Opinion
A131177
09-30-2011
CARLOS S. MONZO et al., Plaintiffs and Appellants, v. U.S. BANK NATIONAL ASSOCIATION 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV 498334)
Carlos S. and Crisanta F. Monzo (appellants) appeal from a judgment entered after the trial court sustained U.S. Bank National Association and Litton Loan Servicing LP's (together respondents) demurrer without leave to amend. They contend the trial court erred in sustaining their demurrer to their second cause of action for wrongful disclosure because the notice of default that respondents recorded before pursuing foreclosure on appellants' real property did not "satisf[y] the notice and other requirements of the foreclosure laws of California." We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts here are taken from the complaint and attached exhibits and from matters of which the trial court took judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [" 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . We also consider matters which may be judicially noticed."].) We deny respondents' request for judicial notice of additional documents that were not presented to the trial court. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Reviewing courts generally do not take judicial notice of evidence not presented to the trial court."].)
In 2006, appellants borrowed $561,750 from Ownit Mortgage Solutions, Inc., the predecessor in interest of U.S. Bank National Association (U.S. Bank), and signed an adjustable rate balloon note and a deed of trust on real property located in Pacifica, California (the Pacifica property). Litton Loan Servicing LP (Litton) was the loan servicer acting as an agent for U.S. Bank. On January 6, 2009, a notice of default (the Notice of Default) was recorded against the Pacifica property stating appellants were more than $20,000 in arrears on their mortgage. In July 2009, appellants filed a Chapter 13 bankruptcy petition and an automatic stay became effective upon filing. In December 2009, U.S. Bank moved for relief from the automatic stay on the ground that appellants were in default on their mortgage payments. On July 2, 2010, the bankruptcy court issued an Order Terminating the Automatic Stay finding appellants had "failed to cure the post-petition default under the terms of the Adequate Protection Stipulation and Order . . . ." The bankruptcy court's order authorized U.S. Bank to proceed with nonjudicial foreclosure of the Pacifica property.
On August 26, 2010, appellants filed a complaint in San Mateo Superior Court alleging: (1) unlawful disposition of collateral; (2) wrongful foreclosure; (3) breach of contract; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. They alleged, in addition to facts set forth above, that they were "up to date in paying" their mortgage to U.S. Bank through Litton "from the date the Chapter 13 Petition was filed until July 2010."
Respondents filed a demurrer on October 14, 2010. The trial court sustained the demurrer to the first, third, fourth and fifth causes of action without leave to amend on the ground that they were barred by the doctrines of res judicata and judicial estoppel because the bankruptcy court had already found that appellants had failed to cure their post-petition default. The trial court also sustained the demurrer to the second cause of action for wrongful foreclosure without leave to amend, stating, "The second cause of action is predicated on the claim that [respondents] failed to file and record a Notice of Default . . . . The Court takes judicial notice of the Notice of Default . . . recorded in the official records of the county recorder's office for the County of San Mateo on January 6, 2009."
DISCUSSION
Standard of Review
"On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, 'i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' [Citation.]" (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) " ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]" ' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "Ordinarily on demurrer the allegations of the complaint must be accepted as true. But this does not apply to . . . allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. [Citation.]" (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.)
Appellants contend the trial court erred in sustaining, without leave to amend, the demurrer to their second cause of action for wrongful disclosure because respondents violated state foreclosure laws when they failed to record a new notice of default after the bankruptcy court granted them relief from the automatic stay. Appellants, however, cite no authority that supports their position that respondents were required to file a new notice of default. They cite to Civil Code section 2924, but that section requires only that "a notice of default" be filed containing the following pertinent information: (1) the instrument number or the book and page number of the recorded deed of trust or mortgage; (2) a description of the secured property; (3) a statement that a breach has occurred; (4) a statement setting forth the nature of each breach known to the beneficiary; and (5) notice of the beneficiary's election to sell the property to satisfy any obligations secured by the deed of trust or mortgage that is in default. (Civ. Code § 2924, subd. (a)(1); italics added.) It does not require that a new notice of default be filed for every default that occurs, or whenever foreclosure proceedings are stayed by the filing of a Chapter 13 bankruptcy petition. Notice of Default filed on that date; rather, it simply kept respondents from taking further action towards selling the Pacifica property. Once the bankruptcy court granted them relief from the automatic stay, respondents had the authority to resume the foreclosure proceedings based on the Notice of Default that remained uncured.
By filing their Chapter 13 petition, appellants temporarily halted the nonjudicial foreclosure proceedings initiated by the recordation of the Notice of Default on January 6, 2009. However, the automatic stay did not invalidate the Appellants do not appear to challenge the trial court's ruling that their first, third, fourth and fifth causes of action were barred by the doctrines of res judicata and collateral estoppel.
In fact, there are cases that show that a new notice of default need not be filed where foreclosure proceedings are interrupted by the filing of a bankruptcy proceeding. (E.g., Napue v. Gor-Mey West, Inc. (1985) 175 Cal.App.3d 608, 615616, 618 [a notice of sale could be recorded immediately upon relief from a bankruptcy stay where a notice of default was filed before the bankruptcy petition was filed]; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 96 [upholding notice of trustee's sale after a year elapsed from the recordation of the notice of default due to the debtors' bankruptcy filing, and rejecting the debtors' argument that the notice was prematurely given].)
Appellants raise two additional contentions in a cursory manner. First, they contend the bankruptcy court's order lifting the stay violated foreclosure laws because it "was not recorded nor did it contain the information required by California foreclosure laws." Second, they contend the foreclosure "[c]ould not be [b]ased on the Notice of Default that was [r]ecorded on January 6, 2009," because appellants "were not in default as they were current in their payment to the bankruptcy trustee." We decline to address these contentions, which are made without citation to the record or legal argument or authority. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness," thus, when an appellant fails to support his or her contention "with reasoned argument and citations to authority, we treat the point as waived"].)
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DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
McGuiness, P.J.
We concur:
Pollak, J.
Jenkins, J.