Opinion
A147840
11-17-2017
SERVIO T. GOMEZ and MARTHA E. GOMEZ, Plaintiffs and Appellants, v. WELLS FARGO BANK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C15-00923)
The trial court sustained without leave to amend a demurrer filed by respondents Wells Fargo Bank, N.A. (Wells Fargo) et al. (respondents) to a complaint filed by appellants Servio T. Gomez and Martha E. Gomez (appellants), and dismissed appellants' action. We affirm.
In May 2015, appellants filed the present action against respondents, alleging causes of action for wrongful foreclosure; violation of a statute requiring a recorded substitution of trustees (Civ. Code § 2934a, subd. (a)(1)(A)); violation of the unfair competition law (Bus. & Prof. Code § 17200); fraud; and unjust enrichment. The claims arose from a June 2011 trustee's sale of real property appellants owned in San Pablo. Appellants alleged Wells Fargo was "a complete stranger . . . to the original loan transaction on July 10, 2006 between the Plaintiffs" and World Savings Bank, FSB (World Savings). They further alleged that World Savings "sold substantially all its originated residential mortgage loans in the secondary market for securitization into mortgage backed securities trusts." But, appellants alleged, World Savings failed to properly assign and transfer their loan to the trust into which it had purportedly been included. Appellants alleged this was a "botched securitization" that caused a "break in the chain of title — with the present beneficiary and true debt-owner unassigned, undocumented, and therefore UNKNOWN to date." Wells Fargo allegedly lacked legal authority to initiate the 2011 foreclosure because of "lack of any evidence of [the bank's] possession or ownership of either the Note or the Deed of Trust."
In August 2015, respondents filed a demurrer to the complaint. Among other things, they argued that appellants' causes of action were preempted by the federal Home Owners' Loan Act (HOLA) (12 U.S.C. § 1461 et seq.), and that Wells Fargo had "authority to enforce the note and deed of trust," as the corporate successor to World Savings. In January 2016, the trial court sustained respondent's demurrer without leave to amend. The court concluded all of appellant's claims other than the unfair competition claim were barred by a three-year statute of limitations. As to appellant's remaining unfair competition claim, the court concluded it was preempted by HOLA. The court also granted respondents' request for judicial notice of documents showing that World Savings had changed its name to Wachovia Mortgage, FSB (Wachovia) in 2007, and Wachovia had merged with Wells Fargo in 2009. The court entered a judgment of dismissal.
"Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the well-pleaded allegations in [appellants' complaint]. ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' " (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
The trial court's judgment is presumed correct, and appellants have the burden of demonstrating error. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Meeting this burden requires the presentation of reasoned argument with citations to supporting authorities; it is not this court's responsibility to conduct legal research in search of authority to support appellants' claims on appeal. (Ibid.; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11; Cal. Rules of Court, rule 8.204(a)(1)(B); see also Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) Appellants' failure to meet their burden forfeits their claims on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793 [if a party fails to provide legal argument and citations to authority on a point, " 'the court may treat it as waived, and pass it without consideration' "]; accord People v. Bryant (2014) 60 Cal.4th 335, 363-364.) We also note that appellants failed to file a reply brief addressing the arguments in respondents' brief on appeal. While this is not an admission that the appeal lacks merit (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1218, fn. 4), we will not endeavor to respond to respondents' arguments on appellants' behalf.
The trial court concluded that the three-year statute of limitations under Code of Civil Procedure section 338 applies to four of appellants' causes of action (wrongful foreclosure, violation of the statute requiring a recorded substitution of trustees, fraud, and unjust enrichment) and that "[t]he issuance and recordation of . . . foreclosure documents is the basis for each" of the causes of action. Because the last of the documents (the trustee's deed upon sale) had been recorded in July 2011, the court concluded the statute of limitations expired at the latest in July 2014—prior to the filing of appellants' suit in May 2015. In their opening (and only) brief on appeal, appellants do not challenge the trial court's conclusion that those four causes of action are barred by the statute of limitations. Accordingly, any such contention has been forfeited.
Appellants' remaining claim is for unfair competition (Bus. & Prof. Code § 17200), which has a four-year statute of limitations (Bus. & Prof. Code § 17208). We need not address whether the trial court was correct in concluding HOLA preempts the claim, because appellants have failed to demonstrate " ' " 'any acts or practices which are unlawful, or unfair, or fraudulent,' " ' " as required to support the claim. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1501 (italics omitted).) In their complaint, appellants grounded their unfair competition claim on the same "botched securitization" theory underlying their other claims. However, appellants fail to respond to respondents' argument on appeal that the judicially noticed documents "clearly showed that Wells Fargo was the successor to [appellants'] loan by virtue of corporate name changes and a merger in 2007 and 2009. This corporate succession obviated any purported need for a recorded assignment of their defaulted loan from World Savings to Wachovia, or from Wachovia to Wells Fargo, in order for Wells Fargo to foreclose on the property securing the loan." Appellants also fail to respond to respondents' argument that, if there had been a "botched securitization," then the loan remained with their original lender, World Savings, to which Wells Fargo is the corporate successor. And appellants on appeal identify no other basis for their unfair competition claim. Accordingly, we treat appellants' challenge to the trial court's ruling sustaining the demurrer to the unfair competition claim as forfeited. (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them."].)
In arguing their claims are not preempted by HOLA, appellants cite Penermon v. Wells Fargo Bank, N.A. (N.D.Cal. 2014) 47 F.Supp.3d 982, which also involved claims against Wells Fargo relating to a loan originated by Wachovia. Penermon "adopt[ed] the minority view of HOLA preemption and [found] that the court must consider 'whether the alleged violations took place when the banking entity was covered by HOLA.' [Citation.] . . . . So, while Wells Fargo does inherit the liabilities and possible defenses that Wachovia could raise about its own conduct, Wells Fargo itself cannot violate state laws when servicing loans that were originated by an entity regulated by HOLA." (Id. at p. 995.) Wells Fargo, on the other hand, cites state and federal cases broadly applying HOLA preemption. (See, e.g., Akopyan v. Wells Fargo Home Mortgage, Inc. (2013) 215 Cal.App.4th 120, 140-141; Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729, 738.)
On appeal, appellants reference "overcharg[ing] . . . for underwriting, tax services, and wire transfer fees in conjunction with home loans" and "violation of the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. § 2601 et seq.)." However, as respondents point out, appellants do not cite to any portion of their complaint that makes such allegations. --------
Finally, appellants assert the trial court erred in sustaining respondents' demurrer without leave to amend, but they fail to suggest how their complaint could be amended to address the failings discussed herein. The trial court did not err in denying leave to amend.
DISPOSITION
The trial court's judgment is affirmed. Costs on appeal are awarded to respondents.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.