Opinion
A169700
10-03-2024
LIEZL DE GUZMAN, Plaintiff and Appellant, v. REAL TIME RESOLUTIONS, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 22CIV01552)
RICHMAN, ACTING P. J.
In 2006, appellant Liezl De Guzman took out a home equity line of credit in a maximum amount of $168,750, secured by real property on Arroyo Drive in South San Francisco. In 2011, De Guzman filed for bankruptcy and stopped making payments on the loan. Some ten years later, in 2021, respondent Real Time Resolutions, Inc. (RTR) foreclosed on the property, which was later sold at a trustee's sale. De Guzman brought suit against respondents RTR, Mortgage Electronic Registration Systems, Inc. (MERS), and Shauna Boedeker (and nine other defendants), alleging various theories as to why the foreclosure was wrongful. The trial court granted summary judgment to respondents. We affirm.
BACKGROUND
The Mortgage, the HELOC, and the Foreclosure
De Guzman obtained a real estate license in 2005. In 2006, she and her husband, Randel L. De Guzman, purchased property on Arroyo Drive in South San Francisco as an investment (the property). In order to finance the purchase, on October 16, 2006, De Guzman and her husband obtained a $843,750.00 primary mortgage loan and a home equity line of credit (HELOC) in a maximum amount of $168,750.00 from Countrywide Bank, N.A., secured by the property. In connection with both the mortgage loan and the HELOC, De Guzman and her husband executed deeds of trust (the primary deed of trust and the HELOC deed of trust, respectively) naming MERS as beneficiary "acting solely as a nominee" for Countrywide Bank, N.A. and its "successors and assigns." Both deeds of trust were recorded in San Mateo County on October 20, 2006.
RTR began servicing the HELOC loan in September of 2009.
In 2011, De Guzman and her husband filed for bankruptcy and thereafter stopped making payments on the HELOC loan.
Approximately 10 years later, on June 22, 2021, MERS executed an assignment of the HELOC deed of trust to RTR, which assignment was recorded on July 7, 2021. Shauna Boedeker executed the Assignment as a Vice President of MERS.
On September 28, RTR recorded a notice of default (NOD) with respect to the property, followed by a notice of trustee's sale on January 4, 2022.
On April 4, the property sold at auction for $315,600 to New Hope Charity, and a trustee's deed upon sale was recorded on June 13. According to the deed, the amount of the unpaid debt at that time was $302,177.21.
On June 24, a grant deed was recorded through which New Hope Charity transferred the property to Julianmore, LLC. Also on June 24, a deed of trust and assignment of rents was recorded reflecting that Julianmore, LLC obtained a loan from Anchor Loans, LP secured by the property. On July 8, a full reconveyance was recorded reflecting that plaintiffs' primary deed of trust had been reconveyed.
The Proceedings Below
Meanwhile, in April 2022, De Guzman and her husband, proceeding in propria persona, filed a complaint, and in June, a first amended complaint, naming as defendants RTR, MERS, and Shauna Boedeker (and two other defendants), and asserting eight causes of action.
On August 31, after the trial court sustained a demurrer to the first amended complaint, plaintiffs filed the operative second amended complaint (SAC) against respondents (and now nine other defendants). The SAC asserted nine causes of action: (1) wrongful foreclosure; (2) set aside trustee's sale; (3) quiet title; (4) accounting; (5) fraudulent misrepresentation; (6) declaratory relief; (7) unjust enrichment; (8) violation of Business and Professions Code section 17200 et seq.; and (9) preliminary and/or permanent injunction. Four of the causes of action (the third, seventh, eighth, and ninth) were against all defendants. Other causes of action were against specific defendants only.
These nine defendants- Julianmore, LLC, Tai Le, Les Gates Property Management, New Hope Charity, ZBS Law, LLP, Zachary Chamali, Bank of New York Mellon, Bank of America, N.A., and First American Title Insurance-are not parties to this appeal.
As against respondents, plaintiffs fundamentally alleged that the sale of the property was wrongful because RTR was not properly assigned the HELOC deed of trust, Shauna Boedeker was not authorized to sign the assignment, and enforcement of the deed of trust was time-barred.
Respondents demurred to the SAC, and on November 2, the trial court overruled respondents' demurrer, concluding that "the claims here are highly factual" and "are better explored not by throwing out the case on demurrer, but dealing with it on the merits."
On February 3, 2023, the trial court granted plaintiff and coborrower Randel De Guzman's request that the SAC be dismissed as to him without prejudice.
On August 24, respondents filed a motion for summary judgment or summary adjudication, as well as a request that the trial court take judicial notice of four documents recorded in San Mateo County: (1) the July 8, 2011 assignment of the primary deed of trust to Bank of New York Mellon; (2) the June 24, 2022 grant deed from New Hope Charity to Julianmore, LLC; (3) the June 24, 2022 deed of trust and assignment of rents from Julianmore, LLC to Anchor Loans, LP; and (4) the July 8, 2022 full reconveyance of the primary deed of trust. In alternatively seeking summary adjudication, the motion addressed all nine causes of action.
De Guzman filed opposition on November 21, attaching several exhibits.
On December 1, respondents filed a reply, as well as objections to certain of the evidence attached to plaintiff's opposition.
A hearing on the motion was held on December 6, in advance of which the trial court issued a thorough 11-page tentative decision granting the motion as to all of De Guzman's claims against each of respondents RTR, MERS, and Boedeker. At the conclusion of the hearing, the trial court indicated that it would issue the tentative as drafted.
The trial court's decision began by granting respondents' request for judicial notice, and sustaining respondents' objections to several of the exhibits submitted by De Guzman in support of the motion.
The decision continued:
"As against RTR, MERS, and Boedeker, plaintiff's claims hinge on the two substantive causes of action-for 'wrongful foreclosure' and 'fraud.' The 'fraud' claim (Fifth Cause of Action) is based on the same theories underlying the 'wrongful foreclosure' claim. The SAC alleges several different theories as to why the 2022 foreclosure sale was purportedly 'wrongful.' Having reviewed the evidence supporting these various theories of 'wrongful foreclosure' and 'fraud,' the Court finds that none of them is supported by evidence sufficient to raise a triable issue of fact. Because the only two substantive claims (wrongful foreclosure and fraud) fail as a matter of law, so too do the other claims asserted against RTR, MERS, and Boedeker."
The trial court then addressed De Guzman's various theories of wrongful foreclosure, beginning with her contention that "the July 2021 assignment is 'void' because, according to plaintiff, Shauna Boedeker was not an officer of RTR at the time." The court found that "RTR cited authority in its moving papers establishing that plaintiff lacks standing to assert this argument, which plaintiff's Opposition fails to address." Even assuming she had standing, the court observed that "[p]laintiff has offered no evidence that Boedeker was not MERS's agent," and that "[p]laintiff does not object to RTR's proffered evidence on this issue, which establishes beyond any reasonable dispute Boedeker's authority to sign the Assignment," going on to detail that evidence, including the declaration of RTR's corporate counsel and RTR's corporate resolutions granting Boedeker signing authority on behalf of MERS. The trial court concluded that "[p]laintiff, conversely, offers no admissible evidence disputing any of the foregoing."
With respect to the argument that the foreclosure was time-barred, the court rejected the contention that the Fair Debt Collection Practices Act (FDCPA) applied, noting that" 'the FDCPA does not apply to foreclosures,'" and "[t]he statute of limitations for asserting an FDCPA claim does not apply here, because the SAC does not assert an FDCPA cause of action." Similarly, the trial court explained: "plaintiff contends that the foreclosure was time-barred by Code of Civil Procedure section 337, which states the statute of limitations for asserting a breach of contract claim. [Citation.] Section 337 does not apply, however, because the SAC does not assert a claim for breach of contract." The trial court concluded that "[h]ere, the recorded HELOC Deed of Trust, which is the security instrument for plaintiff's line of credit, does not identify a maturity date. [Citations.] Thus, per [Civil Code] section 882.020, subdivision (a)(2), the 60-year statute of limitations applies. RTR's right to enforce the HELOC Deed of Trust through the April 4, 2022 sale was not time-barred."
The trial court went on to reject De Guzman's various other arguments, including that "[t]he evidence fails to raise a triable issue as to whether RTR conducted a 'wrongful foreclosure' due to the $315,600 sale amount," and "[t]he evidence fails to raise a triable issue as to whether the stated amount that [p]laintiff owed on the HELOC (about $302k) was incorrect." (Boldface &italics omitted.) Finally, the trial court addressed the various other causes of action.
Judgment was entered in favor of respondents on December 18, from which De Guzman filed a notice of appeal.
DISCUSSION
De Guzman has chosen to represent herself on appeal, as is her right. In doing so, however, she is still held to the same standard as an attorney. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) Self-representation is not a ground for lenient treatment, and "as is the case with attorneys, pro. per. litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) In sum, De Guzman" 'is entitled to . . . no greater, consideration than other litigants and attorneys [citations], . . . [but] is held to the same restrictive rules of procedure as an attorney.'" (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
We review a "grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.) As we put it in Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: "[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff's theories and establishing that the action was without merit." (Accord, Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
In addition to the above is the well-recognized admonition, set forth, for example, in Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230 this way: "On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) . . . '[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.' (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)" (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 8:17.2 ["Although the trial court's decision [on appeal from summary judgment] is reviewed independently, the scope of review is limited to those issues that have been adequately raised and supported in appellant's brief"].)
Specifically, "Each brief must: [¶] . . . [¶] . . . State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority," and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal Rules of Court, rule 8.204(a)(1)(B) &(C).) And "[a]n appellant's opening brief must: [¶] . . . [¶] (C) Provide a summary of the significant facts limited to matters in the record." (Cal Rules of Court, rule 8.204(a)(2)(C).)
De Guzman's 36-page opening brief does not comply with these requirements in many respects. After an introduction, a lengthy section containing boilerplate law on summary judgment, a brief statement of facts, and a four-page section titled "Issues Presented," the brief sets forth seven arguments under separate headings, spanning some 13 pages. (Capitalization, boldface &underlining omitted.) Four of these seven arguments contain no citation to authority, and two others no citations to the record. More importantly, the brief nowhere quotes from or acknowledges the trial court's decision, nor does it make any effort to explain how that decision was in error. De Guzman nowhere identifies any of the elements of the nine purported causes of action in the operative complaint, nor does she explain how the alleged "triable issues" that she identifies relate to the trial court's conclusion that summary judgment was appropriate, or as to which of her causes of action.
Nevertheless, even though many of De Guzman's arguments are waived under the principles set forth above, they are also without merit, as we now discuss.
Granting RTR's Request for Judicial Notice
De Guzman's first argument is that the trial court erred in granting respondents' request for judicial notice, "when the documentary evidence presented by [RTR] . . . was totally hearsay on the matters contained thereon." The argument cites authority that "[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.... [A] hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable." (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
To begin with, this is not a demurrer but a summary judgment. And as to this, and as noted, the trial court took judicial notice of four documents: (1) the July 8, 2011 assignment of the deed of trust; (2) June 24, 2022 grant deed; (3) June 24, 2033 deed of trust and assignment of rents; and (4) July 8, 2022 full reconveyance. In so doing, the trial court expressly stated that "[a]s to recorded documents, the Court takes judicial notice of their contents and recording dates, but does not take judicial notice of the truth of statements in the documents." This was entirely proper. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 ["a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity"], disapproved on another ground in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 937.)
In any event, the trial court only briefly mentioned the documents in the request for judicial notice in reaching its decision. The trial court observed that the first document, the July 8, 2011 assignment, "involved the First Deed of Trust, which secured plaintiff's primary mortgage loan," and thus it "had no bearing on the July 8, 2021 Assignment of the HELOC Deed of Trust to RTR." And in rejecting De Guzman's argument that the $315,600 sales price to New Hope Charity was unlawful or" 'wrongful'" given that the property was allegedly then worth close to $2 million, the trial court cited the remaining three documents in the request for judicial notice to show that the low price could be explained by the fact that New Hope Charity acquired the property still subject to the primary deed of trust. De Guzman has not explained how the trial court committed error in any of the above, nor how it has anything to do with its conclusion that she had failed to establish any triable issues of material fact with respect to any of her causes of action.
Shauna Boedeker's Authority On Behalf of MERS
De Guzman next argues that the trial court erred in finding that Shauna Boedeker was not authorized to execute the June 22, 2021 assignment on behalf of MERS, an argument based entirely on a printout from a website called "opencorporates.com," purporting to show that a "Removal of officer SHAUNA BOEDEKER" occurred at RTR "[b]etween 202104-30 and 2021-05-31" and submitted by De Guzman as an attachment to her separate statement of disputed facts in opposition to respondents' motion.
To begin with, De Guzman's brief fails to mention that the trial court sustained respondents' objection to the printout from "opencorporates.com," meaning that respondents' evidence on this point was uncontradicted. (See Code of Civ. Proc., § 437c, subd. (c) ["In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court . . ."].)
Were that not enough, the issue was not whether Boedeker was employed by RTR on June 22, 2021, but whether she was authorized to sign the assignment on behalf of MERS on that date. As the trial court explained, De Guzman's allegation that Boedeker was not employed by RTR "does not negate that she was an authorized agent of MERS to sign the Assignment on MERS's behalf.... Plaintiff has offered no evidence that Boedeker was not MERS's agent." The trial noted that "Plaintiff does not object to RTR's proffered evidence on this issue, which establishes beyond any reasonable dispute Boedeker's authority to sign the Assignment," going on to detail that evidence, including the declaration of RTR's corporate counsel and copies of RTR's corporate resolutions granting Boedeker signing authority on behalf of MERS, and concluding that "[p]laintiff, conversely, offers no admissible evidence disputing any of the foregoing."
This declaration included the statement that "Shauna Boedeker is the Chief Financial Officer of [RTR]" and "has been employed continuously with [RTR] from prior to the origination of the HELOC Loan to the present time."
Again, De Guzman has not even acknowledged the trial court's reasoning as set forth above, much less explained how the trial committed any error with respect to it.
RTR's Status as a Debt Collector Under the FDCPA
De Guzman's third argument is that "[t]he [t]rial [c]ourt erred in not finding triable issues that RTR is subject to FDCPA regulations as a [d]ebt [c]ollector." (Boldface omitted.) But the trial court did not find that RTR was not a debt collector under the FDCPA. Instead, it rejected De Guzman's argument because "the FDCPA does not apply to foreclosures," and "[t]he statute of limitations for asserting an FDCPA claim does not apply here, because the SAC does not assert an FDCPA cause of action." (See, e.g., Obduskey v. McCarthy &Holthus LLP (2019) 586 U.S. 466, 477 ["those who engage in only nonjudicial foreclosure proceedings are not debt collectors within the meaning of the [FDCPA]"].) Again, De Guzman has not acknowledged the trial court's actual reasoning why the FDCPA and its statute of limitations do not apply, much less shown any error therein.
RTR's Alleged Failure to Provide Regular Billing Statements
De Guzman's fourth argument is that "[t]he [t]rial [c]ourt erred in not finding triable issues that RTR for many years did not provide periodic billing statements according to law" (boldface omitted), apparently contending that RTR violated the requirements set forth in Code of Federal Regulations section 1026.7, requiring period statements disclosing certain information in connection with "home-equity plans." (See C.F.R. § 1026.7.) This argument does not appear to have been made to the trial court, and accordingly, it may not be raised for the first time on appeal. (See Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 [" 'Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments.... An argument or theory will generally not be considered if it is raised for the first time on appeal' "].) To the extent De Guzman could have alleged an FDCPA claim based on these alleged violations of Code of Federal Regulations section 1026.7, she did not do so, and the operative complaint "does not assert an FDCPA cause of action."
Statute of Limitations and Laches
De Guzman's opening brief asserts that under Code of Civil Procedure section 337, the "statute of limitations of these Debts are four years," and argues that we should consider "[t]he existence of laches" as a "question of fact" to be determined for the first time on appeal. But as the trial court explained, Code of Civil Procedure section 337 establishes a four-year statute of limitations for breach of contract claims, and "the SAC does not assert a claim for breach of contract." Instead, "[Civil Code] section 882.020 sets forth the limitations period relating to enforcement of deeds of trust," and because "the recorded HELOC Deed of Trust, which is the security instrument for plaintiff's line of credit, does not identify a maturity date," the 60-year statute of limitations set forth in Civil Code section 882.020, subdivision (a)(2) applies. Again, De Guzman fails to mention, much less show error in, any of the trial court's reasoning as set forth above.
Civil Code section 882.020, subdivision (a) provides:
"(a) Unless the lien of a mortgage, deed of trust, or other instrument that creates a security interest of record in real property to secure a debt or other obligation has earlier expired pursuant to Section 2911, the lien expires at, and is not enforceable by action for foreclosure commenced, power of sale exercised, or any other means asserted after, the later of the following times: "(1) If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is ascertainable from the recorded evidence of indebtedness, 10 years after that date. "(2) If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is not ascertainable from the recorded evidence of indebtedness, or if there is no final maturity date or last date fixed for payment of the debt or performance of the obligation, 60 years after the date the instrument that created the security interest was recorded."
As for her argument that the doctrine of laches bars RTR from exercising the power of sale in the deed of trust, we decline to consider this argument for the first time on appeal. (See Martinez v. Scott Specialty Gases, Inc., supra, 83 Cal.App.4th at p. 1249.) And as the court in Nicolopulos v. Superior Court (2003) 106 Cal.App.4th 304 explained, in language equally applicable here:
"[De Guzman] also argues the equitable doctrine of laches prevents [RTR] from asserting the 60-year limitation period. We entertain some doubt that the doctrine of laches is applicable in these circumstances. 'Laches is an unreasonable delay in asserting an equitable right, causing prejudice to an adverse party such as to render the granting of relief to the other party inequitable.' (Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 439.) It is available as a defense to a lawsuit by a plaintiff seeking equitable relief. [RTR] is not seeking equitable relief, or asserting an equitable right. Indeed, [it] has filed no lawsuit. [It] is merely exercising the power of sale in [its] deed of trust in a nonjudicial foreclosure, and the law is clear [its] right to do so has not expired. In any case, it is difficult to discern any particular prejudice or inequity to [De Guzman]. [She] signed and benefited from the note, signed the deed of trust recorded against [her] property, and did not repay the obligation." (Nicolopulos v. Superior Court, supra, 106 Cal.App.4th at p. 312, fn. omitted.)
The Amount of the Unpaid Debt
De Guzman's sixth argument is that the trial court should have found "triable issues" with respect to the fact that the original HELOC was in the amount of $168,500, which changed "to an escalated amount alleged unpaid amount of $302,177.21 in the Trustee Deed Upon Sale on 04/04/2022." (Boldface omitted.)
Again, as the trial court cogently explained:
"In making this argument, Plaintiff fails to distinguish between the amount in default (as stated in the NOD) and the total balance owed on the HELOC. The Notice of Default stated that Plaintiff's loan was in default in the amount of $178,727.19 as of September 22, 2021. [Citation.] The NOD did not purport to represent that the balance owed on the loan was $178,727.19. The Notice of Trustee's Sale then indicated that the 'unpaid balance and other charges' were estimated at $297,054.75 as of February 2, 2022. [Citation.] Plaintiff's suggestion that these numbers demonstrate or suggest malfeasance ignores this fundamental distinction between the amount in default and the total unpaid balance of the loan. Plaintiff [] admits she did not make any payments on the HELOC since 2011. (See also NOD [stating that the total amount owed 'will increase until your account becomes current.'].) [¶] Plaintiff 'disputes' the accuracy of these numbers, but offers no evidence that they are incorrect. Mere argument that they are incorrect does not raise a triable issue." (Italics omitted.)
The Assignment of the Deed of Trust
De Guzman's final argument, set forth in a bare two paragraphs at the end of her opening brief, is that "the trial [c]ourt erred in not finding that Defendant/Respondent [RTR] has lost its security it being a zombie loan and cannot foreclose on the subject property" (boldface omitted), going on to assert without explanation that the assignment of the HELOC deed of trust is "void and totally [u]nenforceable." For the reasons already given, De Guzman has failed to carry her burden to demonstrate error in the judgment below.
DISPOSITION
The judgment is affirmed. Respondents RTR, MERS, and Shauna Boedeker shall recover their costs on appeal.
WE CONCUR: MILLER, J. DESAUTELS, J.