Filed 9/16/15 Odimbur v. Wells Fargo Bank, N.A. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


OKWUNI ODIMBUR,                                                      B257219

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC443366)
         v.

WELLS FARGO BANK, N.A., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V.
Mooney, Judge. Affirmed.
         The Law Office of Kelvin Green and Kelvin P. Green for Plaintiff and Appellant.
         Litchfield Cavo, Edward D. Vaisbort, Edward C. Hsu for Defendants and
Respondents.
                                           ______________________
                                       SUMMARY
       Plaintiff and appellant Okwuni Odimbur brought an action against her lender and
other financial institutions arising from the 2010 foreclosure on her residence. Appellant
contends on appeal that the trial court erred in sustaining without leave to amend
respondents’ demurrer to her third amended complaint. We affirm.


           STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
       We take our facts from the operative third amended complaint (TAC) and the
attached exhibits.1
       Appellant purchased a single family residence in Carson, California, in July 1991.2
She refinanced the loan on her home in August 2004 and this refinanced loan was sold to
respondent Wells Fargo Bank, N.A., doing business as respondent America’s Servicing
Company (ASC). The refinanced loan was secured by a deed of trust encumbering the
property in the amount of $300,000. The loan required monthly payments of $1,896.20,
which appellant stated she made from October 2004 until May 2009, when her employer,
The World Evangelist Church of the Holy Trinity, was forced to reduce her salary from
$3,500 a month to $1,500 a month. Appellant called ASC several times asking for a loan
modification but was told that she was not under a “hardship” and nothing could be done
until she missed three monthly payments. Appellant rented out the rooms in her home to
help cover the deficit but it was not enough to cover her mortgage payment and other
expenses, which included paying for her deceased sister’s children’s education.
       On August 17, 2009, ASC caused to be recorded a notice of default, which stated
that appellant’s property was in foreclosure and that she had the right to bring her account
to good standing by “paying all of [her] past due payments plus permitted costs and

       1
        This Court granted appellant’s motion to augment the record on appeal on
January 13, 2015, and granted respondents’ motion to augment the record on April 14,
2015.
       2
       The deed of trust for the original loan indicated that appellant borrowed
$171,000 in July 1991.

                                             2
expenses” within the time permitted by law for reinstatement of the account. That
amount was listed on the notice as “$12,366.36 as of 8/13/2009 and will increase until
[the] account becomes current.” The notice of default also stated that “payment has not
been made of: The installment of principal and interest which became due on 4/1/2009
and all subsequent installments, together with late charges as set forth in said note[3] and
deed of trust, advances, assessments, fees, and/or trustee fees, if any.” According to the
TAC, the notice of default was wrong because appellant had made her mortgage
payments for April and May 2009, and was “only three payments behind (for June, July
and August 2009).” Specifically, the TAC alleged that for her April 2009 mortgage
payment, appellant on March 30, 2009, remitted a check for $2,000 made on an account
she “maintained in the name of her employer,” and for the May 2009 mortgage payment
made on May 4, 2009, appellant remitted “$3654.35 by an electronic withdrawal to ASC
from her ‘Church’ account.” 4
       In a letter dated August 27, 2009, ASC sent appellant a proposed “Special
Forbearance Agreement,” which stated that appellant’s “loan is due for 5 installments,
from April 01, 2009 through August 01, 2009.” The forbearance agreement required
appellant to make four payments: the first for $1,110.00 on September 11, 2009, the
second for $1,869.66 on October 11, 2009, the third for $1,869.66 on November 11,
2009, and the fourth for $1,869.66 on December 11, 2009. The forbearance agreement
also stated that “[i]f your loan is in foreclosure, we will instruct our foreclosure counsel
to suspend foreclosure proceedings once the initial installment has been received, and to
continue to suspend the action as long as you keep to the terms of the [forbearance]
agreement.”

       3
           The promissory note was not attached to the TAC or any prior complaint.
       4
        Attached to the TAC were two pages of bank statements for the business interest
checking account of World Evangelist Church of the Holy Trinity, the first page showing
an entry for check No. 1404 paid on March 30, 2009, in the amount of $2,000.00, and the
second page showing under the heading “Electronic & Miscellaneous Withdrawals” a
May 4, 2009 entry, for $3,654.35 with the description “GEMB RSF CHECKPAYMT
1405.” Appellant did not attach the cancelled checks.

                                              3
       According to the TAC, “[i]n reliance on this promise,” appellant “prepaid all four
installments and confirmed payment by letter (Exhibit ‘6’)[5] stating: ‘Per our
conversation, I am forwarding the total of four months payments as we discussed because
I am leaving on a missionary trip in a few days.” Appellant’s cover letter also stated that
she would return from her missionary trip in January 2010 and follow up then.
       On December 29, 2009, defendant NDEX West LLC (as the trustee under the deed
of trust) recorded a notice of trustee’s sale stating that appellant was in default and setting
January 12, 2010, as the date of sale for the property. The notice stated that the “total
amount of the unpaid balance of the obligation secured by the property to be sold and
reasonable estimated costs, expenses and advances at the time of the initial publication of
the Notice of Sale is $299,818.55.”
       Upon her return from her missionary trip, appellant entered into a second
forbearance agreement with ASC. In a letter dated January 22, 2010, appellant stated that
per her conversation with ASC, payments should be deducted directly from her bank
account and applied to monthly payments of: “1st payment for Feb 2010 [:] $2,444.00
(which [she] mailed to ASC separately . . .)[,] 2nd payment for Mar 2010 [:] $2,064.70[,]
3rd payment for Apr 2010 [:] $2,064.70[, and] 4th payment for May 2010 [:] $2,064.70.”
Appellant’s letter also stated that “[s]ince you are taking the funds from my bank each
month directly this time, we should not have the issues that we had previously where you
placed a Trustee Sale on my home and the payments should be applied correctly.”
Appellant then noted that she would follow up when she returned from another
missionary trip on July 23, 2010.
       In a letter dated February 1, 2010, ASC sent appellant a second proposed special
forbearance agreement and cover letter. The second forbearance agreement required
appellant to make four payments: the first for $2,444.00 on February 12, 2010, the
second for $2,064.70 on March 12, 2010, the third for $2,064.70 on April 12, 2010, and
the fourth for $2,064.70 on May 12, 2010. Like the first forbearance agreement, the

       5
        Exhibit 6, appellant’s cover letter to ASC, is dated August 26, 2009, or one day
before ASC’s letter enclosing the forbearance agreement.

                                              4
second one also stated in the cover letter that “[i]f your loan is in foreclosure, we will
instruct our foreclosure counsel to suspend foreclosure proceedings once the initial
installment has been received, and to continue to suspend the action as long as you keep
to the terms of the [forbearance] agreement.”
       The second forbearance agreement stated that appellant’s loan “is due for 8
installments, from July 01, 2009 through February 01, 2010.” Appellant countersigned
the second forbearance agreement on February 12, 2010, and then added a handwritten
note on February 17, 2010, to the bottom of the agreement, stating: “I only owed or miss
[sic] three monthly payment of $1,896.20 x 3 = $5,688.60. When I was waiting for your
modification: I was paid from September 09, to or up to December 2009: I do not know,
where ASC claiming from July 09 to January 10. I strongly disagree with your
calculations of my past dues.”
       Appellant made the four payments required in the second forbearance agreement,
attaching to the TAC a copy of a cashier’s check for $2,444.00 dated as February 8, 2010,
made payable to ASC and a bank statement showing a “TEL MORTGAGE PAYMENT”
posted on March 15, 2010, for $2,064.70, and two entries described as “CUSTOMER
CHECK” for $2,064.70 posted on April 14 and May 13, 2010. The TAC states that after
these payments, her account had “sufficient funds left on deposit to cover the June 2010
installment,” citing the bank statement, “leaving only the July 2010 installment to be paid
after [appellant] ‘return[ed] from [her] missionary trip on July 23, 2010.’” But appellant
was never given “the chance to do so, because ASC foreclosed on July 16, 2010, for a
credit bid by the foreclosing beneficiary of $304,547.60.” The trustee’s deed upon sale
was recorded on July 22, 2010, and indicated that the “amount of the unpaid debt
together with cost was $304,547.60.”




                                              5
       On August 9, 2010, appellant filed her original complaint in pro. per.6 Respondent
Wells Fargo moved to quash service of the complaint and the trial court granted the
motion.
       On April 19, 2011, appellant (using her first attorney) filed her first amended
complaint. Wells Fargo removed the case to federal court and on March 1, 2012, the
federal court granted in part and denied in part Wells Fargo’s motion to dismiss. 7
       On March 22, 2012, appellant (using her second attorney) filed in federal court her
second amended complaint (federal SAC), naming two additional respondents and other
defendants, and the federal court remanded the case to state court for lack of diversity.
Respondents demurred to the federal SAC in the superior court, but because the federal
SAC was never filed in the superior court, the court took the matter off calendar.
       On August 26, 2013, appellant (using her third attorney) filed a new second
amended complaint in superior court (state SAC). Respondents demurred and, on
December 2, 2013, the trial court sustained respondents’ demurrer to the entirety of the
state SAC with leave to amend.
       On December 9, 2013, appellant filed her TAC, which added several new causes
of action. Respondents demurred to the causes of action from the state SAC and filed a
motion to strike the new causes of action. On March 19, 2014, the superior court
sustained without leave to amend the demurrer and granted the motion to strike the new
causes of action in the TAC, finding they “were filed without leave of court.” Judgment
in respondents’ favor was entered on April 23, 2014, and several defendants not parties to




       6
        On August 19, 2010, appellant filed a notice of lis pendens and subsequently
recorded it on August 23, 2010.
       7
       See Odimbur v. Wells Fargo Bank (Mar. 1, 2012, CV 11-04581 DDP (JEMx))
2012 U.S. Dist. Lexis 27198, 2012 WL 680057.


                                             6
this appeal were dismissed on April 28, 2014. On May 1, 2014,8 respondents filed and
served notice of entry of judgment.
       On June 30, 2014, appellant filed a timely notice of appeal.9


                                       DISCUSSION
       On appeal, appellant contends the superior court erred in sustaining the demurrer
without leave to amend as to two claims in the TAC: (1) breach of contract based on the
foreclosure of appellant’s property and the failure to pursue in good faith modification of
her loan despite her payment under the forbearance agreements; and (2) if the
forbearance agreements were not valid contracts, promissory estoppels based on
appellant’s justifiable and detrimental reliance on respondents’ promises to stop
foreclosure proceedings and modify the loan.10 Appellant also seeks this Court’s
permission for leave to amend the TAC to allege causes of action for restitution or unjust
enrichment, for violation of the federal Real Estate Settlement Practices Act (RESPA),
title 12 United States Code section 2605(e)(1)(B), and for unfair competition under
Business and Professions Code section 17200.
       We affirm.




       8
         Respondents also filed on May 1, 2014, a motion to expunge appellant’s notice
of lis pendens which was granted on June 4, 2014.
       9
          Appellant, who was in pro. per. after substituting in to represent herself after her
fifth attorney, elected to proceed by clerk’s transcript, without designating additional
documents, and without a reporter’s transcript.
       10
          Appellant does not challenge the portions of the superior court’s order
sustaining respondents’ demurrer as to her causes of action for declaratory relief and
cancellation of instruments nor does she challenge the superior court’s grant of the
motion to strike the five additional causes of action added in the TAC for accounting,
fraud, violation of the Rosenthal Fair Debt Collection Practices Act, quiet title, and
negligence.

                                              7
I.     Standard of Review
       We review the trial court’s decision de novo. (McCall v. PacifiCare of California,
Inc. (2001) 25 Cal.4th 412, 415.)
       “In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action.” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
       The court “may disregard allegations that are contrary to law or to a fact of which
judicial notice may be taken.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2013) ¶ 8:136.1, p. 8–102.2; Fundin v. Chicago Pneumatic Tool
Co. (1984) 152 Cal.App.3d 951, 955.) Furthermore, “[w]here the demurrer is to an
amended complaint, the reviewing court may properly consider factual allegations in the
prior complaints.” (Eisenberg et al., supra, ¶ 8:136.1b, p. 8–102.2; People ex rel.
Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957.)
       “The plaintiff has the burden of showing that the facts pleaded are sufficient to
establish every element of the cause of action and overcoming all of the legal grounds on
which the trial court sustained the demurrer, and if the defendant negates any essential
element, we will affirm the order sustaining the demurrer as to the cause of action.
[Citation.] We will affirm if there is any ground on which the demurrer can properly be
sustained, whether or not the trial court relied on proper grounds or the defendant
asserted a proper ground in the trial court proceedings.” (Martin v. Bridgeport
Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; Sui v. Price (2011) 196
Cal.App.4th 933, 938.)
       If the trial court sustains a demurrer without leave to amend, a plaintiff must
demonstrate how the complaint could be amended to state a valid cause of action.

                                             8
(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “‘To satisfy that
burden on appeal, a plaintiff “must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.” [Citation.] . . .
[Citation.] The plaintiff must clearly and specifically set forth the “applicable substantive
law” [citation] and the legal basis for amendment, i.e., the elements of the cause of action
and authority for it. Further, the plaintiff must set forth factual allegations that
sufficiently state all required elements of that cause of action.’” (Rossberg v. Bank of
America, N.A. (2013) 219 Cal.App.4th 1481, 1491.)
       “An appellate court may . . . consider new theories on appeal from the sustaining
of a demurrer to challenge or justify the ruling. As a general rule a party is not permitted
to change its position on appeal and raise new issues not presented in the trial court.
[Citation.] This is particularly true ‘when the new theory depends on controverted factual
questions whose relevance thereto was not made to appear’ in the trial court. [Citation.]
However, ‘a litigant may raise for the first time on [303] appeal a pure question of law
which is presented by undisputed facts.’ [Citations.] A demurrer is directed to the face
of a complaint (Code Civ. Proc., § 430.30, subd. (a)) and it raises only questions of law
(Code Civ. Proc., § 589, subd. (a); [citation]). Thus an appellant challenging the
sustaining of a general demurrer may change his or her theory on appeal [citation], and an
appellate court can affirm or reverse the ruling on new grounds. [Citations.] After all,
we review the validity of the ruling and not the reasons given.” (B & P Development
Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)
       Appellant has not met her burden to show how she could amend either cause of
action pled in her TAC or a new cause of action to establish every requisite element.
II.    Breach of Contract Claim
       The elements of breach of contract are “(1) the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting
damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990)
222 Cal.App.3d 1371, 1388.) We will affirm the order sustaining the demurrer if
defendants negate any element and will affirm on any ground on which the demurrer can

                                               9
properly be sustained, whether or not the trial court relied on proper grounds or the
defendants asserted a proper ground in the trial court proceedings. (Martin v. Bridgeport
Community Assn., Inc., supra, 173 Cal.App.4th at p. 1031.)
       A. Alleged Promise to Suspend Foreclosure
       Appellant argues that “[a]lthough it is unclear when the forbearance agreement
would end,[11] it is clear that [appellant] kept her end of the bargain” and respondents
breached their promise to suspend foreclosure on her property. If an ambiguous contract
is the basis of an action and plaintiff alleges a construction of the contract that is not
clearly erroneous, the court must accept that allegation as correct.” (Eisenberg et al.,
supra, ¶ 8:136.1a, p. 8–101; Marina Tenants Ass’n v. Deauville Marina Development Co.
(1986) 181 Cal.App.3d 122, 128.) Here, the forbearance agreements are ambiguous as to
when they terminate but appellant’s contention that the agreements were still in effect on
July 16, 2010, when respondents foreclosed on her property is clearly erroneous.
       The letters accompanying the forbearance agreements state that ASC “will instruct
our foreclosure counsel to suspend foreclosure proceedings once the initial installment
has been received, and to continue to suspend the action as long as you keep to the terms
of the forbearance agreements.” Each forbearance agreement states that the agreement
“temporarily accepts reduced installments or maintains regular monthly payments as
outlined in section 5 below. Upon successful completion of the Agreement, your loan
will not be contractually current.” Section 5 in turn states “Each payment must be
remitted according to the schedule below” and lists a plan payment number, the date the
payment is due, and the amount of the payment. Specifically, section 5 in the first
agreement provided for four monthly payments due on the 11th of each month from
September 2009 to December 2009. In the second agreement, section 5 provided for four
monthly payments due on the 12th of each month from February 2010 to May 2010. The
agreements, however, warn “[i]f any installment is not received on or before the
respective due date, the Agreement will be void . . . .” Thus, each monthly installment

       11
         Appellant acknowledges that respondents “never promised indefinite
forbearance.”

                                              10
payment under the agreement would result in forbearance until the next installment was
due, but if that next payment was not made, the agreement would be “void” and the
promise of forbearance would cease. Presumably, when the last installment payment was
made, the forbearance agreement would be “complete” but even assuming that the last
installment would also result in a forbearance of a month, the second forbearance
agreement would have ended on June 12, 2010. Here, the foreclosure occurred on July
16, 2010, more than two months after the last payment.
       In the TAC, appellant alleges that, after the final May 2010 payment under the
second forbearance agreement, her bank account “had sufficient funds left on deposit to
cover the June 2010 installment [citation], leaving only the July 2010 installment to be
paid when [appellant] ‘return[ed] from [her] missionary trip on July 23, 2010,’” but
appellant does not allege that she authorized ASC to withdraw funds directly from her
account for June or that appellant and ASC reached any agreement regarding a
forbearance extending into June or July or the amount of the payment to be due for a June
or July “installment.”12
       In her opening brief, appellant also argues that respondents had an “implied
obligation to explain further actions” upon appellant’s successful completion of the
forbearance agreement. Assuming arguendo such a vague promise was made,
enforceable and breached, it is unclear how this breach caused appellant harm. Appellant
was out of the country until July 23, 2010—one week after the trustee sale of her
property on July 16, 2010, and over two months after appellant completed the final May
12, 2010 payment provided for in the second forbearance agreement. She does not allege
that she had provided respondents with an overseas address to contact her during her
extended absence or that she contacted ASC during this time frame so that any
explanation of “further actions” would have reached her before the trustee sale. Indeed,
in her January 22, 2010 correspondence with ASC, arranging to make the four monthly

       12
         Indeed, appellant’s allegations concerning her ability to pay the June and July
2010 “installment” implicitly acknowledge that without further payment the second
forbearance agreement would not automatically extend into June and July.

                                            11
payments from February 2010 to May 2010 under the second forbearance agreement,
appellant simply indicates that “[w]e will speak again when I return from my missionary
trip in July 23, 2010 so that I can follow up on these transactions.” Thus, despite ASC’s
request in the letter accompanying the forbearance agreement, stating “During this
period, we are requesting that you maintain contact with our office in order to establish
acceptable arrangements for bringing your loan current,” and that the last forbearance
payment she had arranged to make was on May 12, 2010, appellant apparently did not
plan to contact ASC again until July 23, 2010—or six months later. In a cause of action
for breach of contract, the plaintiff must plead that the defendant’s breach was a
substantial factor in causing his or her damages. (See Douglas E. Barnhart, Inc. v. CMC
Fabricators, Inc. (2012) 211 Cal.App.4th 230, 247, fn. 3.) Appellant cannot allege that
her damages were proximately caused by respondents’ failure to “explain further action”
before proceeding with foreclosure.
       B. Alleged Promise to Pursue a Loan Modification
       Appellant argues on appeal that the TAC could be amended to allege a claim
based on respondents’ breach of their promise in the forbearance agreements to pursue in
“good faith” a loan modification. Appellant also argues that, “although these forbearance
agreements were not specifically designated a Trial Payment Plan, [respondents were]
legally obligated to offer a loan modification under the [federal] Home Affordable
Modification Program (HAMP).” Appellant, however, has failed to demonstrate how the
complaint could be amended to state a valid cause of action based on these allegations.
(Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
       The letters accompanying the agreements state that the agreement is “not a waiver
of the accrued or future payments that become due, but a trial period showing you can
make regular monthly payments. Please note that investor approval is still pending.”
Both the forbearance agreements and accompanying letters, after explaining that the
installment payments may be less than the total amount due and appellant may still have
outstanding payments and fees, state “[a]ny outstanding payments and fees will be
reviewed for loan modification. If approved for a loan modification, based on investor

                                            12
guidelines, this will satisfy the remaining past due payments on your loan and we will
send you a loan modification agreement. An additional contribution may be required.”
The agreements then state in the next section, “The lender is under no obligation to enter
into any further agreement, and this Agreement shall not constitute a waiver of the
lender’s right to insist upon strict performance in the future.” The agreements further
state that “The lender, in its sole discretion and without further notice to you, may
terminate this Agreement.”
       Assuming arguendo that respondents breached a promise to pursue in good faith a
loan modification, the agreements do not promise to offer appellant a loan modification
or provide any indication what the loan modification might have been, assuming
appellant was deemed qualified. Moreover, in an ASC “Financial Worksheet” dated July
1, 2009,13 appellant updated her total income as $2,000 per month and her monthly
expenses, excluding her existing mortgage14 but including non-escrowed taxes and
insurance, as $1,830 per month, calling into question whether appellant could have
qualified for a modified loan even with the lower interest rate of “4-3.5” percent that
appellant stated she needed. Any damages, therefore, would be speculative. (Scott v.
Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473 [“It is fundamental that [contract]
damages which are speculative, remote, imaginary, contingent, or merely possible cannot
serve as a legal basis for recovery”], disapproved on another ground in Guz v. Bechtel
National Inc. (2000) 24 Cal.4th 317, 352, fn. 17.)
       With respect to HAMP, appellant does not contend “that the HAMP
[modification] or other modification must be offered,” but instead simply asserts “those
programs must be considered.” Appellant bases her arguments on West v. JPMorgan
Chase Bank, N.A. (2013) 214 Cal.App.4th 780 (West) and its interpretation of a trial
payment plan (TPP) under HAMP as incorporating United States Department of


       13
        The “Financial Worksheet” was attached as an exhibit to appellant’s original
complaint.
       14
            Her existing mortgage payment was $1,896.20 per month.

                                             13
Treasury’s Supplemental Directive 09-01 under Civil Code section 1643 in order to make
the TPP “lawful.” (West, supra, 214 Cal.App.4th at pp. 797-798 [“To make the Trial
Plan Agreement lawful, it must be interpreted to include the provisio imposed by
Directive 09-01”].) Here, appellant concedes that she “never argued that the
[forbearance] agreement was a ‘Trial Period Plan’” and the record does not support
construing the forbearance agreements as TPP’s.15 Accordingly, neither West nor
Directive 09-01 control in this case.
       To the extent appellant seeks to amend her complaint to assert a claim under
HAMP generally, rather than a breach of contract claim based on a TPP incorporating
HAMP regulations, courts have held that borrowers are not intended third party
beneficiaries of HAMP contracts and have no right to enforce HAMP loan modification
provisions. (See, e.g., Pfeifer, supra, 211 Cal.App.4th at p. 1282, fn. 17; Wigod v. Wells
Fargo Bank, N.A. (7th Cir. 2012) 673 F.3d 547, 559, fn. 4 [stating that courts have
uniformly rejected claims of homeowners trying to assert rights arising under HAMP and
citing cases].)
III.   Promissory Estoppel Claim
       “‘“The elements of a promissory estoppel claim are ‘(1) a promise clear and
unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)
[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the
estoppel must be injured by his reliance.’”’ (Advanced Choices, Inc. v. State Dept. of


       15
          Under Supplemental Directive 09-01, before a lender offers a TPP to a
distressed borrower, the lender (1) has already found that the borrower satisfies certain
simple threshold requirements under HAMP regarding the basic nature of the loan
obligation, (2) has already calculated a trial modification payment amount using a
“waterfall” method of specified steps that drops the borrower’s monthly mortgage
payment to the HAMP figure of 31 percent of monthly gross income, and (3) has already
determined that it is more profitable to modify the loan under HAMP than to foreclose
upon it. (West, supra, 214 Cal.App.4th at pp. 787-788; Supplemental Directive 09-01,
supra, at pp. 2-5, 8-10, 14-18.) There is no indication in the record that any of these steps
had been taken prior to offering the forbearance agreements and the agreements
themselves do not suggest that they are TPP’s.

                                             14
Health Services (2010) 182 Cal.App.4th 1661, 1672.)” (Aceves v. U.S. Bank N.A. (2011)
192 Cal.App.4th 218, 225.)
          Appellant relies upon the arguments she made in her breach of contract claim,
noting that a promissory estoppel action “is identical to a contract action except there is a
lack of consideration.” Appellant makes no new arguments, other than a single sentence
without citation about the relative bargaining strength of the parties—which we decline to
address. (People v. Stanley (1995) 10 Cal.4th 764, 793 [court may treat as waived issue
that was not supported by argument or citation to relevant authority].) For the reasons
discussed, ante, the trial court did not err in sustaining the demurrer to this cause of
action.
IV.       Restitution Claim
          Appellant next argues that she should be allowed to amend her complaint to state a
cause of action for restitution or unjust enrichment. Appellant contends that respondents
“received extra funds they were not entitled to at the expense of [appellant],” reasoning
“[a]fter 5 years of making over $120,000 in payments, the property by necessity would
have equity and the loan amount to Wells Fargo [Bank], N.A. would not have been more
than the original $300,000 of the note.” Based on a calculation using appellant’s
payments alleged in the TAC and a “standardized amortization schedule,” appellant
contends that the balance of the loan was $286,564.3516—not taking into account
foreclosure fees which appellant states “would be minimal at best” —so that of the
$304,547.60 that respondents recovered at the trustee sale, $17,938.23 was owed to
appellant.
          “Whether termed unjust enrichment, quasi-contract, or quantum meruit, the
equitable remedy of restitution when unjust enrichment has occurred ‘is an obligation
(not a true contract [citation]) created by the law without regard to the intention of the
parties, and is designed to restore the aggrieved party to his or her former position by

          16
          In her reply brief, appellant apparently corrects this number to $286,340.31 and
then—based on her calculation of the foreclosure fees, statutory late fees and property
taxes for one year—concludes the “total” amount owed to respondents was $293,423.32.

                                              15
return of the thing or its equivalent in money.’ (1 Witkin, Summary of Cal. Law (10th
ed. 2005) Contracts, § 1013, p. 1102.)” (Federal Deposit Ins. Corp. v. Dintino (2008)
167 Cal.App.4th 333, 346.) However, “an action based on an implied-in-fact or quasi-
contract cannot lie where there exists between the parties a valid express contract
covering the same subject matter.”17 (Lance Camper Manufacturing Corp. v. Republic
Indemnity Co. of Am., supra, 44 Cal.App.4th at p. 203; Klein v. Chevron U.S.A., Inc.
(2012) 202 Cal.App.4th 1342, 1388 [“A plaintiff may not . . . pursue or recover on a
quasi-contract claim if the parties have an enforceable agreement regarding a particular
subject matter”].) Here, appellant cannot pursue a claim for restitution because the
determination of the amounts owed by appellant under her loan is a subject matter
covered by contract—the promissory note and the deed of trust that secured the note.18
V.     Claim for Violation of RESPA
       Appellant argues that she should be allowed to amend her complaint to state a
claim for violations of RESPA, title 12 United States Code section 2605(e)(1)(B), based
on respondents’ failure to respond to two of her letters, which she contends were
qualified written requests (QWR).19

       17
          Benefits conferred under a contract may be subject to restitution if the contract
is rescinded or determined to be unenforceable. (See 1 Witkin, Summary of Cal. Law,
supra, Contracts, § 1042, pp. 1132-1133; Lance Camper Manufacturing Corp. v.
Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 203 [party to an express
contract can assert a claim for restitution based on unjust enrichment by “alleg[ing in that
cause of action] that the express contract is void or was rescinded”].) Here, there is no
claim that the note and deed of trust were rescinded or should be determined to be
unenforceable.
       18
          Even assuming appellant intended to allege a breach of contract claim based on
overpayment under the promissory note and deed of trust, appellant could not state a
claim on the current state of the record as the promissory note is not in the record or a
judicially noticed document and the TAC does not allege its salient terms, leaving
unknown the amount and the kinds of charges, fees and penalties agreed to by the parties
in the event of appellant’s delinquency and default.
       19
          Appellant in her reply brief attempts to allege that a third letter was also a QWR,
after respondents raised this third letter as demonstrating that the prior two letters were

                                             16
       RESPA sets forth requirements for the servicing of mortgage loans, and among
other things, requires a loan servicer to respond to a QWR from a borrower. (Jenkins v.
JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 530 (Jenkins).) When
violated, the statute permits a borrower to obtain any “actual damages to the borrower as
a result of the failure” and “any additional damages, as the court may allow, in the case of
a pattern or practice of noncompliance with the requirements of [RESPA], in an amount
not to exceed $1,000.” (12 U.S.C. § 2605(f)(1); see 12 C.F.R. § 1024.21(f)(1)(i);
Jenkins, supra, at p. 531.)
       RESPA defines a QWR as a written correspondence that “(i) includes, or
otherwise enables the servicer to identify, the name and account of the borrower; and [¶]
(ii) includes a statement of the reasons for the belief of the borrower, to the extent
applicable, that the account is in error or provides sufficient detail to the servicer
regarding other information sought by the borrower.” (12 U.S.C. § 2605(e)(1)(B).) The
first letter appellant contends is a QWR is her January 22, 2010 letter to ASC—regarding
her installment payments under the second forbearance plan—in which she stated,
“[s]ince you are taking the funds from my bank each month directly this time, we should
not have the issues that we had previously where you placed a Trustee Sale on my home
and the payments should be applied correctly.” The letter then thanks the ASC employee
for explaining how to make the payments while appellant was out of the country and
states that she will follow up when she returned in July 2010. We disagree that the
January 22, 2010 letter is a QWR. The letter taken as a whole indicates that appellant’s
focus was to arrange payments on a second forbearance agreement during her absence
from the country and does not indicate that she expected any response to her letter.


not QWR’s and noting that appellant did not seek leave on appeal to bring a cause of
action based on this third letter. We decline to consider this third letter as it is raised for
the first time in the reply brief and no good cause is demonstrated for the delay. (See,
e.g., Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) We also note that this
third letter is dated July 29, 2010, after the trustee sale had been completed, when ASC
would no longer have been appellant’s servicer. As appellant acknowledges in her briefs,
the “borrower-lender relationship ended” when “the loan was satisfied.”

                                              17
Rather, her letter suggests that she does not believe any further contact would be
necessary by either party until after her return from her trip when she planned to speak
with ASC to follow up on the payments made while she was out of the country. The
letter does not state “reasons” appellant believes “the account is in error” or suggests that
information is being sought.
       The second letter appellant contends is a QWR is her handwritten note on the
second forbearance agreement. In her note, appellant stated that she only missed three
monthly payments as she had paid from September 2009 to December 2009 and that she
did not know “where ASC claim[ed she was delinquent] from July 09 to January 10.”
She continued, “I strongly disagree with your calculations of my past dues.” Assuming
arguendo that the handwritten note is a QWR, appellant has not sufficiently alleged
specific facts of actual damage resulting from respondents’ failure to comply with
RESPA.
       “Asserting a defendant’s failure to respond to a QWR and the suffering of general
damages is insufficient to state a claim under RESPA. [Citation.] Instead, federal courts
have read 12 United States Code section 2605 as requiring a plaintiff to plead specific
facts showing both the defendant’s failure to respond and the plaintiff’s suffering of
‘pecuniary damages’ in order to avoid the dismissal of his or her RESPA claim.
[Citations.] In effect, this pleading requirement has limited RESPA claims to
circumstances in which a plaintiff can allege specific facts to show causation—‘“actual
damages to the borrower as a result of the failure [to comply with RESPA
requirements].”’” (Jenkins, supra, 216 Cal.App.4th at pp. 531-532.)
       Consequently, “harms generally resulting from a plaintiff’s default and the
foreclosure of his or her home” are not sufficient to plead actual damages under RESPA.
(Jenkins, supra, 216 Cal.App.4th at p. 532.) Thus, in Jenkins, supra, 216 Cal.App.4th at
pages 531-532, the court concluded that the plaintiff could not assert that her harms—
“‘devastation of her credit,’ ‘emotional distress related to the threatened foreclosure of
her home,’ ‘late fees’ and time spent attempting to avoid foreclosure”—were the result of



                                             18
the defendant’s failure to respond to the QWR “because she admits she sent the QWR
months after her default and the receipt of the notice of default.” (Id. at pp. 532-533.)
       Here, appellant attempts to avoid the effect of Jenkins by alleging that she “faced
the emotional strain and grief, constant anxiety of losing a home and deep emotional
distress on a nearly daily basis. This anxiety was separate than that caused by the default
as she thought things were going well and the improper accounting created new stress
and grief.” This allegation is insufficient to show “actual damages.”
       Preliminarily, such a conclusory allegation does not satisfy the requirement that
appellant allege specific facts to show causation. Moreover, appellant’s handwritten note
on the second forbearance agreement concerned only her payments under the first
forbearance plan and how they were applied. Appellant states she did not know “where
ASC was claiming from July 09 to January 10,” noting that she had “paid from
September 09, to or up to December 2009.” Thus, under her reasoning, she “only owed
or missed three monthly payments,” which the note suggests she believed to be July
2009, August 2009 and January 2010. The letter accompanying the forbearance
agreement states that “[a]ny installments will be applied to the delinquent payments on
the loan” and the agreement was not a waiver of “future payments that become due.”
Consequently, appellant’s payments under the first forbearance agreement were to be
applied to the five delinquent payments described in that agreement—“your loan is due
for 5 installments, from April 01, 2009 through August 01, 2009,” and not applied to the
regular monthly mortgage payments that became due in the same month payment was
made. But irrespective of how her payments were applied—to regular monthly mortgage
payments as they became due or past due delinquent payments—appellant would have
been aware that her single payment per month under the first forbearance agreement
would not satisfy both the currently due payments and the delinquent payments. Like the
plaintiff in Jenkins, appellant cannot assert her harms were the result of respondents’
failure to respond to the QWR because she “sent the QWR months after her default and
the receipt of the notice of default” (Jenkins, supra, 216 Cal.App.4th at pp. 532-533), and
appellant had already entered into one forbearance agreement, was unable to bring her

                                             19
loan current during the first forbearance, made no payment in January 2010, and was
entering a second forbearance agreement after receiving a notice of trustee sale.
       Appellant has failed to meet her burden to show that she can set forth factual
allegations that sufficiently state all required elements of a claim based on a violation of
RESPA.
VI.    Unfair Competition
       On appeal, appellant contends she should be allowed to amend her complaint to
state a cause of action for unfair competition based.
       “The purpose of the UCL ‘is to protect both consumers and competitors by
promoting fair competition in commercial markets for goods and services.’” (Drum v.
San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252.) “[T]he California
Supreme Court held that the UCL ‘“establishes three varieties of unfair competition—
acts or practices which are [1] unlawful, or [2] unfair, or [3] fraudulent.”’” (Id. at p.
253.) Since the UCL is written in the disjunctive, a business act or practice may be
alleged to be all or any of the three varieties. (Berryman v. Merit Property Management,
Inc. (2007) 152 Cal.App.4th 1544, 1554.) In order to state a claim under the unlawful
prong, a plaintiff must allege facts that show anything that can reasonably be
characterized as a business practice is also a violation of law. (People v. McKale (1979)
25 Cal.3d 626, 632.) To show a violation under the fraudulent prong, a plaintiff must
show that members of the public are likely to be deceived by the practice. (Weinstat v.
Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1223, fn. 8.) “A plaintiff’s burden
thus is to demonstrate that the representations or nondisclosures in question would likely
be misleading to a reasonable consumer.” (Ibid.)
       Appellant alleges unlawful business practices based on violations of HAMP and
RESPA. As we have concluded that appellant has not stated a claim for these alleged
violations, appellant necessarily cannot characterize those business practices as a
violation of law.
       Next, appellant alleges that respondents engaged in an unfair business practice by
not properly accounting for payments made under the forbearance agreements and argues

                                              20
that “[a] fair business practice would be to properly account for money and explain how
monies we[re] applied to the debt.” As noted previously, the letter accompanying each
forbearance agreement explicitly states that “[a]ny installments will be applied to the
delinquent payments on the loan” and the agreement was not a waiver of “future
payments that become due.”
       Appellant also alleges that respondents engaged in fraudulent business practices
by engaging in “dual tracking” but concedes that “[d]ual tracking was not made illegal
until after this foreclosure.” Moreover, appellant’s conclusory statements fail to specify
the deceptive representations or nondisclosures and how they would likely mislead a
reasonable consumer. Appellant has failed to meet her burden.
       Appellant contends that respondents engaged in a fraudulent business practice by
“not properly accounting for the trustee sale proceeds, the amounts owed, and not
returning the differences” to appellant. Appellant’s allegations, however, did not, as she
contends, demonstrate that respondents “accounting was incorrect.” Appellant’s
purported calculation of the loan balance in her briefs is flawed and incomplete on its
face. Her calculations do not take into account various fees, charges and expenses agreed
upon by the parties. For instance, the deed of trust states that the lender may charge
appellant “fees for services performed in connection with [appellant’s] default, . . .
including, but not limited to, attorney’s fees, property inspection and valuation fees.”
The notice of default states that, in addition to missed mortgage payments, also due were
“late charges as set forth in said note and deed of trust, advances, assessment fees and or
trustee’s fees, if any.” Again, appellant’s calculations do not incorporate these amounts
and, as already discussed, it is unknown if any other fees, charges and penalties were
agreed to in the promissory note.
       We have considered appellant’s remaining contentions and find them to be
without merit.




                                             21
                                    DISPOSITION
      The judgment is affirmed. Respondents shall recover their costs on appeal.
      NOT TO BE PUBLISHED.



                                                CHANEY, J.


We concur:



             ROTHSCHILD, P. J.



             MOOR, J.*




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                           22
