Opinion
E067746
06-21-2018
PATRICK MAYO et al., Plaintiffs and Appellants, v. BANK OF AMERICA, N.A., Defendant and Respondent.
Patrick Mayo, in pro. per., for Plaintiff and Appellant. Mary Mayo, in pro. per., for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton, Jon D. Ives and Kerry W. Franich 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1601817) OPINION APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed. Patrick Mayo, in pro. per., for Plaintiff and Appellant. Mary Mayo, in pro. per., for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton, Jon D. Ives and Kerry W. Franich for Defendant and Respondent.
Plaintiffs and appellants Patrick and Mary Mayo (the Mayos) appeal from a judgment of dismissal entered after the trial court sustained the demurrers of defendants and respondents, Carrington Mortgage Services, LLC (CMS), and Bank of America, N.A. (BANA), without leave to amend, to the Mayos' first amended complaint (FAC) for, inter alia, wrongful foreclosure of their residence located at 7091 Perris Hill Road, San Bernardino, California (the property). The Mayos ask this court to reverse the judgment, void the instruments, and remand the matter back to the trial court to allow them to amend the FAC. We affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
In June 2008, the Mayos and third party Angela C. Mayo (collectively, Borrowers) borrowed $332,666 from Taylor, Bean & Whitaker Mortgage Corp. (TBW), and the loan was secured by a deed of trust encumbering the property. On November 7, 2011, Mortgage Electronic Registration Systems, Inc. (MERS), the original beneficiary, assigned the deed of trust to BANA. Until August 1, 2014, BANA was the loan servicer. On or around August 12, 2014, CMS notified the Borrowers that the servicing rights to their loan had transferred from BANA to CMS effective August 1, 2014.
The Borrowers defaulted on the loan and, in November 2014, the Mayos entered into a Loan Modification Agreement (the Modified Loan). Two months later, the Mayos stopped making payments on the Modified Loan, and on February 3, 2015, CMS informed them about the availability of several alternatives to foreclosure. In March 2015, the Mayos applied for another loan modification; however, they were ineligible because their loan had been modified within the last 24 months.
Angela C. Mayo is not a party to the Modified Loan.
On May 11, 2015, CMS notified the Mayos that their Modified Loan was in default, and the matter would be referred to foreclosure proceedings. Ten days later, CMS notified the Mayos of its intent to foreclose. The Mayos were offered a few options to avoid foreclosure, such as "Short Sale or a Deed-in-Lieu"; however, they were not interested. On June 24, 2015, the Modified Loan was referred to foreclosure.
On July 16, 2015, an assignment of the deed of trust was recorded, reflecting the assignment of the beneficial interest from BANA to CMS, and CMS substituted MTC Financial, Inc., dba Trustee Corps (MTC), as trustee. On July 31, 2015, a "Notice of Default And Election To Sell" under the deed of trust was recorded. At that time, the Modified Loan was in default in the amount of approximately $12,026.04. About August 31, 2015, the Mayos were again informed they were ineligible for a loan modification, since they had received one in the past 24 months.
On February 10, 2016, the Mayos initiated this action, alleging causes of action for violation of the Homeowner Bill of Rights (HBOR), unfair business practices, breach of good faith and fair dealing, negligence, negligent infliction of emotional distress, declaratory and injunctive relief. On February 24, 2016, a Notice of Trustee's Sale was recorded; however, the sale was placed on hold. On June 2, 2016, the Mayos applied for a preliminary injunction to stop the sale. Six days later, MTC rescinded its Notice of Default and Election to Sell, and the trial court denied the Mayos' application as moot.
On September 6, 2016, the Mayos filed their FAC, alleging violation of the HBOR, unfair business practices, injunctive relief, and wrongful foreclosure. BANA and CMS demurred. The Mayos conceded that their HBOR, unfair business practices, and wrongful foreclosure claims were moot due to the rescission of the Notice of Default and Election to Sell, and they offered no opposition to the demurrer to their remaining claim for injunctive relief. Instead, they requested leave to amend the FAC to add causes of action for declaratory relief and cancellation of instruments. The trial court sustained the demurrers without leave to amend, and dismissed the action as to CMS and BANA.
Judgment was entered as to CMS on November 22, 2016, and a separate judgment was entered as to BANA on December 5, 2016. The Mayos filed their notice of appeal on February 10, 2017. Consequently, we dismissed the appeal as to CMS as untimely and ordered the appeal to proceed only as to BANA.
II. DISCUSSION
A. Standard of Review.
"For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice. [Citation.] To determine whether the trial court should, in sustaining the demurrer, have granted plaintiff leave to amend, we consider whether on the pleaded and noticeable facts there is a reasonable possibility of an amendment that would cure the complaint's legal defect or defects. [Citation.]" (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. omitted.) We independently review the complaint to determine whether it contains sufficient facts to state a claim. We next determine whether the trial court abused its discretion in denying leave to amend. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490-1491.)
B. The Mayos Forfeited Any Argument on Appeal.
1. The Mayos' Briefing Is Inadequate.
Contending that each and every assignment of interest in the deed of trust is void, the Mayos ask this court to reverse the judgment, void the instruments, and remand the matter back to the trial court to allow them to amend the FAC to add Angela C. Mayo as a plaintiff, and claims for fraud, mail fraud, deceit, quiet title, recording of false or fraudulent documents, wrongful foreclosure, unfair business practices, negligence, HBOR, and declaratory relief. While it is clear that the Mayos disagree with the trial court's decision, it is unclear what specific argument they believe will establish the judgment must be reversed. They have failed "to provide a proper heading to the argument and continue[] in the text, where [they] jump[] around, criticizing the order but never providing a solid foundation for an argument that we must reverse it." (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 Mayos' briefs, they discuss the procedural history of the case, their claims, 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 Mayos' "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."].) The fact that they appear in propria persona provides no ground for exceptionally lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 ["self-representation is not a ground for exceptionally lenient treatment"]; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 [in propria persona litigants are "entitled to the same, but no greater, rights than represented litigants"].)
2. The Mayos Conceded the Demurrer Should Be Sustained.
The Mayos did not oppose BANA's demurrer to any of the claims in their FAC. Rather, they conceded that "the HBOR, Business & Professions Code § 17200, et seq., and wrongful foreclosure causes of actions are moot" (italics omitted) "due to the rescission of the Notice of Default," and they offered no opposition to the demurrer to their remaining claim for injunctive relief. "[W]hen a party bears some responsibility for the claimed error, they are generally estopped from taking a different position on appeal or are deemed to have waived the error." (City of Scotts Valley v. County of Santa Cruz (2011) 201 Cal.App.4th 1, 29; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 ["'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal.'"].)
For the above reasons, the Mayos have forfeited any argument on appeal as to the merits of the trial court's order sustaining BANA's demurrer.
C. The Demurrer Was Properly Granted.
Notwithstanding the above, the demurrer was properly granted.
1. The Trial Court Correctly Sustained BANA's Demurrer.
Regarding the alleged violations of HBOR and unfair business practices, the Mayos asserted that BANA proceeded to foreclose on the property while assuring the Mayos that their loan modification was being reviewed. They assert that BANA has "a pattern and practice of foreclosing on property of California homeowners without contacting them to explore options to avoid foreclosure as required by law." Regarding the alleged wrongful foreclosure, the Mayos allege that BANA never possessed the right to foreclose because the deed of trust was never validly assigned to BANA, and thus, BANA never received any beneficial interest in it. The Mayos are unable to assert these claims against BANA because (1) they were offered a loan modification in 2014; (2) their loan was modified in November 2014; (3) BANA was not the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent when the notice of default was recorded on July 31, 2015; (4) BANA did not record the notice of default; and (5) the Notice of Default and Election to Sell was rescinded in June 2016.
Regarding the alleged claim for injunctive relief, injunctive relief is a remedy, not a cause of action. (See City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 ["'A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.'"].) Here, the purported cause of action for injunctive relief is based on the Mayos' wrongful foreclosure claim and seeks to enjoin any trustee's sale of the property. As the FAC failed to allege facts stating an underlying cause of action for wrongful foreclosure against BANA, the order sustaining the demurrer as to the claim for injunctive relief was proper.
2. The Trial Court Did Not Abuse Its Discretion in Denying the Request for Leave to Amend.
The Mayos requested leave to amend the FAC to add Angela C. Mayo as a plaintiff, and to add causes of action for an accounting, declaratory relief and cancellation of instruments. They sought to add accounting and declaratory relief claims "to have the fees and amounts incurred from the wrongful notice of default be stricken from the amount of money [they] owed under the Note." They sought a declaration that BANA is not the beneficiary and that they do not owe any money to BANA and its agent/servicer. They further sought to cancel or void all the assignments of the deed of trust. In order for the trial court to permit an amended pleading, the plaintiff must "clearly and specifically" set forth the legal authority for the claims they contend they can allege, the elements of each of those claims, and the specific factual allegations that would establish each of those elements. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44.) The Mayos made no attempt to meet this burden.
In their briefing on appeal, the Mayos mention several other causes of action they would like to add: fraud, mail fraud and wire fraud, deceit quiet title, recording of false or fraudulent documents, wrongful foreclosure, unfair business practices, negligence, HOBR, and declaratory relief. However, many of these claims were asserted in the Mayos' original complaint, but were omitted in the FAC. The Mayos failed to advise the trial court that they sought to add these claims, limiting their request to causes of action for declaratory relief and cancellation of instruments. Moreover, the Mayos do not demonstrate how these abandoned claims might be viable.
III. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. CODRINGTON
J.