Filed 11/18/13 Palomera v. Downey Savings and Loan CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JUAN PALOMERA et al.,                                                B242225

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. VC059938)
         v.

DOWNEY SAVINGS AND LOAN
ASSOCIATION F.A., et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Margaret
Miller Bernal, Judge. Affirmed.
         Arya Law Center and Brian T. Stuart, for Plaintiffs and Appellants.
         Malcolm Cisneros, William G. Malcolm and Brian S. Thomley, for Defendants
and Respondents Central Mortgage Co., Deutsche Bank National Trust Co. and Mortgage
Electronic Registration Systems, Inc.
                                       __________________________
       Juan and Gloria Palomera sued their original lender, Downey Savings and Loan
Association, and a number of other defendants including Deutsche Bank National
Trust Co., Mortgage Electronic Registration Systems, Inc. (MERS) and Central
Mortgage Co. (CMC) alleging defendants had wrongfully foreclosed on the Palomeras’
Pico Rivera home in August 2011. The trial court sustained the demurrers of Deutsche
Bank, MERS and CMC to this claim without leave to amend on the grounds the
Palomeras lacked standing to sue under California’s nonjudicial foreclosure statute, Civil
Code sections 2924 through 2924k,1 and securitization of the note did not prevent
defendants from enforcing their interest in the deed of trust. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In September 2004 the Palomeras executed a promissory note in favor of Downey
Savings for the principal amount of $290,000. The note was secured by a deed of trust
encumbering the property, which was duly recorded. In a provision entitled “Sale of
Note; Change of Loan Servicer; Notice of Grievance,” the deed of trust provided “[t]he
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 (known as the ‘Loan Servicer’) that collects Periodic Payments due under the
Note and this Security Instrument and performs other mortgage loan servicing obligations
under the Note, this Security Instrument, and Applicable Law. There also might be one
or more changes of the Loan Servicer unrelated to a sale of the Note.”
       According to the Palomeras, the note was securitized and deposited into Trust
2004-AR2 before October 29, 2004. In December 2005 Downey Savings assigned its
beneficial interest in the deed of trust to MERS, both as the beneficiary of the deed of
trust and as the nominee of CMC. In April 2011, after the Palomeras had fallen behind in
their payments,2 MERS, as the nominee of CMC, assigned its beneficial interest in the

1
       Statutory references are to the Civil Code unless otherwise specified.
2
      In November 2009 Juan Palomera filed a voluntary petition for bankruptcy, which
was discharged in April 2010. The bankruptcy petition listed the value of the property as
$180,000 subject to a secured claim of $317,081 in favor of CMC.

                                             2
deed of trust to CMC. A notice of default was recorded on April 13, 2011 by MTC
Financial, Inc. as agent for the beneficiary. CMC, identifying itself as the beneficiary,
executed a substitution of trustee on May 16, 2011 (recorded on July 19, 2011),
substituting MTC Financial (dba Trustee Corps) as trustee of the deed of trust. Also on
May 16, 2011 (but not recorded until August 29, 2011) CMC executed an assignment of
deed of trust transferring its beneficial interest to Deutsche Bank.
       When the Palomeras failed to cure the default, Trustee Corps, in its capacity as
trustee, recorded a notice of trustee’s sale dated July 14, 2011. The foreclosure sale
proceeded on August 15, 2011, and the property was sold to Deutsche Bank. On
August 29, 2011 Trustee Corps recorded a trustee’s deed upon sale reflecting sale of the
property to Deutsche Bank.
       On November 10, 2011 the Palomeras filed a complaint seeking damages,
declaratory relief and restitution and alleging several causes of action, including wrongful
foreclosure,3 fraud, slander of title, quiet title and unfair business practices. With respect
to the first cause of action, the complaint asserted Deutsche Bank, MERS and CMC
lacked standing to foreclose because they had failed to perfect their security interest in
the property and the deed of trust now held by Deutsche Bank was void. In particular,
the Palomeras alleged the promissory note had been deposited by Downey Savings into a
securitized trust, and, by operation of law, the deed of trust had been assigned to the same
trust. (See § 2936 [“[t]he assignment of a debt secured by mortgage carries with it the


3
        The Palomeras titled this cause of action as “Lack of Standing to Foreclose,” but we
understand the claim as a variant of a wrongful foreclosure cause of action. The failure of
the Palomeras to title their cause of action as one for wrongful foreclosure is irrelevant.
(See, e.g., Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419,
427 [“the nature of a cause of action does not depend on the label the plaintiff gives it”];
Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1034 [“scope of the
duty does not depend on the labels given to the causes of action in the third party
complaint”]; Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002)
95 Cal.App.4th 1273, 1281 [“[A] court is not bound by the captions or labels of a cause of
action in a pleading. The nature and character of a pleading is to be determined from the
facts alleged, not the name given by the pleader to the cause of action.”].)

                                              3
security”].) Downey’s subsequent assignment of the deed of trust to MERS was thus a
legal nullity, as were all subsequent assignments of the deed of trust.
       The trial court sustained Deutsche Bank, MERS and CMC’s demurrers to the first
amended complaint, including the wrongful foreclosure cause of action.4 Relying on the
decisions in Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149
(Gomes) and Robinson v. Countrywide Home Loans, Inc. (2011) 199 Cal.App.4th 42, the
court ruled California’s nonjudicial foreclosure scheme does not authorize a judicial
action to challenge the authority or standing of the person initiating a foreclosure.
Further, under Gomes securitization of the note did not prevent Deutsche Bank, MERS
and CMC from enforcing their interest in the deed of trust.5
                                      CONTENTIONS
       The Palomeras contend the trial court misapplied Gomes and the cases following it
to the facts they alleged; post-securitization assignments are void under section 2936; and
they are entitled to challenge post-sale any wrongful act of the foreclosing entity,
including its authority to initiate foreclosure.
                                        DISCUSSION
       1. Standard of Review
       On appeal from an order dismissing an action after the sustaining of a demurrer,
we independently review the pleading to determine whether the facts alleged state a cause
of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We
may also consider matters that have been judicially noticed. (Committee for Green
Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; see Serrano

4
      The Palomeras filed a first amended complaint on February 1, 2012 containing the
same allegations. They have not appealed from the dismissal of their other claims.
5
       The Palomeras appealed directly from the order sustaining the demurrers before
entry of the order dismissing the complaint. The court’s order of dismissal was signed
and filed on July 2, 2012. We treat the Palomeras’ premature notice of appeal, filed
June 19, 2012, as filed immediately after entry of judgment. (Cal. Rules of Court,
rule 8.104(d)(2).)

                                               4
v. Priest (1971) 5 Cal.3d 584, 591.) We give the complaint a reasonable interpretation,
“treat[ing] the demurrer as admitting all material facts properly pleaded,” but do not
“assume the truth of contentions, deductions or conclusions of law.” (Aubry, at p. 967;
accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; see Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 20 [demurrer tests sufficiency of complaint based on facts
included in the complaint, those subject to judicial notice and those conceded by
plaintiffs].) We liberally construe the pleading with a view to substantial justice between
the parties. (Code Civ. Proc., § 452; Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.)
       2. The Trial Court Did Not Err in Concluding the Palomeras Lacked Standing
          To Challenge the Sale of Their Home After Nonjudicial Foreclosure
       Sections 2924 through 2924k “provide a comprehensive framework for the
regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a
deed of trust.” (Moeller v. Lien (1994) 25 Cal.App.4th 822, 830 (Moeller).)6 “The
purposes of this comprehensive scheme are threefold: (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.” (Id. at p. 830; Gomes, supra, 192 Cal.App.4th at p. 1154.)
“‘Because of the exhaustive nature of this scheme, California appellate courts have


6
        In Moeller this court summarized the procedures leading to a nonjudicial
foreclosure: “Upon default by the trustor [under a deed of trust containing a power of
sale], the beneficiary may declare a default and proceed with a nonjudicial foreclosure
sale. [Citations.] The foreclosure process is commenced by the recording of a notice of
default and election to sell by the trustee. [Citations.] After the notice of default is
recorded, the trustee must wait three calendar months before proceeding with the sale.
[Citations.] After the 3-month period has elapsed, a notice of sale must be published,
posted and mailed 20 days before the sale and recorded 14 days before the sale.
[Citations.] The trustee may postpone the sale at any time before the sale is completed.
[Citations.] If the sale is postponed, the requisite notices must be given. [Citation.] . . .
The property must be sold at public auction to the highest bidder.” (Moeller, supra,
25 Cal.App.4th at p. 830.)

                                              5
refused to read any additional requirements into the non-judicial foreclosure statute.’”
(Gomes, at p. 1154; see Moeller, at p. 834 [“[i]t would be inconsistent with the
comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to
incorporate another unrelated cure provision into statutory nonjudicial foreclosure
proceedings”].)
       In recent years “California courts have refused to delay the nonjudicial foreclosure
process by allowing trustor-debtors to pursue preemptive judicial actions to challenge the
right, power, and authority of a foreclosing ‘beneficiary’ or beneficiary’s ‘agent’ to initiate
and pursue foreclosure.” (Jenkins v. JP Morgan Chase Bank, N.A. (2013)
216 Cal.App.4th 497, 511 (Jenkins).) Due to the ubiquity of the MERS system,7 virtually
all of these decisions involved allegations that securitization and subsequent assignment of
the debt through the MERS system resulted in the separation of the promissory note from
the deed of trust, which plaintiffs like the Palomeras have alleged results in the invalidity
of subsequent assignments, including the ultimate sale of the property. (See, e.g., Gomes,
supra, 192 Cal.App.4th at p. 1155 [authority of lender’s nominee (MERS) to initiate
foreclosure proceedings could not be challenged where trust deed named lender’s nominee
and granted it foreclosure rights; “[t]he recognition of the right to bring a lawsuit to
determine a nominee’s authorization to proceed with foreclosure on behalf of the
noteholder would fundamentally undermine the nonjudicial nature of the process and
introduce the possibility of lawsuits filed solely for the purpose of delaying valid
foreclosures”]; Robinson v. Countrywide Home Loans, Inc., supra, 199 Cal.App.4th at
p. 46 [statutory scheme does not provide for preemptive suits challenging standing];

7
        The MERS system was devised by the mortgage banking industry to facilitate the
securitization of real property debt instruments. (See Fontenot v. Wells Fargo Bank, N.A.
(2011) 198 Cal.App.4th 256, 267.) “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 and
mortgage servicing rights. The notes may thereafter be transferred among members
without requiring recordation in the public records.” (Ibid.; see generally Gomes, supra,
192 Cal.App.4th at p. 1151 [describing MERS].)

                                              6
Herrera v. Federal Nat. Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1505 [original
lender’s nominee (MERS) could initiate foreclosure proceedings despite absence of
agency agreement between MERS and original lender’s successors and assigns]; Shuster
v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 511 [“California’s
statutory nonjudicial foreclosure scheme (§§ 2924-2924k) does not require that the
foreclosing party have a beneficial interest in or physical possession of the note”]; Jenkins,
at p. 513 [nonjudicial foreclosure statutes “do not require that the foreclosing party have
an actual beneficial interest in both the promissory note and deed of trust to commence
and execute a nonjudicial foreclosure sale”]; cf. Debrunner v. Deutsche Bank National
Trust Co. (2012) 204 Cal.App.4th 433, 440-442 (Debrunner) [foreclosing beneficiary-
creditor need not produce promissory note or otherwise prove it holds note to commence
nonjudicial foreclosure under a real property security agreement].) Indeed, Debrunner
answered the more specific question raised here whether the foreclosing party must have
actual possession of the promissory note and be able to produce it in order to pursue
nonjudicial foreclosure: Based on much of the same reasoning found in Gomes
(particularly the absence of any express requirement in the nonjudicial foreclosure
statutes), the Debrunner court concluded the foreclosing beneficiary-creditor need not
produce the promissory note or otherwise prove it holds the note to proceed with
nonjudicial foreclosure on a real property security. (Id. at pp. 440-442.)
       The Palomeras argue we should reject this extensive authority for several reasons:
First, they did not consent to have MERS act as the beneficiary-nominee; second, these
decisions cannot be reconciled with section 2936, which provides “[t]he assignment of a
debt secured by mortgage carries with it the security”; and, third, their challenge was not
preemptive but was instead filed after the foreclosure sale, at which stage the former
homeowner may attempt to vacate the sale or recover damages based on procedural
irregularities. (See, e.g., Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th
1052, 1062; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104-105.)
       The first contention is meritless: The record simply does not support the
Palomeras’ contention they failed to consent to MERS acting as the beneficiary-nominee.

                                             7
To the contrary, the deed of trust specifically authorized Downey Savings to sell “[t]he
Note or a partial interest in the Note” and to change the loan servicer as frequently as
desired without prior notice to the Palomeras. This broadly worded provision authorized
securitization and transfer of the obligation as directed by Downey Savings, the original
beneficiary, any of its successors-in-interest, or any of their nominees, including MERS.
(See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 267 (Fontenot)
[“[u]nder the MERS System . . . 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”].)8 The Palomeras do not explain why MERS’s administration of transactions

8
        In Fontenot, supra, 198 Cal.App.4th 256 the plaintiff homeowner gave the original
lender a promissory note secured by a deed of trust on her home. MERS was identified as
the nominee of the lender in the deed of trust. (Id. at p. 260.) Another entity served the
plaintiff with a notice of default, after which MERS assigned the deed of trust to HSBC.
(Ibid.) Wells Fargo later foreclosed on the property and sold it. (Id. at pp. 260-261.)
Seeking an order to vacate the sale, the plaintiff 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.” (Id. at p. 262.) The trial court sustained MERS’s
demurrer to the complaint without leave to amend. (Id. at p. 263.)
        In affirming, the Court of Appeal explained: “[T]he 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.
[Citations.] The extent of MERS’s authority as a nominee was defined by its agency
agreement with the lender, and whether MERS had the authority to assign the lender’s
interest in the note must be determined by reference to that agreement. [Citations.]
Accordingly, the allegation that MERS was merely a nominee is insufficient to
demonstrate that MERS lacked authority to make a valid assignment of the note on behalf
of the original lender.” (Fontenot, supra, 198 Cal.App.4th at pp. 270-271.)
       The court also rejected the argument alluded to here that MERS could not act both
as a nominee for the beneficiary and as the beneficiary: “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

                                              8
involving the securitized loan interests, as the beneficiary or as the nominee for the
beneficiary, would be inconsistent with this provision.
        The second contention is also easily resolved. The Palomeras argue securitization
of the note and subsequent transfers of the note (or digitized fractions thereof) cannot be
reconciled with section 2936. The Palomeras cite Fontenot for the proposition that “an
assignment of an interest in the security for a debt is a nullity in the absence of an
assignment of the debt itself.” (Fontenot, supra, 198 Cal.App.4th at p. 271.) Fontenot,
however, rejected this argument because the assignment of the deed of trust at issue
stated MERS had assigned its interest “‘[t]ogether with the note or notes therein
described or referred to.’” (Ibid.) Indeed, an equivalent version of this standard language
appears in each of the assignments of the deed of trust in this case and, we suspect, in
every standardized assignment used in California or elsewhere. Section 2936, therefore,
does not aid the Palomeras’ attack on the securitization and subsequent assignment of the
note.
        The Palomeras’ third contention—that the trial court improperly characterized
their lawsuit as an impermissible preemptive attack on the foreclosure of their home—is
accurate, but the court’s error does not warrant the relief they sought. The elements of a
wrongful foreclosure claim are: “(1) the trustee or mortgagee caused an illegal,
fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a
mortgage or deed of trust; (2) the party attacking the sale (usually but not always the
trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or
mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the
secured indebtedness or was excused from tendering.” (Lona v. Citibank, N.A., supra,


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.” (Fontenot, supra,
198 Cal.App.4th at p. 273.)

                                               9
202 Cal.App.4th at p. 104; accord, Chavez v. Indymac Mortgage Services, supra,
219 Cal.App.4th at p. 1062.) “A nonjudicial foreclosure sale is accompanied by a
common law presumption that it ‘was conducted regularly and fairly.’ [Citations.] This
presumption may only be rebutted by substantial evidence of prejudicial procedural
irregularity. [Citation.] . . . [Citations.] 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.” (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238,
1258; see also Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86, fn. 4 [“[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’”].) Citing Melendrez, the Fontenot court
concurred, “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.” (Fontenot, supra, 198 Cal.App.4th at p. 272; accord, Debrunner,
supra, 204 Cal.App.4th at p. 443.) “Prejudice is not presumed from ‘mere irregularities’
in the process.” (Fontenot, at p. 272.)9
       The Palomeras cannot allege such prejudice here. To paraphrase the court in
Jenkins, supra, 216 Cal.App.4th 497, “Even if any subsequent transfers of the promissory
note were invalid, [the Palomeras were] not the victim[s] of such invalid transfers
because [their] obligations under the note remained unchanged. Instead, the true victim
may be an entity (or individual) who believes it has a present beneficial interest in the
promissory note and may suffer the unauthorized loss of its interest in the note. It is also
possible to imagine one or many invalid transfers of the promissory note may cause a
string of civil lawsuits between transferors and transferees. [The Palomeras], however,

9
       The Palomeras’ burden to establish prejudice is distinct from the requirement a
borrower seeking to set aside a foreclosure sale based on irregularities in the notice or
procedures must tender the full amount due on the underlying debt for which the property
served as security. (See Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 112.) We
need not address the tender rule or whether the Palomeras could establish a relevant
exception to the rule.

                                              10
may not assume the theoretical claims of hypothetical transferors and transferees for the
purposes of showing a ‘controversy of concrete actuality.’ [Citation.] Consequently, we
conclude [the Palomeras’] first cause of action lacks merit for the independent reason
[they] cannot show the existence of an actual, present controversy between [themselves]
and Defendants.” (Id. at p. 515; see Herrera, supra, 205 Cal.App.4th at p. 1507
[“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.”].)
The Palomeras have failed to allege any facts demonstrating they suffered prejudice as a
result of the supposedly defective assignments in this case. Accordingly, the demurrers
were properly sustained without leave to amend.
                                     DISPOSITION
       The judgment of dismissal is affirmed. Deutsche Bank, MERS and CMC are to
recover their costs on appeal.




                                                        PERLUSS, P.J.


       We concur:



                     ZELON, J.



                     SEGAL, J.*




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

                                            11
