Opinion
G053211
06-15-2018
CONNIE CAMPOS, Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent.
Rodriguez Law Group and Patricia Rodriguez for Plaintiff and Appellant. Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, Robin C. Campbell and Robert A. Bailey for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00699276) OPINION Appeal from a judgment of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed. Rodriguez Law Group and Patricia Rodriguez for Plaintiff and Appellant. Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, Robin C. Campbell and Robert A. Bailey for Defendant and Respondent.
INTRODUCTION
Appellant Connie Campos has presented us with an unusual situation on appeal. Campos sued Wells Fargo Bank, N.A., for wrongful foreclosure and for violations of various Civil Code statutes relating to loan modification. The trial court sustained demurrers to two amended complaints with leave to amend. She finally managed to state causes of action in the third amended complaint, when the court overruled demurrers to four alleged Civil Code violations.
Wells Fargo then moved for summary judgment on the four surviving causes of action. The court granted the motion and entered judgment for Wells Fargo. Campos appealed from this judgment. So far, so good.
Campos' opening brief, however, entirely ignores the summary judgment. Instead, she focuses her attention on the orders pertaining to the demurrers to the second and third amended complaints, asserting that the trial court "abused its discretion" by sustaining these demurrers and by refusing to grant leave to amend.
Although Campos complains on appeal that the court sustained Wells Fargo's demurrers to the causes of action in the third amended complaint that formed the basis of the summary judgment motion, that is not what happened. The court, in fact, overruled these demurrers, thereby forcing Wells Fargo to move - successfully - for summary judgment. There is, however, not a word of argument or authority dealing with summary judgment in the opening brief. And Campos did not file a reply brief.
Although we review a summary judgment de novo, it is also true that the appellant bears the burden of pointing out error and that failing to raise an issue or provide argument and authority to support it forfeits the issue. As Campos has not given us a whisper of an argument about the judgment from which she is appealing - the one following the trial court's granting a motion for summary judgment - let alone explained to us why it was erroneously entered, we must affirm the judgment. The other issues she has identified on appeal are equally lacking in merit.
FACTS
Campos borrowed $525,000 from World Savings, FSB, in February 2007, secured by her condominium in Orange. The trustee of the deed of trust was Golden West Savings Association Service Co. In December 2007, World Savings changed its name to Wachovia Mortgage, FSB. In November 2009, Wachovia merged with Wells Fargo.
In July 2009, before the merger, Wachovia modified Campos' loan. It forgave all outstanding interest through the end of July, reduced the balance of the loan by over $100,000, and extended the term of the loan from 30 years to 40 years from the date of modification to 2049, an extra 12 years.
Campos fell behind on her payments for the modified loan, and as of May 2011, she had stopped making payments altogether. She asked Wells Fargo for another loan modification. Wells Fargo determined she did not qualify for one, and it denied her request in January 2012.
NDEx West, LLC, as agent for the beneficiary of the deed of trust, recorded a notice of default and election to sell in June 2012 and scheduled a sale for October. By then Campos owed more than $41,000.
Wells Fargo's substitution of NDEx for Golden West Savings Association Service Co. as trustee of the Campos deed of trust was recorded on August 6, 2012.
Although she had been denied in January 2012, Campos applied again for a loan modification in July. Once again she was told that she did not qualify.
Campos contacted Wells Fargo yet again, this time through counsel, for a loan modification. In November 2013, she was turned down again, because she had "excessive financial obligations." Another notice of trustee's sale was recorded in December 2013. A new sale date was scheduled for January 2014.
Campos sued Wells Fargo and NDEx and filed a lis pendens on the date scheduled for the trustee's sale. Wells Fargo demurred, but before the demurrer could be heard, Campos filed a first amended complaint. Wells Fargo demurred again, and the trial court sustained the demurrer to all causes of action with leave to amend.
The court ordered NDEx dismissed from the first amended complaint on May 23, 2014.
Campos filed a second amended complaint, which largely duplicated the first amended complaint. Like the first amended complaint, it included a cause of action styled "wrongful foreclosure violation of Civil Code of Procedure [sic] § 2924(a)(6)." The only change in the second amended complaint was the substitution of alleged violations of seven Civil Code sections, in place of a single Civil Code section.
Wells Fargo demurred again. The trial court sustained Wells Fargo's demurrers to two causes of action in the second amended complaint without leave to amend, noting that they were essentially unchanged from the first amended complaint. The court also sustained demurrers to the remaining two causes of action, but gave Campos leave to amend them. The demurrer to the cause of action for wrongful foreclosure was sustained without leave to amend.
The third amended complaint consisted of six causes of action. Five causes of action were based on violations of Civil Code sections 2923.55, 2923.6, 2923.7, 2924.10, and 2924.12. The sixth cause of action alleged breach of the covenant of good faith and fair dealing.
All further statutory references are to the Civil Code unless otherwise indicated.
After a hearing on Wells Fargo's demurrers to the third amended complaint, the trial court sustained them as to two causes of action without leave to amend. These were violation of section 2923.55 and breach of the covenant of good faith and fair dealing. The court overruled the demurrers as to the remaining four Civil Code causes of action.
Wells Fargo filed a summary judgment motion on the four remaining causes of action, violations of sections 2923.6, 2923.7, 2924.10, and 2924.12. The court granted summary judgment on these causes of action on July 16, 2015, and judgment was entered against Campos on August 28, 2015. Campos appealed from a "[j]udgment after an order granting a summary judgment motion," giving the date of the judgment as August 28, 2015.
DISCUSSION
Campos has identified four main issues on appeal. She objects to the dismissal of three of her Civil Code causes of action: violation of sections 2923.6, subdivision (c), 2923.7, subdivisions (a) and (b), and 2924.10, subdivision (a). She did not include as an issue on appeal the order against her cause of action for violation of section 2924.12. She also asserts that the court erroneously dismissed her wrongful foreclosure cause of action when it sustained Wells Fargo's demurrer to the second amended complaint and improperly took judicial notice of certain documents relating to the foreclosure proceedings. Finally she contends the court should have allowed her to amend yet again. I. Sections 2923.6 , 2923.7, and 2924.10
Section 2923.6, subdivision (c), provides: "If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs: [¶] (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired. [¶] (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. [¶] (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification."
Section 2923.7, subdivision (a) and (b), provide: "(a) Upon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact. [¶] (b) The single point of contact shall be responsible for doing all of the following: [¶] (1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options. [¶] (2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application. [¶] (3) Having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative. [¶] (4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any. [¶] (5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary."
Section 2924.10, subdivision (a), provides: "When a borrower submits a complete first lien modification application or any document in connection with a first lien modification application, the mortgage servicer shall provide written acknowledgment of the receipt of the documentation within five business days of receipt. In its initial acknowledgment of receipt of the loan modification application, the mortgage servicer shall include the following information: [¶] (1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consider an offer of a loan modification or other foreclosure prevention alternative. [¶] (2) Any deadlines, including deadlines to submit missing documentation, that would affect the processing of a first lien loan modification application. [¶] (3) Any expiration dates for submitted documents. [¶] (4) Any deficiency in the borrower's first lien loan modification application."
Campos' brief on these code sections reflects a profound misunderstanding of what happened in the trial court. The causes of action based on these code sections were not "dismissed," as Campos asserts. The trial court granted summary judgment as to each of them.
Although Campos mentioned Wells Fargo's summary judgment motion in her statement of facts, she completely ignored it in the argument section of her brief. She structured this appeal as one from a judgment of dismissal after sustaining a demurrer without leave to amend, and her argument as to each code section asserted that she alleged sufficient facts to state a cause of action. But the trial court overruled Wells Fargo's demurrers to the third amended complaint as to each of the causes of action based on these code sections. It ruled in Campos' favor, that she had stated causes of action. She was not "aggrieved" by this ruling. (Code Civ. Proc., § 902.) Her "grievance" is that the court granted summary judgment as to these three causes of action.
Campos has confused summary judgment and demurrer. They are two very different procedures. When we review a dismissal following a sustained demurrer, we take all well pleaded factual allegations as true. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495-496.) The plaintiff need not present evidence to support them.
By contrast, a summary judgment motion is designed to determine whether a triable issue of material fact exists. Whether Campos did or could successfully allege a cause of action is no longer relevant. Summary judgment "provide[s] courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, italics added.)
When a defendant moves for summary judgment, "[a] defendant. . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) If the plaintiff is unable to do this, summary judgment is properly granted. (Id., subd. (c); see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)
We review an appeal arising from an order granting summary judgment de novo. We resolve doubts as to the propriety of granting the motion in the plaintiff's favor. (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 415.) But although Wells Fargo had the burden of proving its right to summary judgment in the trial court, Campos has the burden on appeal of showing error. (See Frank & Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) We also require the appellant to support accusations of trial court error with factual analysis, supported by citation to the record and to appropriate authority. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
Wells Fargo presented admissible evidence that it had complied with the mandates of each code section. It had informed Campos in writing that she did not qualify for a loan modification, and the appeal period for that decision had expired before it recorded a notice of default. (§ 2923.6, subd. (c)(1).) It had furnished her with a single point of contact during the loan modification process. (§ 2923.7.) It had timely supplied her with the information required in an acknowledgement of receipt of a loan modification application. (§ 2924.10, subd. (a).) The burden then shifted to Campos to provide the court with admissible evidence showing the existence of a triable issue of fact as to these causes of action.
According to the trial court, Campos failed to do so. On appeal, she does not point us to a single piece of admissible evidence submitted in opposition to the summary judgment motion that would have created a triable issue of fact. Indeed, her opening brief argues each of these Civil Code sections as if the court had sustained Wells Fargo's demurrers as to each of them and dismissed them without leave to amend. She has utterly failed to show how the trial court erred in granting Wells Fargo's motion for summary judgment on these three causes of action of the third amended complaint.
II. Judicial Notice
Campos claims the trial court improperly noticed a notice of default, notice of trustee sale and "other foreclosure documents." She asserts the trial court improperly took judicial notice of the truth of these documents, not merely their existence.
Nothing in the record indicates the trial court took judicial notice of the truth of the notice of default or other foreclosure documents. In fact, nothing in the record indicates the trial court took judicial notice of anything when it granted Wells Fargo's motion for summary judgment.
The only instance in the record of the trial court's granting a request for judicial notice is in connection with the ruling on Wells Fargo's demurrer to the third amended complaint. Wells Fargo asked the court to take judicial notice of the documents recording the name change from World Savings to Wachovia and the merger of Wachovia and Wells Fargo. These documents established the chain of title to Campos' note and deed of trust. The court was therefore able to determine that Wells Fargo was the correct lender - apparently to Campos' satisfaction: when she later opposed the summary judgment motion, Campos labeled as "undisputed" the statement "Wells Fargo . . . is the successor in interest to Wachovia . . . and World Savings. . . ."
Campos' opening brief does not assign any error to the court's taking judicial notice of the chain-of-title documents. Moreover, nothing in the record indicates that she opposed Wells Fargo's request at the time it was made.
Wells Fargo also asked the court to take judicial notice of the June 2012 notice of default and the notices of trustee's sale of September 2012, December 2013, and September 2014 in connection with the demurrer to the third amended complaint. In opposing the demurrer, Campos did not oppose this portion of the request. In fact, she repeatedly referred to these documents to make her arguments that the demurrers should be overruled. Now, however, she asserts that the court took judicial notice of the truth of statements made in the foreclosure documents, without, it must be noted, giving any examples of the court's improper use of the documents.
The only references to the foreclosure documents in the court's minute order are to the dates upon which the notices of trustee's sale were recorded.
Nothing in the record indicates that the court took judicial notice of any documents in connection with the order granting Wells Fargo's motion for summary judgment. There is, therefore, no such issue for us to review.
III. Wrongful Foreclosure
Campos asserts that the trial court improperly sustained Wells Fargo's demurrer to the cause of action in the second amended complaint for wrongful foreclosure based on section 2924, subdivision (a)(6). Section 2924, subdivision (a)(6), provides: "No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. No agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest."
In the second amended complaint, filed in September 2014, Campos alleged that World Savings was her original lender and Wells Fargo was her current lender and mortgage servicer. She identified NDEx (which she continued to name as a defendant, even though it had been dismissed the previous May) as "the purported foreclosure mortgage trustee." She alleged that she borrowed money in 2007 pursuant to a note and deed of trust. She also alleged that NDEx recorded a Notice of Default and Election to Sell under the Deed of Trust and gave the recording number of this document as 2012000355727. Wells Fargo later provided a copy of this document; it was recorded on June 25, 2012. These allegations were included in the preliminary allegations, which preceded the recitations for the individual causes of action.
The "First Cause of Action: Wrongful Foreclosure Violation of Civil Code of Procedure [sic] § 2924(a)(6)" consists mostly of vague generalities, conclusions, misrepresentations of statutory language, and other remarks generally unsuited to a complaint, which is supposed to be a "statement of the facts constituting a cause of action, in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1).) Factual allegations pertaining to Campos' case are scarce in the first cause of action. The only ones having anything to do with her particular foreclosure are (1) "In this instance, the original lender is [World Savings] the foreclosing entity is NDX [sic], who is acting on behalf of [Wells Fargo]" and (2) "The foreclosing entity NDX is not acting on behalf of the original beneficiary."
There are a number of reasons why the first cause of action fails to state a cause of action. First, section 2924, subdivision (a)(6), was part of Senate Bill 900, which did not become effective until January 1, 2013. Therefore a notice of default filed in September 2012 could not have violated this subdivision. Next, the only factual allegation of wrongdoing in the first cause of action is stated against NDEx. As of September 2014, NDEx was no longer a party to the litigation, having been dismissed in May 2014.
Most important, however, is the fact that Wells Fargo satisfactorily showed, even as far back as the demurrer to the first amended complaint, that it was "the distant but legitimate successor in interest to the original lender." Wells Fargo was, therefore, the "holder of the beneficial interest" under the deed of trust and entitled to "record or cause a notice of default to be recorded or otherwise initiate the foreclosure process[.]" (§ 2924, subd. (a)(6).)
On appeal, Campos' sole argument as to the ruling on her first cause of action is that "the named Defendants have failed to produce any Assignment of any documentation evidencing a transfer of interest in the Plaintiff's Deed of Trust to any of the named Defendants." "[N]one of the named Defendants were the original beneficiaries per the original deed of trust and none of the named Defendants received any valid actual interest per any legitimate transfer via assignment."
The assignment of a deed of trust need not be recorded. (Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 744, fn. 2.)
Campos' argument ignores the fact that Wells Fargo is not claiming to be the holder of a beneficial interest in her deed of trust by means of an assignment. Instead, Wells Fargo was, as the trial court observed, the successor in interest to the original lender, World Savings, through its merger with Wachovia. Campos never challenged this chain of title, and, in fact, she admitted that "Wells Fargo Bank . . . is the successor in interest to Wachovia . . . and World Savings . . . ." This admission is consistent with the allegation of the second amended complaint that Wells Fargo was her current lender.
See, e.g., Corporations Code section 1107, subdivision (a), which provides: "Upon merger pursuant to this chapter the separate existence of the disappearing corporations ceases and the surviving corporation shall succeed, without other transfer, to all the rights and property of each of the disappearing corporations and shall be subject to all the debts and liabilities of each in the same manner as if the surviving corporation had itself incurred them." --------
Because Wells Fargo established that it was the holder of the beneficial interest in Campos' deed of trust, it could not violate section 2924, subdivision (a)(6), by recording a notice of default or otherwise initiating the foreclosure process. The demurrer to this cause of action was properly sustained.
IV. Leave to Amend
The trial court sustained without leave to amend Wells Fargo's demurrers to the wrongful foreclosure and unfair business practices causes of action in the second amended complaint and to two causes of action alleged in the third amended complaint: violation of section 2923.55 and breach of the implied covenant of good faith and fair dealing. On appeal, Campos claims that she should have been allowed to amend.
We review the refusal of the trial court to permit amendment after the sustaining of a demurrer for abuse of discretion. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 110.) The appellant must explain what the proposed amendments are and how they would cure the initial pleading deficiencies. (Ibid.)
Campos does not identify the cause(s) of action that she should have been allowed to reallege. More importantly, Campos does not explain how she might have corrected the flaws in her pleading to state a cause of action. It is the appellant's burden to explain on appeal how the problems could have been remedies. Campos does not acknowledge this burden, let alone begin to carry it.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.