to carry her affirmative burden to demonstrate reversible error. Her opening brief lacks a statement of facts, does not state the nature of the action in the lower court, does not discuss the five causes of action in her operative pleading, and does not discuss the standard of review. Plaintiff purports to raise three issues on appeal but fails to support any of them with a reasoned argument or citation to relevant legal authority.
First, plaintiff contends she presented evidence showing Aegis was a suspended corporation when it commenced and completed the foreclosure proceedings. The trial court rejected this evidence on the ground that plaintiff had not pled this theory as a basis for relief in her complaint. Plaintiff does not explain why this was error, nor does she address settled authority (cited by the trial court) holding "summary judgment cannot be denied on a ground not raised by the pleadings." (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663; accord Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 290.)
As a factual matter, Aegis notes plaintiff's purported evidence referred to Aegis Funding, Inc.-a different entity. As for Aegis's corporate status, the trial court granted Aegis's request to take judicial notice of official records showing the entity is and has been in good standing since its initial filing in March 2014.
Second, plaintiff reasserts her contention that the stipulation for adequate protection precluded Aegis from completing the foreclosure sale. However, as the trial court recognized, the stipulation expressly stated it was "binding only during the pendency of this bankruptcy case," and, if the bankruptcy stay "terminated," Aegis was authorized "to enforce its remedies under applicable nonbankruptcy law against the Property." Plaintiff ignores this provision in her appellate briefs.
Although plaintiff purported to attach the stipulation as an exhibit to her opening brief, she conspicuously omitted the page of the stipulation with this provision.
Finally, plaintiff contends she did not receive notice of the trustee's sale after the bankruptcy court dismissed her case. Civil Code section 2924g authorizes any number of postponements without a new notice of sale so long as the total period of time does not exceed 365 days and the trustee gives notice of the postponement "by public declaration . . . at the time and place last appointed for sale." (Civ. Code, § 2924g, subds. (c) &(d).) The trustee sale officer offered a declaration in support of Aegis's motion for summary judgment authenticating certificates of postponement for each of the postponed sales during plaintiff's bankruptcy case. That evidence proved that the postponements were announced in accordance with section 2924g and that the sale took place within the 365-day period. Plaintiff does not address this evidence or the governing law in her appellate briefs.
As plaintiff has failed to demonstrate reversible error, the judgment must be affirmed. (Denham, supra, 2 Cal.3d at p. 564; Bullock, supra, 159 Cal.App.4th at p. 685.)
DISPOSITION
The judgment is affirmed. Defendant Aegis Asset Backed Securities, LLC is entitled to costs.
We concur: EDMON, P. J. ADAMS, J.