Opinion
E065196
01-19-2018
MATTHEW J. HAMEL et al., Plaintiffs and Appellants, v. LENOX FINANCIAL MORTGAGE CORPORATION et al., Defendants and Respondents.
Matthew J. Hamel and Dawn Hamel, in pro. per., for Plaintiffs and Appellants. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendant and Respondent Bear Stearns Asset Backed Securities I LLC. No appearance for Defendants and Respondents Lenox Financial Mortgage Corporation and Fidelity National Title Insurance Company.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1209212) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Dismissed as to Lenox Financial Corporation and Fidelity National Title Insurance Company; otherwise the judgment is affirmed. Matthew J. Hamel and Dawn Hamel, in pro. per., for Plaintiffs and Appellants. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendant and Respondent Bear Stearns Asset Backed Securities I LLC. No appearance for Defendants and Respondents Lenox Financial Mortgage Corporation and Fidelity National Title Insurance Company.
In August 2012, plaintiffs and appellants Matthew and Dawn Hamel sued, among others, defendants and respondents Bear Stearns Asset Backed Securities I LLC (Bear Stearns), Lenox Financial Mortgage Corporation (Lenox), and Fidelity National Title Insurance Company (Fidelity), for the allegedly wrongful foreclosure of their property located in Fontana, California (the property). On October 24, 2013, the trial court granted Lenox's demurrer to the Hamels' third amended complaint without leave to amend. On November 26, 2013, the trial court dismissed Bear Stearns and Fidelity as unserved defendants. In October 2014, the Hamels filed a fourth amended complaint for fraud and slander of title, again naming Bear Stearns as a defendant. Their sole claim against Bear Stearns was for fraud. On June 30, 2015, the trial court held a hearing for an order to show cause regarding dismissal of the action, and took the matter under submission. On July 9, 2015, the trial court dismissed the entire action with prejudice, and the order was entered on November 6, 2015.
On March 16, 2016, we dismissed this appeal as untimely as to defendants and respondents Old Republic Default Management Services; JPMorgan Chase Bank, N.A. as successor by merger to Chase Home Finance LLC, and as transferee of servicing from EMC Mortgage LLC, formerly known as EMC Mortgage Corporation; Citibank, N.A. as Trustee for Bear Stearns Asset Backed Securities Trust 2007-2 Asset Backed Certificates, Series 2007-2; Mortgage Electronic Registration Systems, Inc. (MERS); and Wells Fargo Bank, N.A. On July 21, 2016, this court granted the unopposed motion to dismiss the appeal as untimely as to defendant and respondent Performance Credit, LLC. These defendants will be referred to only as necessary to a resolution of this appeal.
The Hamels appeal, and "request a review of the reversible errors that have taken place in this case beginning at the hearings held October 24, 2013 and November 26, 2013 and which have been perpetrated through the final hearing on this case held on June 30, 2015." We dismiss the appeal as to Lenox and Fidelity, and otherwise affirm the judgment.
In the Hamels' related appeal, case No. E065726, we affirm the judgment in San Bernardino County Superior Court case No. CIVDS1510327, dismissing the Hamels' action against MERS on the ground that it is barred by res judicata. The Hamels twice sued MERS, in separate successive actions, for its alleged "fabricated" assignment of deed of trust on the property, and wrongful foreclosure of said deed. We incorporate case No. E065726 by reference and take judicial notice of the documents contained therein. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); Cal. Rules of Court, rule 8.252(a); Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 563-564, fn. 2 [approving judicial notice of court records in related proceedings].) Also, at the request of Bear Stearns, oral argument in this case and case No. E065726 will be set for the same date and time. --------
I. PROCEDURAL AND FACTUAL BACKGROUND
In 2006, the Hamels borrowed $367,500 from Lenox, and the loan was secured by a deed of trust encumbering the property. Fidelity was identified as the trustee. The Hamels later defaulted on their mortgage payments, and foreclosure proceedings were initiated. In response, the Hamels filed their first lawsuit (San Bernardino Superior Court, case No. CIVDS1113394) on November 23, 2011, to stop foreclosure. The action was removed to the federal district court and dismissed on January 26, 2012.
On August 31, 2012, the Hamels initiated the present wrongful foreclosure action, primarily alleging that defendants lacked the authority to enforce the note and deed of trust because of supposed defects in the loan securitization process. On May 13, 2013, the third amended complaint was filed, focusing on alleged securitization fraud. On October 24, 2013, the trial court sustained Lenox's demurrer to the third amended complaint without leave to amend, and set a hearing for November 26, 2013, for dismissal. On November 26, 2013, the trial court dismissed Lenox, and on its own motion, dismissed Bear Stearns and Fidelity as unserved defendants. On December 20, 2013, Lenox filed and served notice of dismissal of the action. However, on February 25, 2014, the trial court ruled that dismissal of the entire action was in error, and that there were two remaining defendants, Wells Fargo Bank, N.A., and Performance Credit, LLC.
On May 29, 2014, as to those remaining defendants, the trial court granted demurrer without leave to amend with respect to each of the Hamels' claims for breach of contract, negligence, wrongful foreclosure, breach of the implied covenant of good faith and fair dealing, and "violation of UCL." The court granted 30 days' leave to amend the Hamels' claim for fraud.
In October 2014, the Hamels filed the fourth amended complaint, asserting fraud against Bear Stearns. On July 9, 2015, the trial court dismissed the entire action with prejudice, and the order was entered on November 6, 2015.
II. DISCUSSION
A. Dismissal of Appeal as to Lenox and Fidelity.
On October 24, 2013, the trial court sustained Lenox's demurrer without leave to amend, and on November 26, 2013, the court dismissed the action as to both Lenox and Fidelity. On December 20, 2013, Lenox filed and served notice of dismissal of the action. An order of dismissal has the effect of a final judgment and is therefore appealable, even if the dismissal is without prejudice. (See Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455.) The Hamels' notice of appeal was filed on January 5, 2016, more than the maximum 180 days from dismissal allowed for an appeal, and we therefore have no jurisdiction to review the dismissal order. (Cal. Rules of Court, rules 8.104(a)(1)(C), 8.104(e).) Therefore, the appeal is dismissed as to Lenox and Fidelity.
B. Action Against Bear Stearns.
The Hamels broadly ask for review of the trial court's actions "beginning at the hearings held October 24, 2013 and November 26, 2013 and which have been perpetrated through the final hearing on this case held on June 30, 2015." However, they represent that "[w]hat is at issue in this case is Mortgage Origination Fraud, Loan Modification Fraud and Mortgage Foreclosure fraud as part of a refinance of a sub-prime Deed of Trust and predatory loan." While it is clear that the Hamels disagree with the trial court's orders, it is unclear what specific argument they believe will establish the orders must be reversed. Other than bald conclusion and the request that this court review the trial court's orders for errors, the Hamels fail "to provide a proper heading to the argument and continue[] in the text, where [they] jump[] around, criticizing the order[s] but never providing a solid foundation for an argument that we must reverse [them]." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; see Cal. Rules of Court, rule 8.204(a)(1)(B) [legal argument].)
In the Hamels' briefs, they discuss the procedural history of the case and reference some legal authority. Nonetheless, they fail to organize their discussion into an argument that would provide us with an understanding of their position as to how that authority might apply to this case, and demonstrate error. The Hamels' "failure to present complete and coherent headings and legal arguments is significant because, as the appellant[s], it is [their] burden to overcome the presumption on appeal that the underlying order[s] [are] correct. [Citation.] [Their] manner of briefing does not overcome that presumption." (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 181; see Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260 ["An appellant's failure to raise an argument in its opening brief waives the issue on appeal."]; see also In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164 ["This court is not inclined to act as counsel . . . and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion."].)
For the above reasons, the Hamels have forfeited any argument on appeal as to the merits of the trial court's orders.
III. DISPOSITION
The appeal is dismissed as to Lenox and Fidelity. Otherwise, the judgment is affirmed. Bear Stearns shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. SLOUGH
J.