Filed 5/21/15 Daire v. Selene Finance CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


EDMOUND DAIRE,                                                       B255107

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC458702)
         v.

SELENE FINANCE, L.P., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mel Red Recana, Judge. Affirmed.
         Edmound Daire, in pro. per., for Plaintiff and Appellant.
         Rosenthal Withem Zeff & Nahmi, Michael D. Zeff and Michael L. Withem;
Carlson Law Group, Mark C. Carlson, Stuart T. Miller for Defendants and Respondents.
       Plaintiff Edmound Daire appeals the dismissal of his complaint against defendants
Selene Finance, L.P. (“Selene”), Gadish Properties, Inc., and others following
defendants’ successful demurrers to plaintiff’s third amended complaint. Finding no
error, we affirm the judgment of dismissal.


                   FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff claimed a five percent ownership interest in the real property located at
5227 South Wilton Place in Los Angeles (the “property”). As reflected on a Notice of
Grant Deed filed in the trial court, plaintiff’s interest in the property had been deeded to
him as a gift by Desiree Gill on or about October 11, 2010.1
       In May 2007, Gill executed a deed of trust in favor of EquiFirst Corporation as
lender, Commerce Title Company as Trustee, and MERS as Beneficiary acting solely as
a nominee for the lender and its successors and assigns. In October 2008, defendant
Selene recorded a notice of default in the Los Angeles County Recorder’s Office. In
February 2011, Selene recorded an assignment of deed of trust which had been signed by
its vice president, Daniel Smith, ten months earlier, in April 2010. As plaintiff points out,
the assignment of deed of trust was not signed, endorsed, or ratified by either the lender
or the beneficiary under the deed of trust. From this fact plaintiff alleged: “Clearly, this
document is a complete and total fake, fraud, phony forged document within any
meaning of any law that describes fraud or forgery. One need only review the
document and it clearly shows that Defendant Selene without authorization from the
original lender (EquiFirst) and/or MERS, attempts to convey the Note and the DOT
from Defendants EquiFirst and/or ‘MERS’ to [Selene].”
       Defendants demurred to the third amended complaint on multiple grounds,
including the res judicata effect of a prior lawsuit filed in federal court by Desiree Gill
which adjudicated identical claims adversely to Gill and thus, derivatively, adversely to

1
       The grant deed was neither notarized nor recorded in the official records of Los
Angeles County, and was executed two years after nonjudicial foreclosure proceedings
against the property had commenced.
                                              2
plaintiff herein. The trial court sustained the demurrers in their entirety, stating with
reference to plaintiff’s third cause of action to void or cancel the assignment of deed of
trust, that “there are no facts which would support any claim that this foreclosure
proceeding was invalid. . . . The allegations are conclusory. The loan was in default and
the loan servicer and beneficiary were entitled to commence foreclosure proceedings on
the property pursuant to the deed of trust.” The court entered a judgment of dismissal.
       Plaintiff timely appealed the judgment.


                                       DISCUSSION
       “A demurrer tests the legal sufficiency of the factual allegations in a complaint.
We independently review the sustaining of a demurrer and determine de novo whether
the complaint alleges facts sufficient to state a cause of action or discloses a complete
defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the
truth of the properly pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded and matters of which judicial notice has been taken.
(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We construe the
pleading in a reasonable manner and read the allegations in context. (Ibid.) We must
affirm the judgment if the sustaining of a general demurrer was proper on any of the
grounds stated in the demurrer, regardless of the trial court's stated reasons. (Aubry v.
Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967.)” (Siliga v. Mortgage Electronic
Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 81 (Siliga).)
       Plaintiff’s appeal is addressed solely to the trial court’s order sustaining
defendants’ demurrer to his “third cause of action to void or cancel assignment of deed of
trust,”2 which states: “95. The ASSIGNMENT of the DEED OF TRUST is in fact,

2
        Plaintiff’s briefs on appeal present no argument and cite no authority with respect
to his claims against Gadish Properties, Inc. We therefore deem abandoned the appeal of
the judgment in favor of this defendant. (See e.g., Boblitt v. Boblitt (2010) 190
Cal.App.4th 603, 609 [“Contentions supported neither by argument nor by citation of
authority are deemed to be without foundation, and to have been abandoned.”];
Bonadiman-McCain, Inc. v. Snow (1960) 183 Cal.App.2d 58, 65 [“Inasmuch as
                                              3
invalid and void, and of no force and effect, for the reasons set forth above and below
including, inter alia, the fact that Defendant Selene did not have standing or the legal
authority to assign the deed of trust to itself, an assignment [] which purportedly secured
the Note, and which served as the basis for a claim to have the right to conduct a non-
judicial foreclosure. Thus, the assignment of the deed of trust was at all times void. [¶]
96. Plaintiff is therefore entitled to an Order of The Court that the Assignment of the
Deed of Trust is void ab initio and canceling such Assignment.”
       The elements of a claim for wrongful foreclosure 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. (2011) 202 Cal.App.4th 89, 104; see also Fontenot v. Wells
Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 [discussing the general requirement
that irregularities in the foreclosure process be prejudicial to the plaintiff's interest];
Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507
[discussing prejudice requirement].)
       The factual underpinnings of plaintiff’s wrongful foreclosure complaint were that
the assignment of deed of trust was not executed by the proper party, so that defendants
had no authority to initiate and complete the nonjudicial foreclosure. We agree with the
trial court that the allegations of the complaint do not state a cause of action.
       The exhaustive nature of California’s nonjudicial foreclosure scheme prohibits the
introduction of additional requirements challenging the authority of the lender’s nominee
to initiate nonjudicial foreclosure. (Gomes v. Countrywide Home Loans, Inc. (2011) 192


arguments in the briefs appear limited to that part of the judgment dealing with the final
tract (16686), the appeal from other parts may be deemed abandoned.”].) Consequently,
we do not consider the res judicata effect of the final judgment entered against the
property owner, Desiree Gill.
                                                4
Cal.App.4th 1149, 1154.) Consequently, California cases hold that in post-foreclosure
actions, a borrower lacks standing to challenge an assignment of deed of trust absent a
showing of prejudice. (Siliga, supra, 219 Cal.App.4th at pp. 84-85; Herrera v. Federal
National Mortgage Assn., supra, 205 Cal.App.4th at p. 1507; Fontenot v. Wells Fargo
Bank, N.A., supra, 198 Cal.App.4th at p. 271.) As the Siliga court stated: “[T]he Siligas
fail to allege any facts showing that they suffered prejudice as a result of any lack of
authority of the parties participating in the foreclosure process. The Siligas do not
dispute that they are in default under the note. The assignment of the deed of trust and
the note did not change the Siligas' obligations under the note, and there is no reason to
believe that Accredited as the original lender would have refrained from foreclosure in
these circumstances. Absent any prejudice, the Siligas have no standing to complain
about any alleged lack of authority or defective assignment.” (Siliga, supra, at p. 85.)
       Here, the third amended complaint includes no allegation that the purportedly
improper assignment of deed of trust caused plaintiff cognizable harm, nor does he
suggest that he could amend the complaint to remedy this defect. As was true of the
plaintiffs in Siliga, supra, 219 Cal.App.4th at p. 85, plaintiff does not dispute that the
note was in default; the assignment of deed of trust did not change the borrower’s
obligations under the note; and in the circumstances of this case, the lender would have
no reason not to proceed with foreclosure. Thus, plaintiff has no standing to challenge
the validity of the assignment of deed of trust.




                                              5
                                     DISPOSITION
      The judgment is affirmed.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           GOODMAN, J.
I concur:



      TURNER, P.J.




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


       I concur.
       Based on the existing authorities, I concur. I continue to wonder how if the deed
of trust is not properly assigned, the purported assignee can initiate valid foreclosure
proceedings.




                                    MOSK, J.
