Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
198 Cal.App.4th 256
Court of Appeal, First District, Division
1, California.
Arlene FONTENOT, Plaintiff and
Appellant,
v.
WELLS FARGO BANK, N.A., et al.,
Defendants and Respondents.
No. A130478. | Aug. 11, 2011.
Synopsis
which purportedly amended forbearance
agreement with bank;
6 borrower was not entitled to leave to
amend complaint in order to attach copy of
letter; and
7 borrower lacked claim for promissory
estoppel.
Affirmed.
West Headnotes (27)
1
Background: Borrower brought action
against bank, lender’s nominee, and others
alleging wrongful foreclosure on deed of
trust. Bank and nominee filed demurrers,
based in part on recorded documents. The
Superior Court, Alameda County, No.
RG09433189, Ronni MacLaren, J., took
judicial notice of the documents and
sustained the demurrers without leave to
amend, and borrower appealed.
Holdings: The Court of Appeal, Margulies,
J., held that:
1 court could take judicial notice of fact that
lender’s nominee was the beneficiary under
deed of trust;
2 nominee did not have the burden of
proving a valid assignment of deed of trust;
3 allegation lender’s nominee was merely a
nominee was insufficient to demonstrate that
nominee lacked authority to make a valid
assignment;
4 alleged invalidity of assignment of deed of
trust was insufficient to demonstrate total
lack of authority to foreclose;
5 court could require borrower to attach to
third amended complaint a copy of letter
Appeal and Error
Matters or Evidence Considered in
Determining Question
Appeal and Error
Cases Triable in Appellate Court
30Appeal and Error
30XVIReview
30XVI(A)Scope, Standards, and Extent, in General
30k837Matters or Evidence Considered in
Determining Question
30k837(1)In general
30Appeal and Error
30XVIReview
30XVI(F)Trial De Novo
30k892Trial De Novo
30k893Cases Triable in Appellate Court
30k893(1)In general
On review from an order sustaining a
demurrer, the Court of Appeal
examines the complaint de novo to
determine whether it alleges facts
sufficient to state a cause of action
under any legal theory, such facts
being assumed true for this purpose;
the Court may also consider matters
that have been judicially noticed.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
2
Evidence
Nature and scope in general
When ruling on a demurrer, a court
may take judicial notice of something
that
cannot
reasonably
be
controverted, even if it negates an
express allegation of the pleading.
157Evidence
157IJudicial Notice
157k1Nature and scope in general
Trial court could take judicial notice
in foreclosure action of fact that
lender’s nominee was the beneficiary
under deed of trust, as nominee was
designated as the beneficiary in the
legally operative document, and that
status did not exist apart from the
deed of trust itself.
5
157Evidence
157IJudicial Notice
157k1Nature and scope in general
4 Cases that cite this headnote
3
When a court is asked to take judicial
notice of a document, the propriety
of the court’s action depends upon
the nature of the facts of which the
court takes notice from the
document.
West’s
Ann.Cal.Evid.Code § 452.
Evidence
Nature and scope in general
157Evidence
157IJudicial Notice
157k1Nature and scope in general
“Judicial notice” is the recognition
and acceptance by the court, for use
by the trier of fact or by the court, of
the existence of a matter of law or
fact that is relevant to an issue in the
action without requiring formal proof
of the matter.
4
Pleading
Scope of Inquiry and Matters
Considered on Demurrer in General
302Pleading
302VDemurrer or Exception
302k216Scope of Inquiry and Matters Considered on
Demurrer in General
302k216(1)In general
Evidence
Nature and scope in general
1 Cases that cite this headnote
6
Evidence
Nature and scope in general
157Evidence
157IJudicial Notice
157k1Nature and scope in general
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; from
this, the court may deduce and rely
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
upon the legal effect of the recorded
document, when that effect is clear
from
its
face.
West’s
Ann.Cal.Evid.Code § 452.
8
1 Cases that cite this headnote
Mortgages
Statutory provisions
266Mortgages
266IXForeclosure by Exercise of Power of Sale
266k330Statutory provisions
7
Mortgages
Wrongful Foreclosure
The nonjudicial foreclosure statutes
are a comprehensive scheme
designed: (1) to provide the
creditor/beneficiary with a quick,
inexpensive and efficient remedy
against a defaulting debtor/trustor,
(2) to protect the debtor/trustor from
wrongful loss of the property, and (3)
to ensure that a properly conducted
sale is final between the parties and
conclusive as to a bona fide
purchaser. West’s Ann.Cal.Civ.Code
§ 2924.
266Mortgages
266XIIWrongful Foreclosure
266k650In general
Lender’s nominee did not have the
burden of proving a valid assignment
of deed of trust, in wrongful
foreclosure action; rather, given the
presumption of regularity, if debtor
contended that foreclosure sale was
invalid because assignee had no
authority to conduct the sale, the
burden
rested
with
debtor
affirmatively
to
plead
facts
demonstrating
the
impropriety.
West’s Ann.Cal.Civ.Code § 2924.
See 4 Miller & Starr, Cal. Real
Estate (3d ed. 2001) §§ 10:4, 10:38
et seq.; Cal. Jur. 3d, Deeds of Trust,
§§ 110, 118; Cal. Civil Practice
(Thomson Reuters 2011) Real
Property Litigation, § 4:104;
Greenwald & Asimov, Cal. Practice
Guide: Real Property Transactions
(The Rutter Group 2011) ¶ 6:521
(CAPROP Ch. 6-I); 4 Witkin,
Summary of Cal. Law (10th ed.
2005) Security Transactions in Real
Property, § 165.
9
Mortgages
Operation and effect
266Mortgages
266IXForeclosure by Exercise of Power of Sale
266k378Operation and effect
A nonjudicial foreclosure sale is
presumed to have been conducted
regularly, and the burden of proof
rests with the party attempting to
rebut this presumption.
1 Cases that cite this headnote
2 Cases that cite this headnote
10
Mortgages
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
3
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
308k49Authority Conferred as Between Principal and
Parties who may make assignment
Agent
308k50In general
266Mortgages
266VAssignment of Mortgage or Debt
In general terms, an agent can be
266k222Parties who may make assignment
Allegation, in wrongful foreclosure
action involving deed of trust, that
lender’s nominee was merely a
nominee
was
insufficient
to
demonstrate that it lacked authority
to make a valid assignment of note
on behalf of the original lender;
while nominee had no power in its
own right to assign note, as it had no
interest in the note, assignment of
deed of trust stated that it was acting
as nominee for lender, which did
possess an assignable interest. West’s
Ann.Cal.Civ.Code § 2315.
authorized to do any act the principal
may do. West’s Ann.Cal.Civ.Code
§§ 2304, 2305.
13
266Mortgages
266VAssignment of Mortgage or Debt
266k228Necessity of delivery of evidence of
indebtedness secured
Purported assignment of deed of trust
by lender’s nominee was not invalid
under the common law of secured
transactions and theory that an
assignment of the security is a nullity
in the absence of an assignment of
the debt itself, where assignment of
the deed of trust expressly stated that
nominee assigned its interest in the
deed of trust “[t]ogether with the
note or notes therein described or
referred to.”
4 Cases that cite this headnote
11
Principal and Agent
Nature of the relation in general
308Principal and Agent
308IThe Relation
308I(A)Creation and Existence
308k1Nature of the relation in general
A “nominee” is a person or entity
designated to act for another in a
limited role—in effect, an agent.
1 Cases that cite this headnote
14
12
Principal and Agent
Authority Conferred as Between
Principal and Agent
308Principal and Agent
308IIMutual Rights, Duties, and Liabilities
308II(A)Execution of Agency
Mortgages
Necessity of delivery of evidence
of indebtedness secured
Secured Transactions
Requisites and validity in general
349ASecured Transactions
349AVAssignments of Security Interests and
Assignments Creating Security Interests
349Ak181Requisites and validity in general
The general principle is that because
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
4
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
the security for a debt is a mere
incident of the debt or obligation
which it is given to secure, the
assignment of an interest in the
security for a debt is a nullity in the
absence of an assignment of the debt
itself.
15
that nominee was the beneficiary,
acting as a nominee for the lender.
2 Cases that cite this headnote
17
266Mortgages
266XForeclosure by Action
266X(P)Review
266k578Scope and mode of review
Mortgages
Under trust deed
Borrower failed in opening brief on
appeal to argue that lender’s nominee
failed to demonstrate it had the
authority to foreclose because it did
not show the foreclosure was
necessary to comply with law or
custom as provided in the deed of
trust, and thus waived that contention
on appeal.
266Mortgages
266IXForeclosure by Exercise of Power of Sale
266k339Persons Entitled to Execute Power
266k341Under trust deed
Alleged invalidity of assignment of
deed of trust from lender’s nominee
to bank was insufficient to
demonstrate that bank lacked
authority to foreclose absent any
allegation that bank did not receive a
valid assignment of the debt in any
manner.
1 Cases that cite this headnote
16
Mortgages
Parties secured
266Mortgages
266IIIConstruction and Operation
266III(B)Parties and Debts or Liabilities Secured
266k112Parties secured
Record did not support borrower’s
contention that deed of trust was
ambiguous because it designated
lender’s nominee as both the
“nominee for the beneficiary” and as
the “beneficiary”; rather, it stated
Mortgages
Scope and mode of review
2 Cases that cite this headnote
18
Mortgages
Wrongful Foreclosure
266Mortgages
266XIIWrongful Foreclosure
266k650In general
Trial court could, in wrongful
foreclosure action, require borrower
to attach to third amended complaint
a copy of letter which purportedly
amended forbearance agreement with
bank; court conditioned leave to
amend complaint on attachment of
the agreement, as borrower had
already filed three unsuccessful
versions of the complaint, court’s
decision placed little burden on
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
5
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
withdrawal and pleading anew
borrower,
and
borrower
had
conceded she did not comply with
terms of original forbearance
agreement and thus she was relying
on the terms of the letter. West’s
Ann.Cal.C.C.P. § 472a(c).
19
For purposes of deciding whether the
trial court abused its discretion in
denying leave to amend, a showing
that the complaint can be amended to
state a cause of action need not be
made in the trial court so long as it is
made to the reviewing court.
Mortgages
Wrongful Foreclosure
266Mortgages
266XIIWrongful Foreclosure
266k650In general
21
Borrower was not entitled to leave to
amend
wrongful
foreclosure
complaint in order to attach copy of
letter
allegedly
amending
forbearance agreement, as, in light of
borrower’s failure to attach letter to
complaint or to opposition to bank’s
demurrer, there was no reason to
believe that letter constituted an
amendment to the agreement and
thus borrower failed to carry her
burden to demonstrate reasonable
possibility that she could cure the
defect in the complaint.
20
Appeal and Error
Additional or supplemental
pleadings and withdrawal and
pleading anew
30Appeal and Error
30XVIReview
30XVI(H)Discretion of Lower Court
30k959Amended and Supplemental Pleadings
30k959(2)Additional or supplemental pleadings and
Appeal and Error
Additional or supplemental
pleadings and withdrawal and
pleading anew
30Appeal and Error
30XVIReview
30XVI(H)Discretion of Lower Court
30k959Amended and Supplemental Pleadings
30k959(2)Additional or supplemental pleadings and
withdrawal and pleading anew
In deciding whether the trial court
abused its discretion in denying leave
to amend, the appellate court must
decide whether there is a reasonable
possibility the plaintiff could cure the
defect with an amendment; if the
court finds that an amendment could
cure the defect, it concludes that the
trial court abused its discretion and
reverses, but if not, no abuse of
discretion has occurred.
22
Appeal and Error
Burden of showing error
30Appeal and Error
30XVIReview
30XVI(G)Presumptions
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
6
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
30k901Burden of showing error
156k85Future events; promissory estoppel
On appeal from a judgment denying
leave to amend, the plaintiff has the
burden of proving that an amendment
would cure the defect in the
complaint.
23
In California, under the doctrine of
promissory estoppel, a promise
which
the
promisor
should
reasonably expect to induce action or
forbearance on the part of the
promisee or a third person and which
does induce such action or
forbearance is binding if injustice can
be avoided only by enforcement of
the promise.
Estoppel
Future events; promissory
estoppel
Mortgages
Wrongful Foreclosure
1 Cases that cite this headnote
25
156Estoppel
156IIIEquitable Estoppel
156III(B)Grounds of Estoppel
156k82Representations
156k85Future events; promissory estoppel
266Mortgages
266XIIWrongful Foreclosure
266k650In general
156Estoppel
156IIIEquitable Estoppel
156III(B)Grounds of Estoppel
156k82Representations
156k85Future events; promissory estoppel
Borrower
lacked
claim
for
promissory estoppel in wrongful
foreclosure action against bank, as
promise not to foreclose was made in
agreement
given
for
proper
consideration in the form of
borrower’s agreement to resume
making payments on promissory note
secured by deed of trust.
Promissory estoppel is a doctrine
which employs equitable principles
to satisfy the requirement that
consideration must be given in
exchange for the promise sought to
be enforced.
2 Cases that cite this headnote
26
24
Estoppel
Future events; promissory
estoppel
156Estoppel
156IIIEquitable Estoppel
156III(B)Grounds of Estoppel
156k82Representations
Estoppel
Future events; promissory
estoppel
Estoppel
Future events; promissory
estoppel
156Estoppel
156IIIEquitable Estoppel
156III(B)Grounds of Estoppel
156k82Representations
156k85Future events; promissory estoppel
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
7
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
The purpose of the doctrine of
promissory estoppel is to make a
promise binding, under certain
circumstances, without consideration
in the usual sense of something
bargained for and given in exchange;
if the promisee’s performance was
requested at the time the promisor
made his promise and that
performance was bargained for, the
doctrine is inapplicable.
27
Estoppel
Future events; promissory
estoppel
156Estoppel
156IIIEquitable Estoppel
156III(B)Grounds of Estoppel
156k82Representations
156k85Future events; promissory estoppel
A plaintiff cannot state a claim for
promissory estoppel when the
promise was given in return for
proper consideration; the claim
instead must be pleaded as one for
breach of the bargained-for contract.
2 Cases that cite this headnote
Attorneys and Law Firms
**471 Holland Law Firm, Oakland, George
Holland, Jr. for Plaintiff and Appellant.
Severson & Werson, San Francisco, Jan T.
Chilton for Defendants and Respondents.
Opinion
MARGULIES, J.
*260 Plaintiff Arlene Fontenot sued Wells
Fargo Bank, N.A. (Wells Fargo), Mortgage
Electronic Registration Systems, Inc.
(MERS), and three other entities after she
defaulted on a secured real estate loan and
lost the property to foreclosure. In the
fourth amended complaint, plaintiff alleged
the foreclosure was unlawful because Wells
Fargo had breached an agreement to forbear
from foreclosure, and MERS made an
invalid assignment of an interest in the
promissory note relating to the property.
Wells Fargo and MERS filed demurrers,
based in part on recorded documents they
contended demonstrated plaintiff’s claims to
be without factual foundation. The trial
court took judicial notice of the requested
documents and sustained the demurrers
without leave to amend. We affirm.
I. BACKGROUND
On April 30, 2010, plaintiff filed her fourth
amended complaint (complaint) against
Wells Fargo, MERS, and three other
defendants.1 The complaint alleged that in
2006, plaintiff gave defendant Alliance
Bancorp a $1 million promissory note,
secured by a deed of trust in the purchased
real property (property). MERS was
identified as the “nominee” of the lender in
the deed of trust. In November 2007,
plaintiff was served with a notice of default
by defendant NDEx West, LLC (NDEx),
although NDEx was not substituted as
trustee of the deed of trust until two months
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
8
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
later. In December 2007, MERS assigned
the deed of trust to defendant HSBC Bank
USA, N.A. (HSBC). Several months later,
Wells Fargo was alleged to have foreclosed
on the *261 property and sold it, although
the complaint otherwise contained no
explanation of Wells Fargo’s relationship to
the secured transaction.2
The complaint asserted a single cause of
action against all defendants for “Wrongful
Foreclosure [Negligence per Se].” Within
that cause of action, plaintiff alleged several
different imperfections in the foreclosure
process, including improper or ineffective
transfers of the promissory note and
security. Plaintiff sought an award of
damages, as well as an order voiding the
foreclosure sale and her debt.
The trial court had earlier sustained a
demurrer to the third amended complaint.3
In sustaining the demurrer without leave to
amend as to three of four causes of **472
action, the court found “allegations
concerning
improper
or
ineffective
assignments” to be “inconsistent with
recorded instruments or ... with the law
governing assignments.” The court allowed
amendment of the remaining cause of
action, ruling “[p]laintiff has alleged the
germ of a cause of action for wrongful
foreclosure by alleging that she had a
written forbearance agreement with [Wells
Fargo]. Since the agreement is only
effective if in writing, Plaintiff must attach
the written agreement....”
Responding to the latter portion of the
court’s order, the complaint alleged that in
February 2008 plaintiff entered into a
“SPECIAL
FORBEARANCE
AGREEMENT” (forbearance agreement)
with Wells Fargo. Mindful of the court’s
instruction, plaintiff attached a copy to the
complaint. The forbearance agreement
stated that Wells Fargo would suspend
further debt enforcement proceedings in
return for plaintiff’s making a series of five
monthly payments, beginning in February
2008. The first four payments were between
$8,000 and $8,500, while the last payment
was a balloon payment of over $59,000. If
plaintiff failed to make the required
payments, Wells Fargo was entitled to
terminate the forbearance agreement and
reinstitute foreclosure proceedings.
Plaintiff alleged she made the first payment
under the forbearance agreement as
scheduled. Soon thereafter, on March 10,
2008, she received a letter from Wells
Fargo (March letter) “stating that the
monthly mortgage payments were being
reduced effective May 1, 2008 from
$7,395.82 to $4,895.82 for the next six
months.” The complaint alleged plaintiff
made two more of the payments required by
the forbearance agreement, but in May 2008,
she *262 “ accepted the offer” contained in
the March letter and submitted a payment of
$4,895.82. Wells Fargo refused to accept
the payment as satisfaction of plaintiff’s
obligations and foreclosed in August 2008.4
Plaintiff did not attach a copy of the March
letter to the complaint.
Wells Fargo filed a demurrer, arguing the
complaint failed to state a claim and was
uncertain. The court sustained the demurrer
without leave to amend because it failed to
demonstrate plaintiff complied with the
forbearance agreement. The court rejected
any reliance by plaintiff on the March letter
as an amendment of the forbearance
agreement because plaintiff had not attached
a copy of the letter to the complaint. The
court noted it had already rejected plaintiff’s
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
9
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
other alleged grounds for her cause of action
against Wells Fargo and reaffirmed those
rulings.
MERS also filed a demurrer. With respect to
MERS, the complaint alleged MERS was
not the “true” beneficiary under the deed of
trust, never had ownership of the promissory
note, and never held an assignable interest in
the note or deed of trust. As a result, any
assignment of the note by MERS to HSBC
was invalid. In addition, plaintiff alleged the
“trustee substitution” **473 was “invalid
due to the fact that the transmission of any
interest in Plaintiff’s note from MERS is
void.” In its demurrer, MERS argued
plaintiff’s allegations were contradicted by
the judicially noticeable documents or
otherwise legally flawed.
The MERS request for judicial notice
attached a series of recorded documents
related to the property, such as two deeds of
trust, an assignment of a deed of trust, and
documents required by the nonjudicial
foreclosure procedure, each bearing
notarized signatures and the recorder’s
stamp of Alameda County. The first deed of
trust, securing a debt of $1 million,
contained a paragraph stating: “ ‘MERS’ is
Mortgage Electronic Registration Systems,
Inc. MERS is a separate corporation that is
acting solely as a nominee for Lender and
Lender’s successors and assigns. MERS is
the beneficiary under this Security
Instrument.” A later paragraph entitled,
“TRANSFER OF RIGHTS IN THE
PROPERTY,” confirms, “The beneficiary of
this Security Instrument is MERS (solely as
nominee for Lender and *263 Lender’s
successors and assigns) and the successors
and assigns of MERS.... [¶] ... [¶] ...
Borrower understands and agrees that
MERS holds only legal title to the interests
granted by Borrower in this Security
Instrument, but, if necessary to comply with
law or custom, MERS (as nominee for
Lender and Lender’s successors and assigns)
has the right: to exercise any or all of those
interests, including, but not limited to, the
right to foreclose and sell the Property; and
to take any action required of Lender,
including, but not limited to, releasing and
canceling this Security Instrument.”5
A notice of default was recorded on
November 9, 2007, by “NDEx West, LLC,
as Agent for Beneficiary.” Nearly two
months later, on December 27, 2007, MERS
recorded an assignment of the first deed of
trust to “HSBC BANK USA ... AS
TRUSTEE FOR NOMURA ASSET
ACCEPTANCE
CORPORATION
MORTGAGE
PASS–THROUGH
CERTIFICATES.”
This
assignment
purported to assign “all beneficial interest”
under the first deed of trust as well as the
note and all monies due under the note.
Several weeks later, HSBC, listing Wells
Fargo as “its attorney in fact,” recorded a
substitution of trustee under the first deed of
trust, naming NDEx as the new trustee.
NDEx recorded a notice of trustee’s sale on
February 15, 2008, and the deed reflecting
the sale of the property was recorded in
August. Although she opposed the taking of
judicial notice, plaintiff did not contest the
authenticity of these documents.
The court granted MERS’s request for
judicial notice and sustained its demurrer
without leave to amend, noting, “The only
apparent grounds for suing MERS are the
allegations that the deed of trust improperly
named MERS as nominee and beneficiary,
and that there was no physical delivery of
the note to HSBC.... Those claims do not
state a cause of action against MERS as a
matter of law.”
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
10
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
II. DISCUSSION
Plaintiff raises four primary grounds for
reversing the trial court’s rulings sustaining
the two demurrers. With respect to MERS,
she argues the trial court erred in taking
judicial notice of the various recorded
documents and the purported assignment of
the note by MERS to HSBC in the
assignment of deed of trust was invalid
because MERS did not possess an interest
**474 in the note. Because the assignment
of the note to HSBC was invalid, plaintiff
argues, Wells Fargo had no authority to
foreclosure. With respect to Wells Fargo,
she argues the trial court erred because she
stated a claim either for breach of the
forbearance agreement, as amended by the
March letter, or promissory estoppel.
1 *264 “On review from an order sustaining
a demurrer, ‘we examine the complaint de
novo to determine whether it alleges facts
sufficient to state a cause of action under
any legal theory, such facts being assumed
true for this purpose. [Citations.]’ [Citation.]
We may also consider matters that have
been judicially noticed.” (Committee for
Green Foothills v. Santa Clara County Bd.
of Supervisors, supra, 48 Cal.4th at p. 42,
105 Cal.Rptr.3d 181, 224 P.3d 920.)
A. The Claim Against MERS
1. Judicial Notice
2 The trial court’s ruling sustaining the
MERS demurrer was based on recorded
documents that clarified and, to a degree,
contradicted plaintiff’s allegations regarding
MERS’s role in the foreclosure. Plaintiff
contends the trial court erred in taking
judicial notice of these documents. We
review the trial court’s ruling on the request
for judicial notice for abuse of discretion.
(Evans v. California Trailer Court, Inc.
(1994) 28 Cal.App.4th 540, 549, 33
Cal.Rptr.2d 646.)
3 4 “ ‘ “Judicial notice is the recognition and
acceptance by the court, for use by the trier
of fact or by the court, of the existence of a
matter of law or fact that is relevant to an
issue in the action without requiring formal
proof of the matter.” ’ ” (Poseidon
Development, Inc. v. Woodland Lane
Estates, LLC (2007) 152 Cal.App.4th 1106,
1117, 62 Cal.Rptr.3d 59 (Poseidon ).) When
ruling on a demurrer, “[a] court may take
judicial notice of something that cannot
reasonably be controverted, even if it
negates an express allegation of the
pleading.” (Ibid.) Accordingly, Evidence
Code section 452, subdivisions (c) and (h),
respectively, permit a court, in its discretion,
to take judicial notice of “[o]fficial acts ... of
any state of the United States” and “[f]acts
and propositions that are not reasonably
subject to dispute and are capable of
immediate and accurate determination by
resort to sources of reasonably indisputable
accuracy.”
Pursuant to these provisions, courts have
taken judicial notice of the existence and
recordation of real property records,
including deeds of trust, when the
authenticity of the documents is not
challenged. (E.g., Alfaro v. Community
Housing Improvement System & Planning
Assn., Inc. (2009) 171 Cal.App.4th 1356,
1367, fn. 8, 1382, 124 Cal.Rptr.3d 271;
Evans v. California Trailer Court, Inc.,
supra, 28 Cal.App.4th at p. 549, 33
Cal.Rptr.2d 646; Cal–American Income
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
11
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
Property Fund II v. County of Los Angeles
(1989) 208 Cal.App.3d 109, 112, fn. 2, 256
Cal.Rptr. 21.) The official act of recordation
and the common use of a notary public in
the execution of such documents *265
assures their reliability, and the maintenance
of the documents in the recorder’s office
makes their existence and text capable of
ready confirmation, thereby placing such
documents beyond reasonable dispute.
In addition, courts have taken judicial notice
not only of the existence and recordation of
recorded documents but also of a variety of
matters that can be deduced from the
documents. In Poseidon, for example, the
court affirmed the trial court’s taking
judicial notice, in sustaining a demurrer, of
the parties, dates, and legal consequences of
a series of recorded documents relating to a
real estate transaction. **475 (Poseidon,
supra, 152 Cal.App.4th at pp. 1117–1118,
62 Cal.Rptr.3d 59.) Although the court
recognized that it would have been improper
to take judicial notice of the truth of
statements of fact recited within the
documents, the trial court was permitted to
take judicial notice of the legal effect of the
documents’ language when that effect was
clear. (Ibid.) Similarly, in McElroy v. Chase
Manhattan Mortgage Corp. (2005) 134
Cal.App.4th 388, 36 Cal.Rptr.3d 176, the
court took judicial notice of the recordation
of a notice of default under a deed of trust,
the date of the notice’s recording, and the
amount stated as owing in the notice for the
purpose of demonstrating the plaintiffs had
notice of the amount claimed to be owing
and the opportunity to cure a defective
tender. (Id. at p. 394, 36 Cal.Rptr.3d 176.)
Judicial notice of the boundaries of a parcel
of land on the basis of the property
description in a recorded grant deed has also
been approved. (Lockhart v. MVM, Inc.
(2009) 175 Cal.App.4th 1452, 1460, 97
Cal.Rptr.3d 206.)
5 6 Strictly speaking, a court takes judicial
notice of facts, not documents. (Evid.Code,
§ 452, subds. (g), (h).) When a court is
asked to take judicial notice of a document,
the propriety of the court’s action depends
upon the nature of the facts of which the
court takes notice from the document. As
noted in Poseidon, for example, it was
proper for the trial court to take judicial
notice of the dates, parties, and legally
operative language of a series of recorded
documents, but it would have been improper
to take judicial notice of the truth of various
factual representations made in the
documents.
(Poseidon,
supra,
152
Cal.App.4th at pp. 1117–1118, 62
Cal.Rptr.3d 59; see similarly Herrera v.
Deutsche Bank National Trust Co. (2011)
196 Cal.App.4th 1366, 1375, 127
Cal.Rptr.3d 362 (Herrera ).) Taken together,
the decisions discussed above establish that
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. From this, the
court may deduce and rely upon the legal
effect of the recorded document, when that
effect is clear from its face.
*266 Plaintiff concedes the trial court could
take judicial notice of recorded documents,
but she argues the court improperly took
judicial notice of the truth of matters stated
in the documents, citing Mangini v. R.J.
Reynolds Tobacco Co. (1994) 7 Cal.4th
1057, 31 Cal.Rptr.2d 358, 875 P.2d 73
(Mangini ) (overruled on other grounds in In
re Tobacco Cases II (2007) 41 Cal.4th 1257,
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
12
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
1276, 63 Cal.Rptr.3d 418, 163 P.3d 106). In
Mangini, the court held that while it could
take judicial notice of the issuance of a
report by the United States Surgeon General
regarding the health consequences of
smoking, it could not take judicial notice of
the truth of the conclusions stated in the
report. (Id. at pp. 1063–1064, 31 Cal.Rptr.2d
358, 875 P.2d 73.) Similarly, the court
refused to take judicial notice of the truth of
matters reported in newspaper articles. (Id.
at p. 1065, 31 Cal.Rptr.2d 358, 875 P.2d
73.) As is evident from this summary, the
documents considered in Mangini were not
the type of legally operative documents
featured
here.
Rather,
they
were
fundamentally informative documents, and
the parties sought judicial notice of the facts
contained in the documents without
demonstrating the facts were “not
reasonably subject to dispute.” (Evid.Code,
§ 452, subd. (h).) The other cases cited by
plaintiff, such as In re Noreen G. (2010) 181
Cal.App.4th 1359, 1389, footnote 13, 105
Cal.Rptr.3d 521 and **476 C.R. v. Tenet
Healthcare Corp. (2009) 169 Cal.App.4th
1094, 1103–1104, 87 Cal.Rptr.3d 424, are
not different.6
Despite her general objection, plaintiff
contests the taking of judicial notice of only
one specific fact—that MERS was the
beneficiary of the first deed of trust, which
the court noticed on the basis of MERS’s
designation as beneficiary in the document.
Contrary to plaintiff’s argument, MERS’s
status as beneficiary was not the type of fact
that is generally an improper subject of
judicial notice under Mangini, since its
status was not a matter of fact existing apart
from the document itself. Rather, MERS
was the beneficiary under the deed of trust
because, as a legally operative document,
the deed of trust designated MERS as the
beneficiary. Given this designation, MERS’s
status was not reasonably subject to dispute.
The other matters noticed by the trial court
similarly could be inferred from the text or
legal effect of the documents themselves,
needing no outside confirmation. We find no
abuse of discretion.
Just prior to argument, plaintiff forwarded
the recently published decision, Herrera,
supra, 196 Cal.App.4th 1366, 127
Cal.Rptr.3d 362, in which the court reversed
a grant of summary judgment on the ground
the trial court improperly took judicial *267
notice of statements made within recorded
documents. (Id. at pp. 1375–1376, 127
Cal.Rptr.3d 362.) Herrera is not inconsistent
with our decision. In Herrera, the
defendants sought judicial notice of the truth
of recited facts within the recorded
documents—for example, that a particular
party “ ‘is the present beneficiary under’ ” a
particular deed of trust. (Id. at p. 1375, 127
Cal.Rptr.3d 362.) As the court noted, this is
the type of statement found in Poseidon to
be ineligible for judicial notice. (Herrera, at
p. 1375, 127 Cal.Rptr.3d 362.) In contrast,
the facts of which the trial court here took
judicial notice arose from the legal effect of
the documents, rather than any statements of
fact within them.7 (Ibid.)
2. Plaintiff’s Claim
a. Background
Plaintiff’s claim against MERS challenges
an aspect of the “MERS System,” a method
devised by the mortgage banking industry to
facilitate the securitization of real property
debt instruments. As described in Mortgage
Electronic Registration Systems v. Nebraska
Dept. of Banking & Finance (2005) 270
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
13
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
Neb. 529, 704 N.W.2d 784, MERS is a
private corporation that administers a
national registry of real estate debt interest
transactions. Members of the MERS System
assign limited interests in the real property
to MERS, which is listed as a grantee in the
official records of local governments, but
the members retain the promissory notes
**477 and mortgage servicing rights. The
notes may thereafter be transferred among
members without requiring recordation in
the public records. (Id. at p. 785.)
Ordinarily, the owner of a promissory note
secured by a deed of trust is designated as
the beneficiary of the deed of trust. (11
Thompson on Real Property (2d ed. 1998) §
94.02(b)(7)(i), p. 346.) Under the MERS
System, however, MERS is designated as
the beneficiary in deeds of trust, acting as
“nominee” for the lender, and granted the
authority to exercise legal rights of the
lender. This aspect of the system has come
under attack in a number of state and federal
decisions across the country, under a variety
of legal theories. The decisions have
generally, although by no means universally,
found that the use of MERS does not
invalidate a foreclosure sale that is
otherwise substantively and procedurally
proper.
*268 Our Courts of Appeal have only
recently addressed MERS’s role, but both
published decisions have come down on the
side of MERS.8 In Gomes v. Countrywide
Home Loans, Inc. (2011) 192 Cal.App.4th
1149, 121 Cal.Rptr.3d 819 (Gomes ), the
plaintiff sought to prevent foreclosure on
his home. He sued MERS, among others,
alleging he was unaware of the identity of
the owner of his promissory note, but
believed the owner had not authorized
MERS to proceed with the foreclosure. The
plaintiff sought to enjoin foreclosure in the
absence of proof that MERS was authorized
by the note’s owner to proceed. (Id. at p.
1152, 121 Cal.Rptr.3d 819.) The court
rejected the claim on both procedural and
substantive grounds. With respect to the
former, the court concluded the “
‘comprehensive’ ” statutory framework
regulating nonjudicial foreclosure, Civil
Code sections 2924 through 2924k, did not
require the agent of a beneficial owner, such
as MERS, to demonstrate that it was
authorized by the owner before proceeding
with foreclosure, at least in the absence of a
factual allegation suggesting the agent
lacked authority. (Gomes, at pp. 1155–1156,
121 Cal.Rptr.3d 819.) As the court reasoned,
Civil Code section 2924, subdivision (a)(1),
which states that a trustee, mortgagee, or
beneficiary, or an agent of any of them, may
initiate foreclosure, does not include a
requirement that an agent demonstrate
authorization by its principal. (Gomes, at pp.
1155–1156, 121 Cal.Rptr.3d 819.) The court
also found no substantive basis for the
challenge, noting, as here, the plaintiff had
agreed in the deed of trust that MERS could
proceed with foreclosure and nonjudicial
sale in the event of a default. Because the
deed of trust did not require MERS to
provide
further
assurances
of
its
authorization prior to proceeding with
foreclosure, the plaintiff was not entitled to
demand such assurances. (Id. at p. 1157, 121
Cal.Rptr.3d 819.)
A different type of MERS challenge was
addressed in Ferguson v. Avelo Mortgage,
**478 LLC (2011) 195 Cal.App.4th 1618,
126 Cal.Rptr.3d 586 (Ferguson ). The
Ferguson plaintiffs were tenants in a home
sold at a nonjudicial foreclosure sale.
Originally, MERS was designated as a
nominee and beneficiary in the deed of trust.
On August 3, Quality Loan Service
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14
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
Corporation (Quality) recorded a notice of
default, although there was no indication in
the public record of Quality’s authority to
act with respect to the property at the time.
The defendant, Avelo Mortgage, LLC
(Avelo), had executed a substitution of
trustee designating Quality as trustee the
prior day, *269 August 2, but that
substitution was not recorded until months
later, on November 9. Further, at the time
Avelo executed the substitution, there was
similarly no indication in the public record
of its authority to act. Only several weeks
later, on August 22, did MERS assign its
interest under the deed of trust to Avelo.
Notice of the trustee’s sale was delivered on
November 4 and recorded the same day as
the substitution of trustee designating
Quality, November 9. The trustee’s sale
occurred in July of the following year. (Id. at
p. 1621, 126 Cal.Rptr.3d 586.)
Affirming the grant of a demurrer, the court
initially addressed the issue of tender,
concluding that the plaintiffs were required
to allege tender of the amount due under the
note when bringing an action to void a
nonjudicial foreclosure sale. (Ferguson,
supra, 195 Cal.App.4th at p. 1624, 126
Cal.Rptr.3d 586.) It then turned to two
arguments concerning MERS’s role: MERS
lacked the power to foreclose because it was
not the holder of the underlying promissory
note, and the sale was invalid because the
foreclosing parties did not have authority to
proceed as a result of the irregularities in the
documentation. Citing a series of federal
district court decisions, the court first held
that MERS was entitled to initiate
foreclosure despite having no ownership
interest in the promissory note because it
was the beneficiary under the deed of trust.
(Id. at pp. 1626–1627, 126 Cal.Rptr.3d 586.)
Turning to the second issue, the court agreed
with the plaintiffs that the notice of default
was defective because Avelo lacked legal
authority to execute a substitution of trustee
until it had been assigned MERS’s interest
under the deed of trust. The court found the
notice of sale valid under Civil Code section
2934a, subdivision (b), however, because
the notice of sale was not recorded prior to
the substitution of trustee. (Ferguson, at p.
1628 & fn. 5, 126 Cal.Rptr.3d 586.) Given
the three-month cure period between the
recording of the notice of default and notice
of sale and the long delay after the
recordation of the substitution of trustee
before the sale was concluded, the court
declined to invalidate the foreclosure on the
basis of the irregular documentation. (Ibid.)
b. Plaintiff’s Allegations
7 With that background, we address
plaintiff’s claims. Referring to the fact that
the assignment of the deed of trust purported
to assign to HSBC both MERS’s interest in
the deed of trust and the underlying note,
plaintiff explains “the gravamen of [her]
claim against MERS was that it had
wrongfully assigned the Note and Deed of
Trust to Defendant HSBC” because MERS
lacked the authority to make an assignment
of the underlying promissory note.
8 9 The complaint contains two allegations
regarding the MERS’s purported lack of
authority to assign the note. First, the
complaint alleges defendants “bear the
burden of proving” a proper assignment
occurred, and *270 they “lack evidence
sufficient to prove a valid assignment.” As
so stated, the claim fails because MERS did
not bear the burden of **479 proving a valid
assignment. The nonjudicial foreclosure
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
15
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
statutes are a “comprehensive” scheme
designed “(1) to provide the creditor/
beneficiary with a quick, inexpensive and
efficient remedy against a defaulting
debtor/trustor;
(2)
to
protect
the
debtor/trustor from wrongful loss of the
property; and (3) to ensure that a properly
conducted sale is final between the parties
and conclusive as to a bona fide purchaser.”
(Moeller v. Lien (1994) 25 Cal.App.4th 822,
830, 30 Cal.Rptr.2d 777.) As a result, a
nonjudicial foreclosure sale is presumed to
have been conducted regularly, and the
burden of proof rests with the party
attempting to rebut this presumption.
(Melendrez v. D & I Investment, Inc. (2005)
127 Cal.App.4th 1238, 1258, 26 Cal.Rptr.3d
413 [“It is the burden of the party
challenging the trustee’s sale to prove such
irregularity and thereby overcome the
presumption of the sale’s regularity”];
Knapp v. Doherty (2004) 123 Cal.App.4th
76, 86, fn. 4, 20 Cal.Rptr.3d 1; Wolfe v.
Lipsy (1985) 163 Cal.App.3d 633, 639, 209
Cal.Rptr. 801, disapproved on other grounds
in Droeger v. Friedman, Sloan & Ross
(1991) 54 Cal.3d 26, 36, 283 Cal.Rptr. 584,
812 P.2d 931.) Given the presumption of
regularity, if plaintiff contended the sale was
invalid because HSBC had no authority to
conduct the sale, the burden rested with
plaintiff affirmatively to plead facts
demonstrating the impropriety.
In contending the burden rested with MERS
to demonstrate a valid assignment, plaintiff
cites such cases as Neptune Society Corp. v.
Longanecker (1987) 194 Cal.App.3d 1233,
240 Cal.Rptr. 117, which stands for the
general principle that the party asserting a
right under an assigned instrument bears the
burden of demonstrating the assignment. (Id.
at p. 1242, 240 Cal.Rptr. 117.) While this
may be a correct statement of law in an
action to collect on an assigned debt, such
actions are not subject to the presumption of
regularity
afforded
the
nonjudicial
foreclosure process. As a result, these
decisions are not persuasive authority in this
context.
10 11 12 Second, the complaint alleges
MERS lacked the authority to assign the
note because it was merely a nominee of the
lender and had no interest in the note.
Contrary to plaintiff’s claim, the lack of a
possessory interest in the note did not
necessarily prevent MERS from having the
authority to assign the note. While it is true
MERS had no power in its own right to
assign the note, since it had no interest in the
note to assign, MERS did not purport to act
for its own interests in assigning the note.
Rather, the assignment of deed of trust states
that MERS was acting as nominee for the
lender, which did possess an assignable
interest. A “nominee” is a person or entity
designated to act for another in a limited
role—in effect, an agent. (Born v. Koop
(1962) 200 Cal.App.2d 519, 528, 19
Cal.Rptr. 379; Cisco v. Van Lew (1943) 60
Cal.App.2d 575, 583–584, 141 P.2d 433.)
The extent of MERS’s authority as a
nominee was defined by its agency
agreement with the lender, and *271
whether MERS had the authority to assign
the lender’s interest in the note must be
determined by reference to that agreement.
(See, e.g., Van’t Rood v. County of Santa
Clara (2003) 113 Cal.App.4th 549, 571, 6
Cal.Rptr.3d 746 [agency typically arises by
express agreement]; Anderson v. Badger
(1948) 84 Cal.App.2d 736, 743, 191 P.2d
768 [existence and extent of agent’s duties
are determined by the agreement between
agent and principal]; Civ.Code, § 2315
[agent has such authority as principal
confers upon agent].) Accordingly, the
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
16
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
allegation that MERS was merely a nominee
is insufficient to demonstrate that MERS
lacked authority **480 to make a valid
assignment of the note on behalf of the
original lender.9
13 14 Plaintiff also argues any purported
assignment by MERS was invalid under the
common law of secured transactions. Her
argument rests on the general principle that
because the security for a debt is “a mere
incident of the debt or obligation which it is
given to secure” (Hayward Lbr. & Inv. Co.
v. Naslund (1932) 125 Cal.App. 34, 39, 13
P.2d 775), the assignment of an interest in
the security for a debt is a nullity in the
absence of an assignment of the debt itself.
(E.g., Kelley v. Upshaw (1952) 39 Cal.2d
179, 192, 246 P.2d 23; 4 Witkin, Summary
of Cal. Law (10th ed. 2005) Security
Transactions in Real Property, § 105, p.
899.) The assignment of the deed of trust,
however, expressly stated that MERS
assigned its interest in the deed of trust
“[t]ogether with the note or notes therein
described or referred to.”10 Accordingly, to
plead a claim on this ground plaintiff was
required to allege this assignment to HSBC
was invalid. Because, as discussed above,
plaintiff failed adequately to plead such
invalidity, she failed to state a cause of
action for wrongful foreclosure on the
ground HSBC did not receive an assignment
of both the note and its security.
15 There is a further, overriding basis for
rejecting a claim based solely on the alleged
invalidity of the MERS assignment.
Plaintiff’s cause of action ultimately seeks to
demonstrate that the nonjudicial foreclosure
sale was invalid because HSBC lacked
authority to foreclose, never having received
a proper assignment of the debt. In order to
allege such a claim, it was not enough for
plaintiff to allege that MERS’s purported
assignment of the note in the assignment of
deed of trust was ineffective. Instead,
plaintiff was *272 required to allege that
HSBC did not receive a valid assignment of
the debt in any manner. Plaintiff rests her
argument on the documents in the public
record, but assignments of debt, as opposed
to assignments of the security interest
incident to the debt, are commonly not
recorded. The lender could readily have
assigned the promissory note to HSBC in an
unrecorded document that was not disclosed
to plaintiff.11 To state a claim, plaintiff was
required to allege not only that the purported
MERS assignment was invalid, but also that
HSBC did not receive an assignment of the
debt in any other manner. There is no such
allegation.
We also note a plaintiff in a suit for
wrongful foreclosure has generally been
required to demonstrate the alleged
imperfection in the foreclosure process was
prejudicial to the plaintiff’s interests. **481
(Melendrez v. D & I Investment, Inc., supra,
127 Cal.App.4th at p. 1258, 26 Cal.Rptr.3d
413; Knapp v. Doherty, supra, 123
Cal.App.4th at p. 86, fn. 4, 20 Cal.Rptr.3d 1
[“A nonjudicial foreclosure sale is
presumed to have been conducted regularly
and fairly; one attacking the sale must
overcome this common law presumption ‘by
pleading and proving an improper procedure
and the resulting prejudice ’ ”], italics
added; Lo v. Jensen (2001) 88 Cal.App.4th
1093, 1097–1098, 106 Cal.Rptr.2d 443
[collusion resulted in inadequate sale price];
Angell v. Superior Court (1999) 73
Cal.App.4th 691, 700, 86 Cal.Rptr.2d 657
[failure to comply with procedural
requirements must cause prejudice to
plaintiff].) Prejudice is not presumed from
“mere irregularities” in the process. (Meux v.
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17
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
Trezevant (1901) 132 Cal. 487, 490, 64 P.
848.) Even if MERS lacked authority to
transfer the note, it is difficult to conceive
how plaintiff was prejudiced by MERS’s
purported assignment, and there is no
allegation to this effect. Because a
promissory note is a negotiable instrument, a
borrower must anticipate it can and might be
transferred to another creditor. As to
plaintiff, an assignment merely substituted
one creditor for another, without changing
her obligations under the note. Plaintiff
effectively concedes she was in default, and
she does not allege that the transfer to HSBC
interfered in any manner with her payment
of the note (see, e.g., Munger v. Moore
(1970) 11 Cal.App.3d 1, 7–8, 89 Cal.Rptr.
323 [failure by lender to accept timely
tender] ), nor that the original lender would
have refrained from foreclosure under the
circumstances presented. If MERS indeed
lacked authority to make the assignment, the
true victim was not plaintiff but the original
lender, which would have suffered the
unauthorized loss of a $1 million promissory
note.
16 17 Finally, plaintiff contends the deed of
trust was ambiguous because it designated
MERS as both the “ ‘nominee for the
beneficiary’ ” and as the *273 “beneficiary.”
An entity cannot be, plaintiff argues, both an
agent and a principal. The record does not
support the claimed ambiguity. Contrary to
plaintiff’s assertion, the deed of trust did not
designate MERS as both beneficiary of the
deed of trust and nominee for the
beneficiary; rather, it states that MERS is the
beneficiary, acting as a nominee for the
lender. There is nothing inconsistent in
MERS’s being designated both as the
beneficiary and as a nominee, i.e., agent, for
the lender. The legal implication of the
designation is that MERS may exercise the
rights and obligations of a beneficiary of the
deed of trust, a role ordinarily afforded the
lender, but it will exercise those rights and
obligations only as an agent for the lender,
not for its own interests. Other statements in
the deed of trust regarding the role of MERS
are consistent with this interpretation, and
there is nothing ambiguous or unusual about
the legal arrangement. Plaintiff’s argument
appears to be premised on the unstated
assumption that only the owner of the
promissory note can be designated as the
beneficiary of a deed of trust, but she cites
no legal authority to support that premise.12
B. The Claim Against Wells Fargo
Plaintiff contends the trial court erred in
sustaining Wells Fargo’s demurrer because
she adequately alleged either a claim for
wrongful foreclosure, based on Wells
**482
Fargo’s
refusal
to
accept
performance
under
the
forbearance
agreement as amended by the March letter,
or a claim for promissory estoppel. The trial
court declined to consider the allegations
regarding the March letter because plaintiff
did not attach a copy of the letter to the
complaint.
18 Plaintiff argues that under the ordinary
rules of pleading, she was entitled to plead
the legal effect of the March letter without
attaching a copy to the complaint. (E.g.,
Construction Protective Services, Inc. v. TIG
Specialty Ins. Co. (2002) 29 Cal.4th 189,
198–199, 126 Cal.Rptr.2d 908, 57 P.3d
372.) While this is true as a general
principle, the argument fails to take account
of the trial court’s ruling on the demurrer to
the third amended complaint, which
expressly granted plaintiff leave to amend
on condition she attach a copy of the
forbearance agreement to the amended
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
18
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
pleading. Because a trial court is entitled to
grant leave to amend “upon any terms as
may be just” (Code Civ. Proc., § 472a, subd.
(c)), the ordinary rules of pleading did not
apply in these circumstances.
Whether to grant leave to amend under Code
of Civil Procedure, section 472a is entrusted
to the sound discretion of the trial court, and
we *274 review the trial court’s decision for
abuse of discretion. (CAMSI IV v. Hunter
Technology Corp. (1991) 230 Cal.App.3d
1525, 1538, 282 Cal.Rptr. 80.) While
plaintiff argues the trial court was without
power to impose a “higher pleading
standard,” we find no abuse of discretion in
the trial court’s conditioning leave to amend
on attachment of the forbearance agreement.
Plaintiff had already filed three versions of
the complaint at the time the trial court
entered its order, each one unsuccessful in
stating a cause of action. Despite the
obvious nature of a claim for breach of a
forbearance agreement, it was not until the
third iteration that plaintiff suggested the
possibility of such a cause of action. Under
those circumstances, the trial court was
justified in requiring plaintiff to attach a
copy of the agreement, thereby allowing the
legal adequacy of the purported agreement
to be tested on demurrer and avoiding
further delay and unnecessary motion
practice. The ruling placed little burden on
plaintiff, since she presumably had access to
the written agreement on which she
purported to premise her claim.13
Plaintiff also argues the court’s order
sustaining the demurrer to the third amended
complaint did not require her to attach a
copy of the March letter because it called
only for attachment of the forbearance
agreement. By claiming the March letter
constituted a written amendment to the
terms of the forbearance agreement,
however, plaintiff effectively made it a part
of the forbearance agreement. Further,
because plaintiff conceded she did not
comply with the terms of the forbearance
agreement itself, attaching only that
document served little purpose. The trial
court did not abuse its discretion in
concluding its order requiring attachment of
the forbearance agreement included any
written amendments on which plaintiff
intended to rely.
19 20 21 22 Plaintiff argues she should have
been granted leave to amend, presumably
**483 to attach a copy of the March letter.
In deciding whether the trial court abused its
discretion in denying leave to amend, “we
must decide whether there is a reasonable
possibility the plaintiff could cure the defect
with an amendment. [Citation.] If we find
that an amendment could cure the defect, we
conclude that the trial court abused its
discretion and we reverse; if not, no abuse of
discretion has occurred. [Citation.] The
plaintiff has the burden of proving that an
amendment would cure the defect.
[Citation.]” (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081, 6
Cal.Rptr.3d 457, 79 P.3d 569.) We find no
abuse
because,
notwithstanding
the
allegations of the complaint and her present
argument, plaintiff provided the trial court
with no reason to *275 believe the March
letter constituted an amendment to the
forbearance agreement. To do so, it was
necessary only for plaintiff to submit a copy
of the March letter with her opposition to
Wells Fargo’s demurrer, thereby permitting
the court to evaluate the text of the
purported amendment and determine
whether it could possibly provide a
foundation for her allegations. By declining
to submit a copy to the trial court, plaintiff
failed in carrying her burden to demonstrate
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
19
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
a “reasonable possibility” she could cure the
defect in her cause of action.14
23 24 25 26 27 Finally, plaintiff contends
she adequately pleaded a claim for
promissory estoppel, based on an alleged
promise by Wells Fargo not to foreclose.
“In California, under the doctrine of
promissory estoppel, ‘A promise which the
promisor should reasonably expect to induce
action or forbearance on the part of the
promisee or a third person and which does
induce such action or forbearance is binding
if injustice can be avoided only by
enforcement of the promise....’ [Citations.]
Promissory estoppel is ‘a doctrine which
employs equitable principles to satisfy the
requirement that consideration must be
given in exchange for the promise sought to
be enforced.’ ” (Kajima/Ray Wilson v. Los
Angeles
County
Metropolitan
Transportation Authority (2000) 23 Cal.4th
305, 310, 96 Cal.Rptr.2d 747, 1 P.3d 63.)
“The purpose of this doctrine is to make a
promise
binding,
under
certain
circumstances, without consideration in the
usual sense of something bargained for and
given in exchange. If the promisee’s
performance was requested at the time the
promisor made his promise and that
performance was bargained for, the doctrine
is inapplicable.” (Youngman v. Nevada
Irrigation Dist. (1969) 70 Cal.2d 240, 249,
74 Cal.Rptr. 398, 449 P.2d 462.)
Accordingly, a plaintiff cannot state a claim
for promissory estoppel when the promise
was given in return for proper consideration.
The claim instead must be pleaded as one
for breach of the bargained-for contract.
(Raedeke v. Gibraltar Savings & Loan Assn.
(1974) 10 Cal.3d 665, 672–673, 111
Cal.Rptr. 693, 517 P.2d 1157; see Garcia v.
World Savings, FSB (2010) 183 Cal.App.4th
1031, 1040–1041, 107 Cal.Rptr.3d 683
[promissory estoppel appropriate only where
no consideration for promise].) Here, the
only alleged promise not to foreclose is
contained in the forbearance agreement.
Because Wells Fargo’s promise not to
foreclose in the forbearance agreement was
given for proper consideration, in the form
of plaintiff’s agreement **484 to resume
making payments on the promissory note,
the complaint cannot state a claim for
promissory estoppel.
*276 III. DISPOSITION
The judgment of the trial court is affirmed.
We concur:
BANKE, J.
MARCHIANO,
P.J.,
and
Parallel Citations
198 Cal.App.4th 256, 11 Cal. Daily Op.
Serv. 10,304, 2011 Daily Journal D.A.R.
12,253
Footnotes
The three other defendants were eventually dismissed and do not figure in this appeal.
1
2
Defendants’ brief states, without citation to the record, that Wells Fargo “[took] over the servicing of [plaintiff’s] loan.” A
substitution of trustee recorded with respect to the property designated Wells Fargo as the “attorney in fact” for HSBC.
3
The appellate record contains rulings by the trial court sustaining demurrers to the second and third amended complaints, but it
does not include any pleadings filed in connection with these earlier proceedings.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
20
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
4
Wells Fargo speculates the March letter was a standard letter announcing a periodic adjustment in the interest rate of the
underlying promissory note, sent independently of the forbearance agreement and not intended as an offer to modify that
agreement. Plaintiff’s own allegations raise a question about her claim the March letter was intended as an offer to amend the
forbearance agreement, since she quotes the letter as reducing her monthly payments “from $7,395.82 to $4,895.82.” None of
monthly amounts due under the forbearance agreement was $7,395.82. For our purposes, it does not matter. We accept the truth
of the complaint’s allegations in reviewing the court’s order sustaining the Wells Fargo demurrer. (Committee for Green
Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, 105 Cal.Rptr.3d 181, 224 P.3d 920.)
5
A second deed of trust, entered into simultaneously with the first and securing a debt of $187,500, contained similar language.
The second deed of trust is not at issue here.
6
One case cited by plaintiff, Abernathy Valley, Inc. v. County of Solano (2009) 173 Cal.App.4th 42, 54, footnote 6, 92 Cal.Rptr.3d
459, appears to differ with the weight of California authority. That case declined to take judicial notice of deeds, judgments, and
indentures “as evidence of actual conveyances” because such use would require accepting the “truth of the facts stated therein.”
(Ibid.) Because its holding is stated in a conclusory manner, the exact reasoning of the decision is unclear, and we do not find it to
be persuasive authority in this context.
7
Herrera also found the trial court improperly took judicial notice of the legal effect of an assignment of a particular deed of trust,
but the basis of its holding was the lack of proof in the record that the party making the assignment had the authority to do so—in
other words, that the record did not contain evidence of the entire chain of title of the mortgage. (Herrera, supra, 196 Cal.App.4th
at p. 1375, 127 Cal.Rptr.3d 362.) Because the original deed of trust demonstrating MERS’s authority is present in this appellate
record, that issue could not arise here.
8
There are a large number of decisions from federal district and bankruptcy courts in California addressing claims based on
MERS’s role in residential foreclosures, which have reached conflicting conclusions. (See, e.g., Sacchi v. Mortgage Electronic
Registration Systems, Inc. (C.D.Cal. June 24, 2011, No. CV 11–1658 AHM (CWx)) 2011 WL 2533029, 2011 U.S.Dist. Lexis
68007; In re Doble (Bankr.S.D.Cal. Apr. 14, 2011, No. 10–11296–MM13) 2011 WL 1465559, 2011 Bankr.Lexis 1449; Marks v.
Green Tree Servicing (N.D.Cal. Oct. 27, 2010, No. C 10–03593 SI) 2010 WL 4347943, 2010 U.S.Dist. Lexis 119979; Castillo v.
Skoba (S.D.Cal. Oct. 8, 2010, Case No. 10cv1838 BTM) 2010 WL 3986953, 2010 U.S.Dist. Lexis 108432; Ohlendorf v.
American Home Mortgage Servicing (E.D.Cal. Mar. 31, 2010, No. CIV. S–09–2081 LKK/EFB) 2010 U.S.Dist. Lexis 31098.)
Plaintiff does not cite, and we are unaware of, any federal decision addressing precisely the issue raised here.
9
Plaintiff cites no authority suggesting the lender was legally precluded from granting MERS the authority, acting as its agent, to
assign the lender’s interest in the note, and we aware of none. In general terms, an agent can be authorized to do any act the
principal may do. (Civ.Code, §§ 2304, 2305; Heiman v. Workers’ Compensation Appeals Board (2007) 149 Cal.App.4th 724,
738, 57 Cal.Rptr.3d 56; Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 761, 269 Cal.Rptr. 617.)
10
Although the complaint contained an allegation that MERS assigned an interest in the deed of trust “alone,” the trial court was
entitled to take judicial notice of the assignment of deed of trust and rely on it in disregarding the contradictory allegation in the
complaint. (Poseidon, supra, 152 Cal.App.4th at p. 1117, 62 Cal.Rptr.3d 59.)
11
The first deed of trust states: “The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or
more times without prior notice to Borrower. A sale might result in a change in the entity ... that collects Periodic Payments due
under the Note and this Security Instrument....”
12
In her reply brief, plaintiff also contends MERS failed to demonstrate it had the authority to foreclose because it did not show the
foreclosure was “ ‘necessary to comply with law or custom,’ ” as provided in the deed of trust. Because this argument was not
raised in the opening brief, it was waived. (E.g., Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401,
427–428, 115 Cal.Rptr.3d 707.)
13
Plaintiff relies on Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 47 Cal.Rptr.3d 832, which held it
an abuse of discretion for the trial court to permit the addition of new plaintiffs only on condition the new parties respond to
discovery. (Id. at p. 642, 47 Cal.Rptr.3d 832.) Armenta was decided under Code of Civil Procedure section 473, subdivision (a),
governing amendment after the close of pleadings, rather than section 472a. Further, we find no useful parallel in the very
different condition, submission to discovery, attached to amendment in Armenta.
14
Plaintiff could even have provided a copy of the March letter to this court. “A showing that the complaint can be amended to state
a cause of action ‘need not be made in the trial court so long as it is made to the reviewing court.’ ” (Kong v. City of Hawaiian
Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041–1042, 134 Cal.Rptr.2d 260.) Because no copy has been
presented, we have no more basis than the trial court for finding a reasonable possibility plaintiff can state a viable cause of
action.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
21
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (2011)
129 Cal.Rptr.3d 467, 11 Cal. Daily Op. Serv. 10,304, 2011 Daily Journal D.A.R. 12,253
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
22
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Citing References (114)
Treatment
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2011 WL 6179100, *3+ , Cal.App. 1 Dist.
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Dec. 13, 2011
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6
16
Cal.Rptr.3d
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Corp.
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Wayne FERREE, Plaintiff and Appellant, v. Andrew
MORSE and Donner Pines Homeowners Association,
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2011 WL 5117222, *1+ , Cal.App. 3 Dist.
Oct. 07, 2011
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SALVADOR HERRERA and Diana Herrera, Plaintiffs &
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INC. & Mortgage Electronic Registration Systems, Inc.,
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2011 WL 4378065, *1+ , Cal.App. 6 Dist.
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Nov. 07, 2011
Plaintiff’s First Amended Complaint and to
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Chase Bank, N.A., U.S...
Richard John DAVENPORT, an individual, Plaintiff, v.
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2011 WL 6799792, *1+ , C.D.Cal.
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10
11
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Cal.Rptr.3d
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
10
Cal.Rptr.3d
23
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Examined by
Examined by
Examined by
Discussed by
Title
Date
Type
7. Reply in Support of Motion to Dismiss Plaintiff’s Oct. 24, 2011
First Amended Complaint
Andrew HEYING, an individual, Plaintiff, v.
COUNTRYWIDE HOME LOANS, INC. d/b/a America’s
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d/b/a BAC Home ...
2011 WL 5882149, *1+ , C.D.Cal.
Motion
8. Defendants’ Notice of Motion and Motion to
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Benjamin R. DANIELS and Diana L. Daniels, Plaintiffs,
v. America’s Wholesale LENDER; BAC Home Loans
Servicing LP; Bank of America, N.A.; Countrywide H...
2011 WL 5123253, *1+ , C.D.Cal.
Motion
Sep. 02, 2011
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Cal.Rptr.3d
8
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9. Notice of Motion and Motion of Defendants
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JPMorgan Chase Bank, N.A., California
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Emil P. MILYAKOV; Magdalena A. Apostolova,
Plaintiffs, v. JP MORGAN CHASE, N.A.; HSBC Bank USA,
NA; California Reconveyance Co.; Paul Financial, LLC;
...
2011 WL 7054016, *1+ , N.D.Cal.
10. Dupree v. Merrill Lynch Mortg. Lending,
Inc.
2011 WL 5142051, *4+ , Cal.App. 2 Dist.
Depth
Oct. 24, 2011
Motion
10
13
Cal.Rptr.3d
Case
2
10
Cal.Rptr.3d
Kevin Dupree, a self-represented litigant, appeals
from the judgment entered dismissing his lawsuit for
unlawful foreclosure and to quiet title after the court
sustained without...
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Marlon TAASAN and Febes Taasan, Plaintiffs and
Appellants, v. FAMILY LENDING SERVICES, INC.;
Mortgage Electronic Registration Systems, Inc.;
Recontrus...
2011 WL 6982180, *1+ , Cal.App. 1 Dist.
Dec. 16, 2011
12. Respondent’s Brief
Scott L. STEEVER, Eleanor P. Steever.,
Plaintiffs/Appellants, v. WELLS FARGO BANKWELLS
FARGO BANK, N.A., Allegedly as Trustee for
Carrington Mortgage ...
2011 WL 5883850, *1+ , Cal.App. 1 Dist.
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LENOX FINANCIAL MORTGAGE CORPORATION, et al.,
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2011 WL 5902690, *1+ , Cal.App. 2 Dist.
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Cal.Rptr.3d
Brief
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
13
Cal.Rptr.3d
24
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Discussed by
Discussed by
Discussed by
Discussed by
Discussed by
Discussed by
Discussed by
Discussed by
Title
Date
14. Respondents’ Brief
Johnny SILIGA and Fa’Alagilagi Siliga, Husband and
Wife, Plaintiffs/Appellants, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; Quality
Loan Servic...
2011 WL 5893329, *1+ , Cal.App. 2 Dist.
Nov. 07, 2011
15. Respondent’s Brief
Neil SMITH, Plaintiff and Appellant, v. WELLS FARGO
BANK, N.A., Defendant and Respondent.
2011 WL 4809080, *1+ , Cal.App. 2 Dist.
Sep. 23, 2011
16. Respondent Donner Pines Homeowners
Association’s Brief
Wayne FERREE, Plaintiff and Appellant, v. Andrew
MORSE, Donner Pines Homeowners Association, and
Does 1 through 50, inclusive, Defendants and
Responde...
2011 WL 5117221, *1+ , Cal.App. 3 Dist.
Oct. 07, 2011
17. Respondent’s Brief
Idowu O. OGHOGHO, Plaintiff and Appellant, v.
LITTON LOAN SERVICING, LP, Defendant and
Respondent.
2011 WL 5075270, *1+ , Cal.App. 3 Dist.
Sep. 2011
18. Appellants’ Reply Brief
Salvador HERRERA, an individual, Diana Herrera,
Appellants/Plaintiffs, v. FEDERAL NATIONAL
MORTGAGE ASSOCIATION, an Agency of the Federal
Government, ...
2011 WL 6982215, *1+ , Cal.App. 4 Dist.
Dec. 15, 2011
19. Brief of Defendant-Respondent
Nektoe DEMISON and Danielle Demison, PlaintiffsAppellants, v. U.S. BANK NATIONAL ASSOCIATION,
Defendant - Respondent.
2011 WL 6939572, *1+ , Cal.App. 5 Dist.
Dec. 20, 2011
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2
8
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5
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20. U.S. Bancorp’s, Bank of America’s and
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individual, Plaintiffs, v. U.S. BANCORP d/b/a U.S. Bank,
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2011 WL 7051945, *1+ , C.D.Cal.
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21. Defendant Wells Fargo Bank, N.A.’s Reply Brief Nov. 28, 2011
in Support of Its Motion to Dismiss, Pursuant to
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and M...
Bever-Leigh B. PENNEY, Plaintiff, v. WELLS FARGO
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6
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© 2012 Thomson Reuters. No claim to original U.S. Government Works.
10
13
15
Cal.Rptr.3d
25
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Discussed by
Title
Date
Type
22. Reply in Support of Motion to Dismiss
Nov. 28, 2011
Plaintiff’s First Amended Complaint and to
Expunge the Lis Pendens by Defendants JPMorgan
Chase Bank, N.A., U.S....
Richard John DAVENPORT, an individual, Plaintiff, v.
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2011 WL 6799739, *1+ , C.D.Cal.
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2011 WL 6800249, *1+ , C.D.Cal.
Nov. 15, 2011
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25. Plaintiff’s Opposition to Defendants’ Motion to Nov. 14, 2011
Dismiss Plaintiff’s First Amended Complaint
Vincent PIGNOTTI, an individual, Plaintiff, v.
JPMORGAN CHASE BANK, N.A. f/k/a Washington
Mutual Bank, F.A.; Bank of America, N.A. As Successor
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2011 WL 6800286, *1+ , C.D.Cal.
Motion
26. Reply to Plaintiffs’ Opposition to Saxon
Nov. 10, 2011
Mortgage Service, Inc. and Morgan Stanley
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Dismiss Plaintiffs’ Com...
Francisco LOPEZ and Socorro Lopez, Plaintiffs, v. FV-I,
INC., in trust for Morgan Stanley Mortgage Capital
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2011 WL 6799744, *1+ , C.D.Cal.
Motion
27. Notice of Motion and Motion to Dismiss
Nov. 10, 2011
Plaintiff’s First Amended Complaint;
Memorandum of Points and Authorities in Support
Thereof
Linda D. WILLIAMS, Plaintiff, v. U.S. BANK, National
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2011 WL 6800444, *1+ , C.D.Cal.
Motion
Discussed by
Discussed by
Discussed by
Depth
Headnote(s)
10
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17
Cal.Rptr.3d
—
15
Cal.Rptr.3d
24
26
27
Cal.Rptr.3d
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
17
Cal.Rptr.3d
26
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Discussed by
Discussed by
Title
28. Defendants Bank of America Corporation,
Bank of America, N.A., As Successor by Merger to
BAC Home Loans Servicing, LP, and Mortgage
Electronic Registr...
Jose J. Ocampo QUINTERO, Plaintiff, v. BANK OF
AMERICA CORPORATION, a Delaware Corporation,
also doing business as BAC Home Loans Servicing LP,
f/k/a ...
2011 WL 6800297, *1+ , C.D.Cal.
Date
Nov. 08, 2011
Type
Motion
Depth
Headnote(s)
9
Cal.Rptr.3d
29. Reply Memorandum of Points and Authorities Nov. 07, 2011
in Support of Motion of Defendants Bank of
America, N.A. and US Bank N.A. to Dismiss First
Amended Complain...
Stan KATS, an individual, Plaintiff, v. BANK OF
AMERICA CORPORATION dba BAC Home Loans
Servicing, LP, fka SBM Home Loans Servicing, LP; U.S.
Bancorp d...
2011 WL 6799793, *1+ , C.D.Cal.
Motion
Discussed by
30. Notice of Motion and Motion to Dismiss
Nov. 03, 2011
Plaintiff’s First Amended Complaint;
Memorandum of Points and Authorities
Vince PIGNOTTI, an individual, Plaintiff, v. JPMORGAN
CHASE BANK, N.A. f/k/a Washington Mutual Bank,
F.A.; Bank of America, National Association As Su...
2011 WL 6800284, *1+ , C.D.Cal.
Motion
Discussed by
31. Defendant Wells Fargo Bank, N.A.’s Motion to
Dismiss the Entirety of Plaintiff’s First Amended
Complaint, Pursuant to Federal Rules of Civil
Procedure...
Bever-Leigh B. PENNEY, Plaintiff, v. WELLS FARGO
BANK, NA Wells Fargo Home Mortgage Ndex West,
L.L.C. Stewart Lender Services f/k/a/ Stewart
Mortgage ...
2011 WL 6799788, *1+ , C.D.Cal.
Motion
Nov. 01, 2011
10
13
14
Cal.Rptr.3d
—
10
13
Cal.Rptr.3d
Discussed by
32. Notice of Motion and Motion to Expunge
Oct. 26, 2011
Notice of Pendency of Action and Request for
Monetary Sanctions; Memorandum of Points and
Authorities
Tuan NGUYEN, an individual, Plaintiff, v. AURORA
LOAN SERVICES, LLC;, a Corporation; Mortgage
Electronic Registration Systems, Inc.; and Does 1-100,
D...
2011 WL 5882092, *1+ , C.D.Cal.
Motion
Discussed by
33. Defendants’ Amended Supplemental Reply in Oct. 19, 2011
Support of Converted Motion for Summary
Judgment and Motion to Expunge
Laura GOMEZ;, Plaintiff, v. WELLS FARGO BANK, N.A.;
America’s Servicing Company; NDEX West LLC; and
Does 1 to 100, inclusive, Defendants.
2011 WL 5882096, *1+ , C.D.Cal.
Motion
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
—
23
26
27
Cal.Rptr.3d
27
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Discussed by
Title
Date
Type
34. Plaintiff’s Opposition to Defendants’
Oct. 17, 2011
Countrywide Home Loans, Inc. d/b/a America’s
Wholesale Lender; Bank of America Corporation
d/b/a BAC Home Loans ...
Andrew HEYING, an individual, Plaintiff, v.
COUNTRYWIDE HOME LOANS, INC. d/b/a America’s
Wholesale Lender; Recontrust Company, N.A.; Bank of
America C...
2011 WL 5882153, *1+ , C.D.Cal.
Motion
Discussed by
35. Notice of Motion and Motion to Dismiss
Sep. 15, 2011
Plaintiff’s Complaint; Memorandum of Points and
Authorities
Tuan NGUYEN, an individual, Plaintiff, v. AURORA
LOAN SERVICES, LLC; a Corporation; Mortgage
Electronic Registration Systems, Inc.; and Does 1-100,
De...
2011 WL 5143212, *1+ , C.D.Cal.
Motion
Discussed by
36. Defendants’ Notice of Motion and Motion to
Aug. 24, 2011
Dismiss Plaintiffs’ Complaint; Memorandum of
Points and Authorities in Support Thereof
Steve G. HOLT and Jeanette J. Holt, Plaintiffs, v.
RYLAND MORTGAGE COMPANY, an Ohio Corporation;
Bank of America Corporation, a Delaware
Corporation, ...
2011 WL 4590172, *1+ , C.D.Cal.
Motion
37. Deutsche Bank and Saxon’s Memorandum of
Nov. 21, 2011
Points and Authorities in Support of Motion to
Dismiss First Amended Complaint
Edgardo MICHEL and Alis Salinas De Michel, Plaintiffs,
v. DEUTSCHE BANK TRUST COMPANY, as Trustee for
Gsaa Home Equity Trust 2006-2; Saxon Mortgage Se...
2011 WL 6826516, *1+ , E.D.Cal.
Motion
38. Memorandum of Points and Authorities in
Support of Reply to Opposition to Motion to
Dismiss of Defendants Wells Fargo Bank, N.A.,
Merscorp. And Mortga...
Aubrey D. CRAWFORD, individual as, Plaintiff, v.
AMERICAN SERVICING CORP.; First Amernican
Trustee Servicing Solutions; First American Loanstar
Truste...
2011 WL 5883429, *1+ , E.D.Cal.
Motion
Discussed by
Discussed by
Discussed by
Oct. 31, 2011
39. Reply in Support of Motion to Dismiss
Nov. 21, 2011
Plaintiff’s Third Amended Complaint Filed by
Aurora Loan Services LLC and Mortgage Electronic
Registration Syste...
Jose Antonio JARA, Plaintiff, v. AURORA LOAN
SERVICES, LLC, Mortgage Electronic Registration
Systems, a Delaware corporation, California Western
Recon...
2011 WL 6415684, *1+ , N.D.Cal.
Depth
Headnote(s)
15
Cal.Rptr.3d
—
21
Cal.Rptr.3d
10
12
Cal.Rptr.3d
9
Cal.Rptr.3d
Motion
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
5
6
Cal.Rptr.3d
28
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Discussed by
Discussed by
Discussed by
Cited by
Title
Date
Type
Depth
Headnote(s)
40. Wells Fargo and U.S. Bank’s Reply to Plaintiffs Oct. 07, 2011
Untimely Opposition to Motion to Dismiss
Keith WILSON, an individual, and Susan Wilson, an
individual, Plaintiff, v. WELLS FARGO BANK, N.A.; U.S.
Bank National Association, as Trustee, Succes...
2011 WL 5829131, *1+ , N.D.Cal.
Motion
41. U.S. Bank National Association as Successor in Sep. 02, 2011
Interest to the Federal Deposit Insurance
Corporation as Receiver for Downey Savings and
Loan Associati...
James Gary HAMILTON and Beverly E. Hamilton,
Plaintiff(s), v. U.S. BANK N.A. or assignee, Chase Home
Finance, LLC, Home Sales Inc., Naiman Law Group, ...
2011 WL 5223949, *1+ , S.D.Cal.
Motion
42. Bench Memorandum of Law by Mortgage
Electronic Registration Systems, Inc.
Oratai CULHANE, Plaintiff, v. AURORA LOAN
SERVICES OF NEBRASKA, Defendant.
2011 WL 7090909, *1+ , D.Mass.
Sep. 20, 2011
Motion
43. Hernandez v. OneWest Bank, FSB
2012 WL 274370, *1+ , Cal.App. 2 Dist.
Jan. 31, 2012
Case
—
44. Peterson v. Carrington Mortg. Services, LLC Dec. 28, 2011
2011 WL 6934551, *17+ , Cal.App. 6 Dist.
Case
—
15
Cal.Rptr.3d
9
Cal.Rptr.3d
11
16
Cal.Rptr.3d
Plaintiffs Artemio and Columba Hernandez obtained a
real estate purchase loan secured by a deed of trust
against the property. The original lender,
Cornerstone Lending, assigned...
Cited by
Plaintiff and appellant Mark J. Peterson appeals from
the trial court’s grant of summary judgment in favor of
defendant and respondent Carrington Mortgage
Services, LLC on...
Cited by
45. Hanelin v. Hanelin
2011 WL 5179186, *4 , Cal.App. 2 Dist.
Nov. 02, 2011
Case
25
Cal.Rptr.3d
Plaintiff and appellant Jami Hanelin (Jami) appeals a
judgment of dismissal in favor of defendant and
respondent Helga Hanelin (Helga) entered after the
trial court sustained...
Cited by
46. Ahmed v. Wells Fargo Bank, N.A.
2011 WL 5027591, *6+ , Cal.App. 2 Dist.
Oct. 24, 2011
Case
24
25
27
Cal.Rptr.3d
Khaleda Ahmed appeals from the judgment entered
after the trial court sustained without leave to amend
Wells Fargo Bank N.A.’s and EMC Mortgage
Corporation’s demurrers to Ahmed’s...
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
29
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Cited by
Title
47. Bean v. BAC Home Loans Servicing, L.P.
2012 WL 171435, *1+ , D.Ariz.
Date
Jan. 20, 2012
Type
Case
48. U.S. Bank Nat. Ass’n ND v. Elender Escrow, Inc. Nov. 21, 2011
2011 WL 5857029, *11 , E.D.Ark.
49. Tilley v. Ampro Mortg.
2012 WL 33033, *3 , E.D.Cal.
Case
50. Tilley v. Ampro Mortg.
2011 WL 5921415, *13+ , E.D.Cal.
Jan. 06, 2012
Case
51. Minichino v. Wells Fargo Bank, N.A.
2011 WL 4715153, *9+ , N.D.Cal.
Nov. 28, 2011
Case
52. Wadhwa v. Aurora Loan Services LLC
2011 WL 4566107, *3 , E.D.Cal.
15
27
10
17
2
16
17
Cal.Rptr.3d
Oct. 07, 2011
Case
7
Cal.Rptr.3d
Currently before the Court are defendant Wells Fargo
Bank’s motions to dismiss and strike plaintiff’s
Amended Complaint (“AC”). For the following reasons,
the Court GRANTS...
Cited by
13
Cal.Rptr.3d
Plaintiff challenges the foreclosure and imminent
trustee’s sale of her home in a complaint raising
thirteen causes of action: (1) violation of the
Homeowner’s Equity Protection...
Cited by
10
Cal.Rptr.3d
On January 5, 2012, plaintiff filed an ex parte
application for a temporary restraining order, seeking
to prevent a trustee’s sale of her house, set for January
6, 2012. Plaintiff...
Cited by
Headnote(s)
Cal.Rptr.3d
Pending before the Court are Motions to Dismiss filed
by Defendant PrimeLending, Defendants
Commonwealth Land Title Company
(“Commonwealth”) and Lawyers Title of Nevada
(“Lawyers...
Cited by
Depth
Sep. 29, 2011
Case
Sep. 26, 2011
Case
—
This case was on calendar on August 31, 2011 for a
hearing on plaintiffs’ motion for a preliminary
injunction. Eric A. Yadao, Abdallah Law Group,
appeared for plaintiffs; Andrew W....
Cited by
53. Mata v. Citimortgage, Inc.
2011 WL 4542723, *2 , C.D.Cal.
Debra Plato Not Present Deputy Clerk Plaintiffs are a
married couple who bring various claims related to
their mortgage against Defendants Citimortgage, Inc.,
Citibank, N .A.,...
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
7
Cal.Rptr.3d
30
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Title
54. Culhane v. Aurora Loan Services of
Nebraska
--- F.Supp.2d ---- , D.Mass.
Date
Type
Nov. 28, 2011
Case
Sep. 08, 2011
Petition
Depth
Headnote(s)
—
REAL PROPERTY - Mortgages and Deeds of Trust.
Mortgagee’s assignee had authority to foreclose.
Cited by
Cited by
Cited by
Cited by
Cited by
55. Brief in Opposition to Petition for Certiorari
Gomes v. Countrywide Home Loans, Inc.
2011 WL 4048823, *1+ , U.S.
Cal.Rptr.3d
56. Answer to Petition for Review
Dec. 12, 2011
Arturo De LEON, Petitioner, v. THE SUPERIOR COURT
OF NAPA COUNTY, Respondent, Bac Home Loans
Servicing, L.P. et al. Real Parties In Interest.
2011 WL 6940801, *1 , Cal.
Petition
57. Brief of Appellees Bank of America, N.A. and
BAC Home Loans Servicing, LP
William B. BUTLER and Mary S. Butler, individually
and as representatives for all others similar situated,
Appellants, v. BANK OF AMERICA, N.A.; BAC H...
2011 WL 5997193, *1+ , 8th Cir.
Nov. 16, 2011
Brief
58. Reply Brief for Appellants
Andinaria NELSON, Tarrance Nelson, Appellants, v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Appellee.
2011 WL 7098049, *1+ , Ala.Civ.App.
Dec. 02, 2011
59. Reply Brief for Appellants
Andinaria NELSON, Tarrance Nelson, Appellants, v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Appellee.
2011 WL 7098048, *1 , Ala.Civ.App.
Nov. 29, 2011
2
Cal.Rptr.3d
2
10
16
Cal.Rptr.3d
Brief
10
Cal.Rptr.3d
Brief
10
Cal.Rptr.3d
Cited by
60. Respondent’s Brief
Dec. 15, 2011
Raphael AHARONOFF and Yaffi Aharonoff, Plaintiffs /
Appellants, v. AMERICA HOME MORTGAGE SERVICES,
INC., et al., Defendants / Respondents.
2011 WL 6963997, *1+ , Cal.App. 2 Dist.
Brief
Cited by
61. Respondent’s Brief
Paul ANSTEY, Plaintiff, Cross-Defendant, and
Appellant, v. Dion BEEBE and Unjoo Moon,
Defendants, Cross-Complainants, and Respondents.
2011 WL 6345127, *1+ , Cal.App. 2 Dist.
Dec. 06, 2011
Brief
62. Appellants’ Reply Brief
Johnny SILIGA and Fa’Alagilagi Siliga, Husband and
Wife, Plaintiffs/Appellants, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; Quality
Loan Servic...
2011 WL 6345357, *1+ , Cal.App. 2 Dist.
Nov. 29, 2011
Cited by
6
—
6
Cal.Rptr.3d
Brief
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10
Cal.Rptr.3d
31
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Cited by
Cited by
Cited by
Title
63. Respondent’s Brief
Grigori ADJIAN et al., Plaintiffs and Appellants, v.
WASHINGTON MUTUAL BANK et al., Defendants and
Respondents.
2011 WL 5902655, *1+ , Cal.App. 2 Dist.
Date
Oct. 31, 2011
Type
Brief
Depth
Headnote(s)
18
Cal.Rptr.3d
64. Reply Brief of Real Party in Interest and
Sep. 19, 2011
Appellant Michael Chwe
Ari MARKEN, Plaintiff and Appellant, v. SANTA
MONICA-MALIBU UNIFIED SCHOOL DISTRICT,
Defendant and Respondent; Michael Chwe, Real Party
in Interest an...
2011 WL 6120062, *1+ , Cal.App. 2 Dist.
Brief
65. Respondents’ Amended Brief
BURTON, v. NDEX WEST LLC et al.; Daphne Burton,
Appellant, PHH Mortgage Corporation & Pnc Bank,
N.A., Respondents.
2011 WL 4528096, *1+ , Cal.App. 2 Dist.
Sep. 14, 2011
Brief
66. Respondents’ Brief
BURTON, v. NDEX WEST LLC et al. Daphne Burton,
Appellant, PHH Mortgage Corporation & PNC Bank,
N.A., Respondents.
2011 WL 4458916, *1+ , Cal.App. 2 Dist.
Sep. 13, 2011
17
Cal.Rptr.3d
16
Cal.Rptr.3d
Brief
16
Cal.Rptr.3d
Cited by
67. Respondent’s Brief
Nov. 22, 2011
Gary SPEIGINER and Rennae D. Speiginer, Plaintiffs
and Appellants, v. BEN BENNETT, INC., Defendant and
Respondent.
2011 WL 6402261, *1+ , Cal.App. 4 Dist.
Brief
—
Cited by
68. Respondent’s Brief
Maria GARCIA, et al., Plaintiffs and Appellants, v.
ARIAS LATINO MARKET, INC., et al., Defendants and
Respondents.
2006 WL 6860507, *1+ , Cal.App. 5 Dist.
2006
Brief
—
Cited by
69. Respondent’s Brief
Azucena BENTAJADO, Plaintiff and Appellant, v.
WELLS FARGO BANK, N.A., Defendant and
Respondent.
2011 WL 4543538, *1+ , Cal.App. 6 Dist.
Sep. 15, 2011
Brief
—
Cited by
70. Respondents’ Brief
Aug. 26, 2011
Cornelio PANTOJA, Plaintiff and Appellant, v.
COUNTRYWIDE HOME LOANS, INC., et al., Defendants
and Respondents.
2011 WL 4543529, *1+ , Cal.App. 6 Dist.
Brief
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
17
Cal.Rptr.3d
32
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Cited by
Title
Date
Type
71. Amicus Brief of Michigan Chamber of
Oct. 21, 2011
Commerce in Support of the Application for Leave
to Appeal and Reversal of the Decision Below
RESIDENTIAL FUNDING CO, LLC, f/k/a Residential
Funding Corporation, Plaintiff-Appellant, v. Gerald
SAURMAN, Defendant-Appellee. BANK OF NEW YORK
TRUST...
2011 WL 5145688, *1+ , Mich.
Brief
72. Memorandum of Points and Authorities in
Support of Motion to Dismiss Pursuant to Rule
12(b)(6)
Marvin E. LINARES, an individual; Ana R. Linares, an
individual, Plaintiffs, v. FIRST MORTGAGE
CORPORATION, a California Corporation; Hacienda
Service...
2011 WL 7052000, *1+ , C.D.Cal.
Motion
Dec. 29, 2011
Depth
Headnote(s)
2
10
Cal.Rptr.3d
9
Cal.Rptr.3d
Cited by
73. Notice of Motion and Motion by Defendant
Dec. 21, 2011
NDeX West, LLC to Dismiss Plaintiffs’ First
Amended Complaint, or in the Alternative for
More Definite Statem...
Mehdi TEHRANCHI and Mina Tehranchi, Plaintiffs, v.
PLAN RIVER INVESTMENT, LLC; Onewest Bank; NDeX
West, LLC; and Does 1-10, inclusive, Defendants.
2011 WL 7038104, *1 , C.D.Cal.
Motion
—
Cited by
74. Amended Notice of Motion and Motion by
Dec. 21, 2011
Defendant NDeX West, LLC to Dismiss Plaintiffs’
First Amended Complaint, or in the Alternative for
More Definit...
Mehdi TEHRANCHI and Mina Tehranchi, Plaintiffs, v.
PLAN RIVER INVESTMENT, LLC; Onewest Bank; NDeX
West, LLC; and Does 1-10, inclusive, Defendants.
2011 WL 7038105, *1+ , C.D.Cal.
Motion
—
Cited by
75. Notice of Motions and Motions to Dismiss
Plaintiff’s Complaint or, Alternatively, for A More
Definite Statement; Memorandum of Points and
Authorities
Dolores MACIAS, Ens Legis, Plaintiff, v. Downey
SAVINGS and Loan Association, F.A.; DSL Service
Company, A California Corporation; Global Trio
Funding...
2011 WL 6826026, *1+ , C.D.Cal.
Nov. 29, 2011
Motion
76. Memorandum of Points and Authorities in
Opposition to Motion to Dismiss Plaintiff’s First
Amended Complaint
Richard John DAVENPORT, an individual, Plaintiff, v.
WASHINGTON MUTUAL BANK, a federal savings
association; JP Morgan Chase Bank, National
Association...
2011 WL 6799794, *1+ , C.D.Cal.
Nov. 21, 2011
Cited by
16
2
16
Cal.Rptr.3d
Motion
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—
33
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Title
Date
Type
Depth
Headnote(s)
77. Reply to Defendant’s Opposition to Plaintiff’s Nov. 10, 2011
Motion to Remand Case
Francisco LOPEZ and Socorro Lopez, Plaintiffs, v. FV-I,
INC., in trust for Morgan Stanley Mortgage Capital
Holdings, LLC, a Delaware Corporation; Saxo...
2011 WL 6799743, *1+ , C.D.Cal.
Motion
78. Memorandum of Points and Authorities in
Nov. 04, 2011
Support of Opposition to Motion to Remand
Francisco LOPEZ and Socorro Lopez, Plaintiffs, v. FV-I,
INC., in trust for Morgan Stanley Mortgage Capital
Holdings, LLC, a Delaware Corporation; Saxo...
2011 WL 6799741, *1+ , C.D.Cal.
Motion
Cited by
79. Plaintiff’s Opposition to Defendants Bank of
America, N.A. And US Bank N.A.’s Motion to
Dismiss the First Amended Complaint
Stan KATS, an individual, Plaintiff, v. BANK OF
AMERICA CORPORATION dba BAC Home Loans
Servicing, LP, fka Sbm Home Loans Servicing, LP; U.S.
Bancorp d...
2011 WL 5882143, *1 , C.D.Cal.
Oct. 31, 2011
Motion
—
Cited by
80. Notice of Motion and Motion to Dismiss
Oct. 26, 2011
Plaintiff’s Complaint; Memorandum of Points and
Authorities
Tuan NGUYEN, an individual, Plaintiff, v. AURORA
LOAN SERVICES, LLC;, a Corporation; Mortgage
Electronic Registration Systems, Inc.; and Does 1-100,
D...
2011 WL 5882091, *1+ , C.D.Cal.
Motion
—
Cited by
81. Memorandum of Points and Authorities in
Oct. 14, 2011
Support of Citimortgage, Inc.’s Motion to Dismiss
Complaint
Jose Luis ROSAS; Steven Zivanic; Yvonne Zivanic;
Fernando Hinnaoui; Martha V. Hinnaoui; Sandra
Enshiwat; Ali Reza Amirjalaiy; Kian Kamrani on Behalf
o...
2011 WL 5884968, *1+ , C.D.Cal.
Motion
Cited by
82. Reply of Ahmsi and Deutsche Bank in Support Oct. 10, 2011
of Motion to Dismiss First Amended Complaint
and Motion to Strike
Robert RITCHIE, an individual, Plaintiff, v. ARGENT
MORTGAGE COMPANY, LLC ; Deutsche Bank National
Trust Company, as Trustee in Trust for the Benefit ...
2011 WL 5882613, *1+ , C.D.Cal.
Motion
Cited by
83. Notice of Motion and Motion to Dismiss
Plaintiffs’ First Amended Complaint for Failure to
State a Claim Upon Which Relief Can be Granted
or, in the Al...
Werner A. ZANDER, Pamela K. Zander, Plaintiffs, v.
ACE MORTGAGE FUNDING LLC; UBS AG Tampa
Branch; UBS AG New York Branch; UBS/Special
Servicing Group;...
2011 WL 5143207, *1+ , C.D.Cal.
Motion
Cited by
Sep. 29, 2011
2
16
Cal.Rptr.3d
13
14
15
Cal.Rptr.3d
17
Cal.Rptr.3d
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
—
2
Cal.Rptr.3d
34
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Title
Date
Type
Cited by
84. Defendants’ Reply Brief in Support of Motion Sep. 19, 2011
to Dismiss Plaintiffs’ First Amended Complaint for
Failure to State a Claim Upon Which Relief Can Be
Gran...
Richard L. KNICKERBOCKER, and Saloi A.
Knickerbocker, husband and wife, Plaintiffs, v.
AMERICAN HOME LOAN MORTGAGE SERVICING, INC.,
a California corpo...
2011 WL 5184309, *1 , C.D.Cal.
Motion
Cited by
85. Notice of Motion and Motion to Dismiss
Plaintiffs’ Complaint for Failure to State a Claim
Upon Which Relief Can Be Granted or, in the
Alternative, for...
Werner A. ZANDER, Pamela K. Zander, Plaintiffs, v.
ACE MORTGAGE FUNDING LLC; UBS AG Tampa
Branch; UBS AG New York Branch; UBS/Special
Servicing Group;...
2011 WL 5123258, *1+ , C.D.Cal.
Motion
Sep. 14, 2011
86. Second Reply in Support of Defendant Wells
Sep. 06, 2011
Fargo Bank, N.A.’s Motion to Dismiss Pursuant to
Fed. R. Civ. Proc. 12(b)(6), or in the Alternative, to
Str...
Okwuni J. ODIMBUR, Plaintiff, v. WELLS FARGO BANK,
America’s Servicing Company, Ndex West LLC, Bertha
Padilla, Broker, Cammino Realty, Does 1-25, Defe...
2011 WL 5143260, *1+ , C.D.Cal.
Motion
Cited by
87. Plaintiffs’ Opposition to Defendants JPMorgan Sep. 02, 2011
Chase Bank, N.A. and California Reconveyance
Company’s Motion to Dismiss Plaintiffs’ First
Amended Verif...
Abner PAJOUNIA and Sahar Pajounia, individuals,
Plaintiffs, v. BANK OF AMERICA, N.A. as Successor by
Merger to Lasalle Bank N.A. as Trustee for Wamu M...
2011 WL 5143294, *1+ , C.D.Cal.
Motion
88. Specially Appearing Defendant U.S. Bank
Aug. 17, 2011
National Association’s Motion to Dismiss Plaintiff’s
Complaint Pursuant to Federal Rules of Civil
Procedure, R...
LINDEN INVESTMENT TRUST, Plaintiff, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., U.S.
Bank National Association, Credit Suisse First Boston
Mort...
2011 WL 4465080, *1+ , C.D.Cal.
Motion
89. Notice of Motion and Motion to Strike Portions Dec. 28, 2011
of Plaintiff’s First Amended Complaint or, in the
Alternative, Motion to Dismiss the First Amended
Comp...
Paula TILLEY, Plaintiffs, v. AMPRO MORTGAGE, an
Arizona corporation, that is a division of United
Financial Mortgage Corp.; Liberty Title Company;
Mor...
2011 WL 7052093, *1+ , E.D.Cal.
Motion
Cited by
Headnote(s)
—
2
16
Cal.Rptr.3d
Cited by
Cited by
Depth
—
5
6
Cal.Rptr.3d
2
Cal.Rptr.3d
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
10
Cal.Rptr.3d
35
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Title
Date
Type
90. Defendant U.S. Bank National Association’s
Oct. 31, 2011
Reply in Support of its Motion to Dismiss Plaintiff’s
Complaint
Aubrey CRAWFORD, Plaintiff, v. William CAVE, and/or
his successor, individually, and in his official capacity
as US Bank National Association.; Dennis...
2011 WL 5883432, *1+ , E.D.Cal.
Motion
91. Memorandum of Points and Authorities in
Sep. 30, 2011
Support of Motion to Dismiss First Amended
Complaint Pursuant to Rule 12(b)(6); and Motion
to Expunge Recorded...
Christian PEDERSEN and Sonika Tinker, Plaintiffs, v.
GREENPOINT MORTGAGE FUNDING, INC., a New York
Corporation, Marin Conveyancing Corp.; Mortgage
Ele...
2011 WL 5143510, *1+ , E.D.Cal.
Motion
Cited by
92. Defendants’ Opposition to Plaintiff’s Motion
for Preliminary Injunction; Memorandum of
Points and Authorities in Support Thereof;
Declaration
Paula TILLEY, Plaintiffs, v. Ampro MORTGAGE, an
Arizona corporation, that is a division of United
Financial Mortgage Corp.; Liberty Title Company;
Mor...
2011 WL 5143509, *1+ , E.D.Cal.
Sep. 28, 2011
Motion
Cited by
93. Notice of Motion and Motion to Dismiss
Sep. 23, 2011
Plaintiff’s Complaint; Memorandum of Points and
Authorities
Richard S. MYERS, Plaintiff, v. Encore CREDIT, a
Delaware Corporation; Fidelity National Title
Insurance Company; Mortgage Electronic Registration
Sys...
2011 WL 5190533, *1 , E.D.Cal.
Motion
94. Memorandum of Points and Authorities in
Dec. 14, 2011
Support of Motion to Dismiss First Amended
Complaint for Failure to State a Claim Upon Which
Relief May Be Gra...
Faye Myrette CROSLEY, Plaintiff, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC
Financial dba Trustee Corps’ Onewest Bank, FSB and
Does 1 thro...
2011 WL 7054072, *1+ , N.D.Cal.
Motion
95. Memorandum of Points and Authorities in
Nov. 30, 2011
Support of Motion to Dismiss First Amended
Complaint for Failure to State a Claim Upon Which
Relief May Be Gra...
Faye Myrette CROSLEY, Plaintiff, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; MTC
Financial dba Trustee Corps’ Onewest Bank, FSB and
Does 1 thro...
2011 WL 6415820, *1+ , N.D.Cal.
Motion
Cited by
Cited by
Cited by
Depth
Headnote(s)
5
6
Cal.Rptr.3d
10
13
Cal.Rptr.3d
—
13
Cal.Rptr.3d
13
Cal.Rptr.3d
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
13
Cal.Rptr.3d
36
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Cited by
Cited by
Cited by
Cited by
Cited by
Mentioned by
Title
Date
Type
96. Memorandum of Points and Authorities in
Nov. 29, 2011
Support of Motion to Dismiss First Amended
Complaint Against MTC Financial Inc., dba Trustee
Corps for Failure...
Faye MYRETTE-CROSLEY, Plaintiff, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS; MTC
Financial Inc., dba Trustee Corps.; Onewest Bank;
Does 1 through 50 ...
2011 WL 6415821, *1+ , N.D.Cal.
Motion
97. Plaintiffs’ Opposition to Defendants Wells
Fargo Bank, NA; US Bank as Trustee for Wells
Fargo Asset Securities Corp. Mortgage PassThrough Certificate...
Keith D. WILSON, an individual, and Susan Wilson, an
individual, as trustees for the Wilson Family Trust,
Plaintiffs, v. WELLS FARGO BANK, NA; US Bank...
2011 WL 5599650, *1+ , N.D.Cal.
Motion
Sep. 30, 2011
Depth
Headnote(s)
2
Cal.Rptr.3d
15
Cal.Rptr.3d
98. Defendants Mortgage Electronic Registration Sep. 08, 2011
Systems, Inc., Compass Bank; and Roundpoint
Mortgage Servicing Corp.’s Reply to Opposition to
Motion to Di...
Franz KROELLIAN, Plaintiffs, v. MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.;
Compass Bank; Roundpoint Mortgage Servicing Corp.;
and Does 1 through ...
2011 WL 5223977, *1+ , S.D.Cal.
Motion
99. Defendants’ Reply in Support of Motion to
Dismiss
Ronald SUMBANG, Plaintiff, v. BAC HOME LOAN
SERVICING LP; Recontrust Company; US Bank N.A. as
Trustee for JPMAC Mortgage Trust 2006-CW2
(Terminated 1/...
2011 WL 6386307, *1 , D.Nev.
Motion
Oct. 21, 2011
2
16
Cal.Rptr.3d
10
Cal.Rptr.3d
100. Bank of America, N.A. and Mortgage
Oct. 17, 2011
Electronic Registration Systems, Inc.’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(B)(6) and
Supporting Memor...
Eric D. HERNANDEZ, Plaintiff, v. RESPONSE
MORTGAGE SERVICE, INC.; Mortgage Electronic
Registration Systems, Inc.; BAC Home Loans Servicing,
LP fka Cou...
2011 WL 5925821, *1 , W.D.Wash.
Motion
101. Jara v. Aurora Loan Services, LLC
2011 WL 6217308, *1 , N.D.Cal.
Case
Dec. 14, 2011
2
10
16
Cal.Rptr.3d
Plaintiff Jose Jara sued Defendants Aurora Loan
Services, LLC (“Aurora”), Mortgage Electronic
Registration Systems (“MERS”), and California
Western Reconveyance (“Cal Western”)...
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
5
Cal.Rptr.3d
37
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
Mentioned by
—
Title
Date
Type
Depth
102. Defendants’ Reply to Opposition to Motion to Sep. 26, 2011
Dismiss Complaint
Phyllis A. HALL, Plaintiffs, v. AMERICAN HOME
MORTGAGE SERVICING, INC., T.D. Service Company,
Mortgage Electronic Registration Systems, Inc. (Mers)
as...
2011 WL 5143249, *1 , C.D.Cal.
Motion
103. 22 NO. 3 Miller & Starr, California Real Estate 2011
Newsalert 1, SHOW ME YOUR PAPERS: SALES AND
ASSIGNMENTS OF SECURED REAL ESTATE LOANS
AND THE CALIFORNI...
Miller & Starr, California Real Estate Newsalert
Other Secondary
Source
—
ALR
—
Headnote(s)
—
6
Cal.Rptr.3d
-- ‘’Badges? We ain’t got no badges. We don’t need no
badges! I don’t have to show you any stinkin’ badges!’’
Gold Hat to Dobbs, in Treasure of the Sierra Madre
(1948) -- ‘’Gomes...
—
104. Comment Note.--Promissory estoppel, 48
A.L.R.2d 1069
1956
105. 22 NO. 2 Miller & Starr, California Real Estate 2011
Newsalert 1, DID SOMEONE SAY ESTOPPEL?COURTS SHOW GREATER ACCEPTANCE OF
APPLYING EQUITABLE PRINCIPLES...
Miller & Starr, California Real Estate Newsalert
25
Cal.Rptr.3d
This annotation supplements one in 115 A.L.R. 152,
and reviews cases reported and literature published
since the date of the earlier note. Like the original
note, this annotation...
—
24
Other Secondary
Source
—
18
Cal.Rptr.3d
With the national economy remaining on the edge of
recession, unemployment stubbornly staying above
9%, and median home prices well below their 2007
peak, California courts have...
—
106. 22 NO. 2 Miller & Starr, California Real Estate 2011
Newsalert 8, CONTRACTS
Miller & Starr, California Real Estate Newsalert
Other Secondary
Source
—
—
—
107. 22 NO. 2 Miller & Starr, California Real Estate 2011
Newsalert 9, DEEDS OF TRUST
Miller & Starr, California Real Estate Newsalert
Other Secondary
Source
—
—
—
108. 22 NO. 2 Miller & Starr, California Real Estate 2011
Newsalert 21, RECORDING AND PRIORITIES
Miller & Starr, California Real Estate Newsalert
Other Secondary
Source
—
—
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
38
Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256
Treatment
—
Title
Date
109. CA Jur. 3d Deeds of Trust s 118, Requisites of 2011
valid assignment
CA Jur. 3d Deeds of Trust
Type
Depth
Other Secondary
Source
—
Other Secondary
Source
—
Other Secondary
Source
—
Other Secondary
Source
—
Other Secondary
Source
—
Other Secondary
Source
—
Headnote(s)
2
13
15
Cal.Rptr.3d
Since the endorsement and delivery of a secured note
carries the security with it, no formal assignment of
the trust deed is necessary, and an assignment is not
invalid because...
—
110. CA Jur. 3d Deeds of Trust s 302, Who may sell 2011
CA Jur. 3d Deeds of Trust
111. CA Jur. 3d Deeds of Trust s 332, Recitals in
trustee’s deed as evidence of regularity of sale
CA Jur. 3d Deeds of Trust
2011
10
16
Cal.Rptr.3d
In a nonjudicial foreclosure, also known as a “trustee’s
sale,” the trustee exercises the power of sale given by
the deed of trust. While a nonjudicial foreclosure must
be...
—
2
10
Cal.Rptr.3d
A recital in the deed executed pursuant to the power
of sale of compliance with all requirements of law
regarding the mailing of copies of notices, or the
publication of a copy of...
—
112. CA Jur. 3d Estoppel and Waiver s 23,
Requisite elements; availability
CA Jur. 3d Estoppel and Waiver
2011
24
Cal.Rptr.3d
For the doctrine of promissory estoppel to come into
effect, there must be a promise on which reliance may
be based. To be binding, the promise must be clear
and unambiguous. There...
—
113. CA Jur. 3d Pleading s 300, Leave to amend
CA Jur. 3d Pleading
2011
Cal.Rptr.3d
While generally parties should have an opportunity to
amend their pleadings before a motion for judgment
on the pleadings is granted, the motion may be
granted with or without...
—
114. CJS Estoppel and Waiver s 116, As to future
events; promissory estoppel
CJS Estoppel and Waiver
2011
18
24
Cal.Rptr.3d
The doctrine of estoppel by representation is
ordinarily applicable only to representations as to
facts either past or present, and not to representations
or promises concerning...
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
39