Filed 10/23/15 Anderson v. U.S. Bank Nat. Assn. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


ELLA M. ANDERSON et al.,                                             B260254

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. KC066740)
         v.

U.S. BANK NATIONAL ASSOCIATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T.
Oki, Judge. Affirmed.
         Ella M. Anderson and Willie Anderson, in pro. per., for Plaintiffs and Appellants.
         Keesal, Young & Logan, David D. Piper and Sean B. Cooney for Defendant and
Respondent.
                                             ——————————
       Ella M. Anderson and Willie Anderson obtained a $319,500 loan from a lender
and, to secure the loan, executed a deed of trust encumbering one of their houses. The
lender’s beneficiary assigned the deed of trust to U.S. Bank National Association (U.S.
Bank) as trustee. When the Andersons failed to make loan payments, U.S. Bank initiated
foreclosure. The Andersons filed this lawsuit to quiet title, challenging U.S. Bank’s
authority to foreclose because the assignment to U.S. Bank is allegedly invalid and
arguing they are no longer obligated to pay the loan to anyone—the original lender or
U.S. Bank. The trial court sustained U.S. Bank’s demurrer because the Andersons do not
have a legal basis to bring this lawsuit. We affirm.
                                       BACKGROUND
I.     Facts of the case
       In July 2007, the Andersons obtained a $319,500 loan from Encore Credit. To
secure the loan, they executed a deed of trust encumbering their house, naming Mortgage
Electronic Registration Systems, Inc. (MERS) as beneficiary. In March 2012, MERS (as
nominee for Encore Credit) recorded an assignment of the deed of trust to U.S. Bank as
trustee. The Andersons began missing loan payments, and U.S. Bank initiated
foreclosure.
II.    Procedural history
       In March 2014, the Andersons filed this lawsuit with two causes of action: to
quiet title and for wrongful foreclosure. In June, the trial court sustained U.S. Bank’s
demurrer but allowed the Andersons leave to amend.
       In July, the Andersons amended their complaint to assert the quiet title claim only.
The Andersons alleged that U.S. Bank has no authority to initiate foreclosure because the
assignment of the deed of trust to U.S. Bank is invalid and therefore they are not
obligated to pay the loan to anyone.
       The trial court sustained U.S. Bank’s demurrer because the Andersons have not
shown any legal basis for asserting their quiet title claim; the trial court also denied the
Andersons leave to amend their complaint.



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                                       DISCUSSION
       We review de novo the trial court’s judgment sustaining a demurrer. (Bank of
America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1203.) “‘A demurrer tests the
legal sufficiency of the factual allegations in a complaint.’” (Ibid.) On trial court rulings
such as denial of leave to amend after sustaining a demurrer, however, our standard of
review (abuse of discretion) is deferential to the trial court. (Id. at p. 1204.)
I.     The trial court correctly held that the Andersons have no legal basis for
asserting their claim.
       A.     California precedent
              1.      Financing real property with a deed of trust
       In California, financing of real property is generally accomplished through a deed
of trust. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 507
(Jenkins).) “A deed of trust . . . conveys title to real property from the trustor-debtor to a
third-party trustee to secure the payment of a debt owed to the beneficiary-creditor under
a promissory note.” (Id. at p. 508.) “[I]f the trustor-debtor fails to pay back the debt
owed under the promissory note,” the trustee must initiate foreclosure on the real
property for the benefit of the beneficiary-creditor. (Ibid.)
              2.      Defaulting debtors cannot delay foreclosure by requiring
foreclosing party to prove in court its authority to foreclose.
       California is a nonjudicial foreclosure state. Multiple California court decisions
have established that a defaulting debtor has no right to bring a lawsuit to challenge the
authority of a foreclosing party to initiate nonjudicial foreclosure proceedings. (See
Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes);
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256 (Fontenot); Herrera v.
Federal National Mortgage Association (2012) 205 Cal.App.4th 1495; Jenkins, supra,
216 Cal.App.4th 497; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013)
219 Cal.App.4th 75 (Siliga); Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th
1481; Kan v. Guild Mortgage Company (2014) 230 Cal.App.4th 736 (Kan).)



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       The seminal case, Gomes, supra, 192 Cal.App.4th 1149, explained that the state
Legislature enacted a comprehensive statutory framework to regulate such foreclosures,
intending the process to be quick, inexpensive, and efficient specifically by keeping
courts out. (Id. at p. 1154.) Lawsuits that would require the foreclosing party to prove in
court its authority to initiate a foreclosure—when it is undisputed that the debtors are in
default—are simply an attempt to interject courts into the nonjudicial scheme, which
undermines the framework established by the Legislature. (Id. at pp. 1154–1155.) Such
lawsuits would not only burden and lengthen the foreclosure process but also allow
defaulting debtors to file lawsuits solely to delay valid foreclosure. (Id. at p. 1155.)
There is no unfairness to the debtor, because the foreclosure should occur regardless; an
assignment merely substitutes one creditor for another, without changing the debtor’s
unmet obligation under the note. (Fontenot, supra, 198 Cal.App.4th at p. 272.)
       “As a result, a nonjudicial foreclosure sale is presumed to have been conducted
regularly, and the burden of proof rests with the party [challenging the sale] to rebut this
presumption.” (Fontenot, supra, 198 Cal.App.4th at p. 270.) Thus, the plaintiff has the
burden to affirmatively plead a specific factual basis for the alleged misconduct. (Ibid.)
       B.     The Andersons do not have a legal basis for this lawsuit.
       The trial court correctly held that Gomes, supra, 192 Cal.App.4th 1149, and its
progeny applies. The Andersons’ first amended complaint challenges the authority of
U.S. Bank to initiate foreclosure. This is the same argument repeatedly rejected by
courts, and we reject it again here.
       On appeal, the Andersons ask this court not to follow Gomes, 192 Cal.App.4th
1149, and instead find that there is always a private cause of action to challenge a
foreclosing party’s authority. The Andersons cite as support the California Homeowner
Bill of Rights (HBOR), the Fifth Appellate District’s decision in Glaski v. Bank of
America (2013) 218 Cal.App.4th 1079 (Glaski), and a First Circuit case, Culhane v.
Aurora Loan Services of Nebraska (1st Cir. 2013) 708 F.3d 282. We are not persuaded.
       First, HBOR became effective only on January 1, 2013. The conduct that the
Andersons allege as improper (assignment of the deed of trust to U.S. Bank) occurred in

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March 2012, before the HBOR effective date. While they allege in their brief that a
foreclosure occurred in 2014, after the HBOR effective date, their first amended
complaint contains no such factual allegation. Further, the Andersons failed to cite which
statutory provision in HBOR provides the cause of action allegedly applicable here.
       Second, Glaski, supra, 218 Cal.App.4th 1079, is an outlier decision that our
district is not bound to follow.1 Indeed, no other California court has followed the
reasoning in Glaski. For example, other divisions in our district have instead followed
the reasoning in Gomes, supra, 192 Cal.App.4th 1149, which issued before Glaski. (See
Siliga, supra, 219 Cal.App.4th 1481; Kan, supra, 230 Cal.App.4th 736.) Not only do we
give substantial deference to decisions within our district, but we agree that their
reasoning is correct, as discussed above.
       Third, the First Circuit case is not persuasive here. Not only are federal appellate
opinions not binding authority, that case does not apply to the facts here. The First
Circuit did not consider California’s unique nonjudicial statutory framework, the main
reason for why judicial challenge to a foreclosing party’s authority is not appropriate.
       The Andersons also argue that if Gomes, supra, 192 Cal.App.4th 1149, applies,
they have stated a specific factual basis for why U.S. Bank does not have authority to
foreclose here. The Andersons’ allegations, however, are vague, conclusory, and not
supported by applicable legal authority—essentially a hodge podge of various well-
known arguments already unsuccessfully asserted by other defaulting debtors hoping to
delay valid foreclosure. The only argument that they actually develop to an extent is that
allegedly U.S. Bank was only assigned the deed of trust and not the note. But, again, that
ground has been rejected by California courts, because a foreclosing party need not hold
the underlying promissory note to initiate foreclosure. (See Debrunner v. Deutsche Bank

       1 The California Supreme Court has granted review in several cases discussing
how no California court has followed Glaski, supra, 218 Cal.App.4th 1079, but it has not
yet issued a decision. (See Yvanova v. New Century Mortgage Corporation (2014) 331
P.3d 1275; Keshtgar v. U.S. Bank (2014) 334 P.3d 686; Mendoza v. JPMorgan Chase
Bank (2014) 337 P.3d 493.)


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National Trust Co. (2012) 204 Cal.App.4th 433, 440–441; Siliga, supra, 219 Cal.App.4th
at p. 84, fn. 5; Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505,
511.)
II.     The Andersons have failed to show the trial court abused its discretion in
denying leave to amend.
        When “‘the plaintiff demonstrates a reasonable possibility that the defect can be
cured by amendment,’” we will reverse a trial court’s denial of leave to amend as an
abuse of its discretion. (Bank of America, N.A. v. Mitchell, supra, 204 Cal.App.4th at p.
1204.) Here, again, the Andersons provide no substantive argument as to how they could
cure the defect in their complaint identified by the trial court; instead, they argue that the
trial court should not have sustained demurrer in the first place. As explained above, we
agree with the trial court’s sustaining U.S. Bank’s demurrer and therefore find no abuse
of discretion in the trial court’s decision not to grant leave to amend.
                                       DISPOSITION
        The judgment is affirmed. Costs are awarded to U.S. Bank National Association.
        NOT TO BE PUBLISHED.


                                                   JOHNSON, J.


We concur:


               CHANEY, Acting 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.


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