Filed 5/3/13 Long v. OneWest Bank CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


MICHAEL LONG et al.,

     Plaintiffs and Appellants,                                        G046402

         v.                                                            (Super. Ct. No. 30-2010-00362172)

ONEWEST BANK, FSB, et al.,                                             OPINION

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
                   Michael Long and Kellie Long, in pro. per.; Brookstone Law, Vito Torchia,
Jr., Deron Colby and Sasan Behnood for Plaintiffs and Appellants.
                   Allen Matkins Leck Gamble Mallory & Natsis, Charles D. Jarrell, Andrew
E. Miller and Joshua R. Mandell for Defendants and Respondents.
                                          *                  *                  *
              Plaintiffs and appellants Michael and Kellie Long (collectively, the Longs)
filed this action to set aside defendants and respondents‟ nonjudicial foreclosure on their
home.1 The Longs allege the foreclosure proceedings are void because the beneficiary
under their deed of trust never properly appointed the trustee that conducted the
foreclosure sale. The trial court granted Defendants summary judgment, finding the
Longs failed to establish a triable issue on the trustee‟s authority to initiate the
foreclosure proceedings. We agree and affirm the judgment in Defendants‟ favor.

                                               I

                             FACTS AND PROCEDURAL HISTORY

              In September 2005, the Longs purchased a home in Costa Mesa, California.
They borrowed $650,000 from Paul Financial, LLC, to pay a portion of the purchase
price and signed a promissory note and deed of trust as security for the loan. The deed of
trust designated Paul Financial as the lender, Foundation Conveyancing, LLC, as the
trustee, and MERS as the beneficiary and nominee for Paul Financial and its successors
and assigns.2 The deed of trust irrevocably granted and conveyed to the trustee the power

       1     Defendants and respondents are OneWest Bank, FSB (OneWest), Mortgage
Electronic Registration Systems, Inc. (MERS), Deutsche Bank National Trust Company
(Deutsche Bank), Roger Stotts, and Vicki Brizendine. We shall collectively refer to all
defendants and respondents as Defendants.
       2       “„MERS is a private corporation that administers the MERS System, a
national electronic registry that tracks the transfer of ownership interests and servicing
rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of
record for participating members through assignment of the members‟ interests to MERS.
MERS is listed as the grantee in the official records maintained at county register of
deeds offices. The lenders retain the promissory notes, as well as the servicing rights to
the mortgages. The lenders can then sell these interests to investors without having to
record the transaction in the public record. MERS is compensated for its services
through fees charged to participating MERS members.‟ [Citation.] „A side effect of the
MERS system is that a transfer of an interest in a mortgage loan between two MERS
members is unknown to those outside the MERS system.‟ [Citation.]” (Gomes v.
Countrywide Homes Loans, Inc. (2011) 192 Cal.App.4th 1149, 1151 (Gomes).)

                                               2
to sell the Longs‟ property at a nonjudicial foreclosure sale if they defaulted on the loan.
IndyMac Bank serviced the Longs‟ loan.3
              In August 2006, Deutsche Bank received the Longs‟ original promissory
note as the trustee and custodian under the Harborview Mortgage Loan Trust, Mortgage
Loan Pass-Through Certificates, Series 2006-8, a mortgage-backed investment trust.
Deutsche Bank held the original promissory note throughout all times relevant to this
action. After Deutsche Bank obtained the note, IndyMac continued to service the loan
and MERS remained the beneficiary and the lender‟s nominee under the deed of trust.
              When the Longs purchased the property in September 2005, the county tax
assessor erroneously recorded the purchase price and assessed the property at a value
significantly higher than it was worth. As a result, the Longs received a property tax bill
they contend was approximately double what it should have been based on the actual
purchase price. The Longs appealed the tax assessor‟s bill and did not pay any of their
property taxes. Starting in August 2007, IndyMac repeatedly notified the Longs their
loan was in default because they had not paid their taxes. By mid-2008, the Longs still
had not paid any property taxes or resolved their appeal with the tax assessor. To protect
its security interest in the property, IndyMac exercised the right under the note and deed
of trust to pay the Longs‟ property taxes and add the amount paid to the loan balance.
IndyMac then amortized the taxes over one year and increased the Longs‟ monthly
mortgage payment from approximately $2,800 to approximately $9,500 to recoup the
taxes and establish an escrow account for future taxes. Beginning in June 2008, the
Longs stopped making their mortgage payments.4

       3     During the time IndyMac Bank serviced the Longs‟ loan, the Federal
Deposit Insurance Corporation (FDIC) seized control of IndyMac Bank and changed its
name to IndyMac Federal Bank, FSB. We will refer to both IndyMac Bank and IndyMac
Federal Bank, FSB as IndyMac.
       4    After IndyMac added the amount it paid for the taxes to the Longs‟
monthly mortgage payment, the Longs contend they sought a loan modification. They

                                              3
              After an assignment of the Longs‟ note and deed of trust and a substitution
of trustee, Quality Loan Service Corporation (Quality Loan) foreclosed on the property
on IndyMac‟s behalf. Because the Longs base their principal challenge to the foreclosure
sale on the timing of the assignment, substitution of trustee, and the various steps in the
nonjudicial foreclosure process, we provide the following chronology relating to the
execution, notarization, and recording of the critical documents:


November 6, 2008          The “Effective Date” identified in the “Assignment of Deed of
                          Trust” MERS executed as the lender‟s nominee to assign to
                          IndyMac “all beneficial interest under [the Longs‟ deed of
                          trust] together with the Promissory Note secured by said Deed
                          of Trust and also all rights accrued or to accrue under said
                          Deed of Trust.” As explained below, this document was not


allege an IndyMac representative told them they stood a better chance of obtaining a
modification if their loan was delinquent. The Longs, however, do not allege this
statement caused or induced them to default on their loan nor do they claim this conduct
gave rise to a cause of action against Defendants. Accordingly, we do not address this
contention.

                We note that on July 11, 2012, the Governor approved legislation known as
the “California Homeowner Bill of Rights” (Sen. Bill No. 900 (2011-2012 Reg. Sess.);
Assem. Bill No. 278 (2011-2012 Reg. Sess.). (Governor Brown‟s signing message on
Assem. Bill No. 278 (2011-2012 Reg. Sess.) July 11, 2012.) The California Homeowner
Bill of Rights prohibits, among other things, “dual track” foreclosures, which occur when
a servicer continues foreclosure proceedings while reviewing a homeowner‟s application
for a loan modification; requires a single point of contact for homeowners who are
negotiating a loan modification; and expands notice requirements to the borrower before
the lender may take action on a loan modification or pursue foreclosure. (Governor
Brown‟s signing message; see Stats. 2012, ch. 86; Stats. 2012, ch. 87.) Because the
California Homeowner Bill of Rights became effective on January 1, 2013 (Cal. Const.,
art. IV, § 8, subd. (c)(1) [effective date of new statutes is Jan. 1, following 90 days after
enactment]), after Defendants foreclosed on the Longs‟ property, we do not address its
application to this case.


                                              4
                         notarized until January 2009 and does not state when it was
                         signed.
December 4, 2008         IndyMac executes a “Substitution of Trustee” designating
                         Quality Loan for Foundation Conveyancing as the trustee on
                         the Longs‟ deed of trust.
December 4, 2008         Quality Loan executes a “Notice of Default and Election to
                         Sell under Deed of Trust” (Notice of Default) to commence the
                         nonjudicial foreclosure process on the Longs‟ property.
December 10, 2008        Quality Loan records the Notice of Default.
January 20, 2009         A notary notarizes MERS‟s signature on the Assignment of
                         Deed of Trust, but the Assignment does not identify the date on
                         which MERS actually signed it. As explained above, the
                         Assignment states its effective date was November 6, 2008.
January 22, 2009         IndyMac records the Substitution of Trustee.
January 30, 2009         IndyMac records the Assignment of Deed of Trust.
March 12, 2009           Quality Loan records a “Notice of Trustee‟s Sale” for the
                         Longs‟ property.
March 19, 2009           OneWest purchases the loan servicing rights for the Longs‟
                         loan from the FDIC, acting as receiver for IndyMac.
July 22, 2009            Quality Loan sells the Longs‟ property to OneWest at a
                         nonjudicial foreclosure sale.5
July 29, 2009            OneWest records a “Trustee‟s Deed Upon Sale” transferring
                         the Longs‟ property to OneWest.

      5        The Longs contend Quality Loan sold their home without giving them
notice of the public auction date because the original date was continued multiple times.
Because the Longs‟ complaint did not state a cause of action based on that contention, we
do not address it.


                                            5
              Shortly after obtaining title to the property, OneWest filed an unlawful
detainer action to evict the Longs and the trial court entered a judgment awarding
OneWest possession in July 2010. While the unlawful detainer action was pending, the
Longs filed this action to set aside the foreclosure sale and recover damages from
Defendants and others for their role in the foreclosure. The Longs alleged Quality Loan
lacked authority to act as trustee and therefore the entire foreclosure was void. Following
a series of successful demurrers, the only claims remaining against Defendants were
claims for wrongful foreclosure, unfair competition under Business and Professions Code
section 17200, “tort in se,” and quiet title.
              Defendants moved for summary judgment, or alternatively summary
adjudication, on these remaining causes of action. Defendants asserted they followed the
required procedures for conducting a nonjudicial foreclosure on the property and any
technical or procedural defects did not prejudice the Longs. The Longs opposed the
motion, arguing Quality Loan lacked authority to foreclose on IndyMac‟s behalf because
(1) IndyMac purported to substitute Quality Loan as trustee before MERS assigned any
beneficial interest in the property to IndyMac; (2) the assignment from MERS to
IndyMac was void because the signature on MERS‟s behalf was forged; and (3) IndyMac
did not hold the Longs‟ promissory note when Quality Loan foreclosed on its behalf.
              The trial court granted the motion and entered judgment in Defendants‟
favor. The Longs timely appealed and petitioned this court for a writ of supersedeas to
prevent OneWest from executing on the unlawful detainer judgment. Pending further
order of this court, we stayed enforcement of the unlawful detainer judgment on the
condition the Longs continued to pay OneWest $2,500 per month.




                                                6
                                              II

                                        DISCUSSION

A.     Summary Judgment Standard of Review
              Summary judgment is properly granted if there is no triable issue on any
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c); Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847
(Eriksson).) A defendant moving for summary judgment bears the initial burden of
presenting facts to negate an essential element of the plaintiff‟s cause of action or to show
there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2);
Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168-169 (Teselle).) Although the
plaintiff would have the burden of proof at trial by a preponderance of the evidence, the
defendant seeking summary judgment must present evidence that would preclude a
reasonable trier of fact from finding it was more likely the material fact was true.
(Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304.)
              If the defendant meets that burden, the burden shifts to the plaintiff to
present evidence establishing triable issues exist on one or more material facts.
(Code Civ. Proc., § 437c, subd. (p)(2); Teselle, supra, 173 Cal.App.4th at pp. 168-169.)
A triable issue of material fact exists “„if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.‟ [Citation.] Thus, a party
„cannot avoid summary judgment by asserting facts based on mere speculation and
conjecture, but instead must produce admissible evidence raising a triable issue of fact.
[Citation.]‟ [Citation.]” (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011)
199 Cal.App.4th 1132, 1144-1145 (Dollinger).)
              We review de novo a trial court‟s ruling on a summary judgment motion.
(Eriksson, supra, 191 Cal.App.4th at p. 848.) “„[I]n practical effect, we assume the role


                                              7
of a trial court and apply the same rules and standards that govern a trial court‟s
determination of a motion for summary judgment.‟ [Citation.] „Regardless of how the
trial court reached its decision, it falls to us to examine the record de novo and
independently determine whether that decision is correct.‟ [Citation.] . . . The sole
question properly before us on review of the summary judgment is whether the judge
reached the right result . . . whatever path he might have taken to get there, and we decide
that question independently of the trial court. [Citation.]” (Carnes v. Superior Court
(2005) 126 Cal.App.4th 688, 694, original italics, fn. omitted; Dollinger, supra,
199 Cal.App.4th at p. 1144 [“the reviewing court „. . . reviews the trial court‟s ruling, not
its rationale‟”].)

B.     The Trial Court Properly Granted Summary Judgment on the Longs’ Wrongful
       Foreclosure Claim

       1.      Governing Nonjudicial Foreclosure Principles
               “Civil Code 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. . . . [¶] The statutory scheme can be briefly summarized as
follows. Upon default by the trustor, 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 property must be sold at public auction to the
highest bidder. [Citations.] [¶] During the foreclosure process, the debtor/trustor is
given several opportunities to cure the default and avoid the loss of the property.”
(Moeller v. Lien (1994) 25 Cal.App.4th 822, 830.)



                                              8
              “„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.‟ [Citation.]” (Debrunner v. Deutsche Bank
National Trust Co. (2012) 204 Cal.App.4th 433, 440 (Debrunner).)
              “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.] . . . 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. [Citation.]”
(Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258, italics added
(Melendrez); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
272 (Fontenot) [“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” (italics added)]; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86,
fn. 4 (Knapp) [“A nonjudicial foreclosure sale is presumed to have been conducted
regularly and fairly; one attacking the sale must overcome this common law presumption
„by pleading and proving an improper procedure and the resulting prejudice‟” (italics
added)].) “Prejudice is not presumed from „mere irregularities‟ in the process.
[Citation.]” (Fontenot, at p. 272.)

       2.     The Longs Failed to Establish a Triable Issue of Fact Regarding Quality
              Loan‟s Authority to Initiate and Conduct the Foreclosure
              On their summary judgment motion, Defendants met their initial burden to
show the Longs‟ wrongful foreclosure claim lacked merit. Defendants showed they
properly sold the Longs‟ property through a nonjudicial foreclosure sale by presenting
evidence that (1) the Longs borrowed $650,000 to purchase the property and executed a


                                               9
deed of trust as security for the loan; (2) the deed of trust granted the trustee power to sell
the property through a nonjudicial foreclosure if the Longs defaulted on the loan; (3) the
Longs defaulted on the loan; (4) MERS, as the beneficiary and nominee of the original
lender and its successors and assigns, assigned all beneficial interest in the Longs‟ deed
of trust and promissory note to IndyMac; (5) IndyMac substituted Quality Loan as the
trustee under the Longs‟ deed of trust; (6) Quality Loan recorded the Notice of Default;
(7) Quality Loan recorded the Notice of Trustee‟s Sale; (8) the Longs did not cure their
default; and (9) Quality Loan sold the property at a public auction. This evidence shifted
the burden to the Longs to establish a triable issue on their wrongful foreclosure claim.
              The Longs contend they established a triable issue on whether the entire
foreclosure process was void because Quality Loan lacked authority to initiate and
conduct the nonjudicial foreclosure. The Longs offer three theories on why Quality Loan
lacked authority, but they failed to establish a triable issue on any of their theories.

              a.      The Timing of the Substitution of Trustee and Assignment of Deed
                      of Trust Did Not Deprive Quality Loan of Authority
              The Longs first argue Quality Loan lacked authority to initiate and conduct
the nonjudicial foreclosure because IndyMac had no beneficial interest in the Longs‟
deed of trust and promissory note when it purported to substitute Quality Loan as the
trustee. The Longs emphasize IndyMac executed the Substitution of Trustee — and
Quality Loan recorded the Notice of Default — over a month before MERS executed the
Assignment of Deed of Trust granting IndyMac a beneficial interest in the deed of trust
and note. Because IndyMac had no beneficial interest in the deed of trust and note when
it executed the Substitution of Trustee, the Longs argue Quality Loan lacked authority to
act as trustee when it recorded the Notice of Default and the foreclosure proceedings
therefore are void. Neither the law nor the facts support this argument




                                              10
              First, although MERS apparently did not execute the Assignment of Deed
of Trust until January 2009,6 the Assignment has an effective date of November 6, 2008,
which was approximately one month before IndyMac substituted Quality Loan as trustee
and Quality Loan recorded the Notice of Default. “[A] party of a contract may . . . fix
retroactive dates of execution for a contract.” (Du Frene v. Kaiser Steel Corp. (1964)
231 Cal.App.2d 452, 458; see also National Parks & Conservation Assn. v. County of
Riverside (1996) 42 Cal.App.4th 1505, 1522 [parties are “within their rights” to make
their agreement effective on a date other than the date they executed it].) Accordingly,
the face of the Assignment of Deed of Trust demonstrates IndyMac had a beneficial
interest in the deed of trust and note when it substituted Quality Loan as trustee.
              Second, Quality Loan‟s substitution as trustee after it recorded the Notice
of Default would not render the Notice invalid. Civil Code section 2924,
subdivision (a)(1), authorizes the “trustee, mortgagee, or beneficiary, or any of their
authorized agents” to record a notice of default. (Debrunner, supra, 204 Cal.App.4th at
p. 440, italics added.) The Notice of Default identified Quality Loan “as agent for [the]
beneficiary” and further stated Quality Loan “is either the original trustee, the duly
appointed substitute trustee, or acting as agent for the trustee or beneficiary under [the
Longs‟ deed of trust].” Because it is presumed the nonjudicial foreclosure was properly
conducted, the Longs bore the burden to show Quality Loan lacked authority to record
the Notice of Default. (Fontenot, supra, 198 Cal.App.4th at p. 270.) The Longs made no
attempt to show Quality Loan did not act as the authorized agent of the beneficiary (that
is, MERS) when it recorded the Notice of Default. Consequently, even if Quality Loan
substituted as trustee after it recorded the Notice of Default, the Longs failed to show the
Notice was defective and the foreclosure proceedings void.

       6      A notary notarized MERS‟s signature on the Assignment on January 20,
2009, but the Assignment nowhere states the date on which MERS actually signed it and
no other evidence clearly identifies when it was signed.


                                             11
              Third, assuming the timing of the Assignment of Trust Deed and
Substitution of Trustee rendered the Notice of Default defective, the Longs failed to show
that defect prejudiced their interest in the property. As explained above, a borrower‟s
wrongful foreclosure claim fails unless the borrower shows the alleged defect in the
foreclosure process prejudiced his or her interests. (Debrunner, supra, 204 Cal.App.4th
at p. 443; Fontenot, supra, 198 Cal.App.4th at p. 272; Melendrez, supra, 127 Cal.App.4th
at p. 1258; Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.)
              For example, the borrower in Fontenot argued the nonjudicial foreclosure
was void because the original lender‟s nominee purportedly lacked authority to assign the
underlying promissory note to the entity that conducted the foreclosure. The Fontenot
court rejected this challenge because the borrower failed to show the unauthorized
assignment prejudiced her interests: “As to plaintiff, an assignment merely substituted
one creditor for another, without changing her obligations under the note. Plaintiff
effectively concedes she was in default, and she does not allege that the transfer to [the
foreclosing entity] interfered in any manner with her payment of the note [citation], nor
that the original lender would have refrained from foreclosure under the circumstances
presented. If [the original lender‟s agent] indeed lacked authority to make the
assignment, the true victim was not plaintiff but the original lender, which would have
suffered the unauthorized loss of a $1 million promissory note.” (Fontenot, supra,
198 Cal.App.4th at p. 272.)
              Similarly, the borrower in Debrunner challenged the nonjudicial
foreclosure by arguing the trustee lacked authority to conduct the foreclosure because the
trustee recorded the notice of default several months before the substitution of trustee was
recorded. (Debrunner, supra, 204 Cal.App.4th at pp. 436-437, 443.) Despite this
purported lack of authority, the Debrunner court rejected the borrower‟s wrongful
foreclosure claim because the borrower failed to show how the lack of authority



                                             12
prejudiced him by impairing his ability to either prevent or contest the foreclosure. (Id. at
pp. 443-444.)
                Here, the Longs likewise failed to present any evidence showing Quality
Loan‟s purported lack of authority prejudiced them. They do not dispute they defaulted
on their loan, nor do they contend Quality Loan‟s purported lack of authority either
caused their default or prevented them from curing their default. Furthermore, it is
undisputed Quality Loan had authority to conduct the nonjudicial foreclosure by the time
it pursued the foreclosure process after recording the Notice of Default. The Longs
concede MERS executed, notarized, and recorded the Assignment of Deed of Trust by
the end of January 2009, which was well before Quality Loan recorded the Notice of
Trustee‟s Sale in March 2009 and sold the property at public auction in July 2009.
Accordingly, any question regarding Quality Loan‟s authority to record the Notice of
Default was a mere irregularity in the proceedings and the Longs failed to show it caused
them any prejudice.7
                The Longs contend Fontenot and Debrunner do not apply here because
those cases merely involved the delayed recording of documents that were nonetheless
executed in the proper sequence, not documents that were improperly “backdated” to
cure a lack of authority to perform steps vital to the foreclosure proceedings. The Longs
misconstrue Fontenot‟s and Debrunner‟s significance. Although those cases did not
involve improperly “backdated” documents, they unmistakably established a borrower‟s
burden to show how the alleged defect in the foreclosure process prejudiced the


       7      The Longs‟ burden to establish prejudice is distinct from the requirement
that 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. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112.)
Accordingly, the Longs‟ contention that exceptions to the tender rule apply in this case
has no impact on their failure to establish prejudice and therefore we do not address the
tender rule.


                                             13
borrower‟s interests, and the Longs failed to establish the backdating of the Assignment
of Deed of Trust prejudiced them.
              Moreover, the Longs failed to show that designating an effective date in an
assignment of trust deed that is earlier than the execution date is improper. The Longs
rely on three United States District Court decisions for the proposition that the recipient
of a backdated assignment of trust deed may not have authority to record a notice of
default, and that any foreclosure proceeding based on a notice of default recorded by the
recipient of a backdated assignment is void ab initio. (See Tamburri v. Suntrust
Mortgage, Inc. (N.D.Cal. Dec. 15, 2011, C-11-2899 EMC) 2011 U.S.Dist. Lexis 144442;
Castillo v. Skoba (S.D.Cal., Oct. 8, 2010, No. 10cv1838 BTM) 2010 U.S.Dist. Lexis
108432; Ohlendorf v. American Home Mortgage Servicing (E.D.Cal. 2010) 279 F.R.D.
575.) We are not bound by these foreign decisions (Gomes, supra, 192 Cal.App.4th at
p. 1155) and therefore decline to follow them because they fail to properly apply the
foregoing California law. None of these federal cases offers any analysis or authority
(except each other) for the conclusion “recording assignments with backdated effective
dates may be improper.” (Ohlendorf, at p. 583, italics added; see also Tamburri, at
p. *12; Castillo, at p. *2.) Moreover, two of the three cases fail to acknowledge the
borrower‟s burden to establish prejudice to set aside a nonjudicial foreclosure sale
(Castillo, at p. *2; Ohlendorf, at p. 583), and the third case acknowledges the prejudice
requirement, but concludes it does not apply because the foreclosure sale had not yet
occurred (Tamburri, at p. *14).8




       8      The Longs also cite Ung v. Koehler (2005) 135 Cal.App.4th 186, for the
statement “„“a trustee‟s sale based on statutorily deficient notice of default is invalid.”‟
[Citations.]” (Id. at pp. 202-203.) That quote, however, is taken out of context because
Ung did not involve a borrower‟s wrongful foreclosure claim and did not address the
prejudice requirement.


                                             14
              Based on Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868
(Dimock), the Longs also argue they had no obligation to establish prejudice because
Quality Loan‟s lack of authority rendered the foreclosure proceedings void ab initio.
Dimock, however, does not apply to the facts of this case and does not excuse the Longs
from their obligation to establish prejudice.
              In Dimock, the loan servicer recorded a notice of default in the original
trustee‟s name, but a few months later recorded a substitution of trustee and a second
notice of default in the new trustee‟s name. After realizing it already had recorded a
notice of default, the servicer resumed the foreclosure proceedings in the original
trustee‟s name and executed a deed upon sale in the original trustee‟s name without
rescinding the substitution of trustee or reappointing the original trustee. (Dimock, supra,
81 Cal.App.4th at pp. 871-873.) The Dimock court held the trustee‟s deed upon sale was
void on its face because the substitution of trustee transferred all of the original trustee‟s
interests in the property to the second trustee and the original trustee therefore had no
interest it could convey to the purchaser through the deed. (Id. at pp. 876-878.)
              Contrary to the Longs‟ contention, Dimock did not find the entire
foreclosure proceeding void ab initio. Rather, it simply voided a deed upon a trustee‟s
sale because the trustee that executed the deed did not have an interest in the property.
(Dimock, supra, 81 Cal.App.4th at p. 877 [“Given that title to property is held by the
trustee under a deed of trust, it is difficult to accept the notion that one who no longer has
title could nonetheless convey effective title”].) Moreover, Dimock did not address the
prejudice requirement and its facts are readily distinguishable from our case. Here,
Quality Loan was the appointed trustee when it executed and recorded both the Notice of
Trustee‟s Sale and the Deed Upon Trustee‟s Sale. Dimock did not address procedural
irregularities during intermediate steps in the nonjudicial foreclosure process and
therefore does not apply.



                                                15
              Finally, the Longs argued at oral argument that they suffered prejudice
when IndyMac paid the taxes on the property and then tripled their monthly mortgage
payment to recoup the taxes and other charges IndyMac paid on the Longs‟ behalf.
According to the Longs, the property tax issue was not their fault because the county
erroneously billed them twice as much as it should have and IndyMac should not have
paid the taxes while the Longs were working with the county to correct this purported
error. The Longs, however, failed to explain how this property tax issue was an
irregularity in the nonjudicial foreclosure proceedings or had an impact on Quality
Loan‟s authority to conduct those proceedings.
              Debrunner and Fontenot make clear that the Longs‟ wrongful foreclosure
claim required an irregularity in the nonjudicial foreclosure proceedings and prejudice
resulting from that irregularity. (Debrunner, supra, 204 Cal.App.4th at p. 443; Fontenot,
supra, 198 Cal.App.4th at p. 272.) The county‟s purported error in assessing the property
taxes and IndyMac‟s payment of the delinquent taxes was not an irregularity in the
nonjudicial foreclosure proceedings. Indeed, the property tax issue had nothing to do
with the nonjudicial foreclosure sale or Quality Loan‟s authority to conduct that sale, and
therefore it provided no basis for setting aside the sale.
              Moreover, the Longs conceded they paid zero property taxes during the
nearly four years they owned the property and the deed of trust they signed gave
IndyMac the right to pay the taxes to protect its security interest in the Longs‟ property.
IndyMac repeatedly warned the Longs for several months that it would pay the taxes if
they did not. The Longs‟ efforts to challenge the taxes with the county neither prevented
IndyMac from paying the taxes (and adding that amount to the Longs‟ monthly mortgage
payment) nor stopped the accrual of penalties or other charges on the proper amount of
the taxes (see 9 Witkin, Summary of Cal. Law (10th ed. 2005) Taxation, § 257, p. 390,




                                              16
citing Rev. & Tax. Code, §§ 4833.1, subd. (a), 4985.4, subd. (a)).9 IndyMac exercised a
right it indisputably had under the deed of trust to pay delinquent taxes and that payment
did not constitute an irregularity in the nonjudicial foreclosure proceedings nor did it
prejudice the Longs.

              b.       The Longs Failed to Show MERS‟s Signature on the Assignment of
                       Deed of Trust Was Forged
              The Longs also contend Quality Loan lacked authority to foreclose on their
property because the signature on MERS‟s behalf on the Assignment of Deed of Trust
was forged. According to the Longs, the forged signature rendered the Assignment void
and therefore IndyMac lacked authority to substitute Quality Loan as trustee because
IndyMac never received a beneficial interest in the Longs‟ deed of trust and promissory
note. This challenge fails because the Longs do not present sufficient evidence showing
the signature was forged.
              Stotts signed the Assignment of Deed of Trust on MERS‟s behalf and a
notary acknowledged his signature. The notary‟s acknowledgment is prima facie
evidence that Stotts signed the Assignment (Evid. Code, § 1451) and Stotts testified at
deposition that he signed the Assignment.10

       9      The Longs request that we judicially notice the “Preliminary Change of
Ownership Report” regarding their purchase of the property because it is relevant to the
erroneous tax assessment. We deny the request because (1) the report is not relevant to
the issues presented on appeal (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th
1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th
1257, 1276); and (2) the Longs did not make the request in the trial court (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3).
       10      The notary who acknowledged Stotts‟s signature on the Assignment of
Deed of Trust testified she did not maintain a notary log during the time she
acknowledged Stotts‟s signature. The Longs contend this is suspicious and supports their
position that Stotts did not sign that document, but they present no authority to show the
lack of a notary log invalidated the acknowledgment and nonetheless Stotts testified he
signed the Assignment.


                                              17
              To support their forgery theory, the Longs submitted a declaration by
Beth Chrisman, a forensic document examiner. She explained she examined
33 documents Stotts purportedly signed on MERS‟s behalf and concluded the signatures
revealed more than one person, and possibly as many as six people, signed Stotts‟s name
on the documents because there were “at least six distinct signature formations.” Two of
the documents Chrisman examined were the Assignment of Deed of Trust and a
declaration Stotts filed on MERS‟s behalf to obtain relief from the automatic stay when
the Longs filed for bankruptcy protection. Chrisman concluded “[t]wo separate
individuals authored the name of Roger Stotts on [these] two documents [and t]herefore,
one if not both are forgeries.”
              Chrisman, however, never opined Stotts‟s signature on the Assignment of
Deed of Trust is a forgery. She conceded she did not “examine[] authenticated, known
signatures of Roger Stotts” and could not determine which documents were signed “by
the „real‟ Roger Stotts” without a known signature. Accordingly, although Chrisman
opined more than one person signed Stotts‟s name on the documents she examined, she
stopped short of opining Stotts did not sign the Assignment of Deed of Trust and
conceded she lacked the necessary information to render that opinion.
              To create a triable issue of fact, a party must present evidence “„of
sufficient quality to allow the trier of fact to find the underlying fact in favor of the party
opposing the motion for summary judgment. [Citation.]‟ [Citation.] The [opposing
party] does not meet his burden of demonstrating a triable issue where his evidence
merely provides „a dwindling stream of probabilities that narrow into conjecture.‟
[Citation.]” (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th
1409, 1415.) “[C]ourts are „not bound by expert opinion that is speculative or
conjectural. [Citations.] Plaintiffs cannot manufacture a triable issue of fact through use
of an expert opinion with self-serving conclusions devoid of any basis, explanation, or
reasoning. [Citation.]‟ [Citation.]” (Ibid.; see also Sangster v. Paetkau (1998)

                                              18
68 Cal.App.4th 151, 163 [“responsive evidence that gives rise to no more than mere
speculation cannot be regarded as substantial, and is insufficient to establish a triable
issue of material fact”].)
              Without a specific opinion by Chrisman that Stotts‟s signature on the
Assignment of Deed of Trust is a forgery, the Longs‟ contention that document was
forged is speculative and fails to create a triable issue of material fact. Because
Chrisman‟s declaration failed to raise a triable issue concerning Stotts‟s signature, we
need not address the parties‟ numerous contentions concerning Chrisman‟s qualifications
to express an expert opinion or whether Defendants ratified the Assignment of Deed of
Trust even if it was a forgery.

              c.      The “Separation” of the Note and Deed of Trust Did Not Deprive
                      Quality Loan of the Authority to Foreclose
              Finally, the Longs contend IndyMac did not hold a beneficial interest in
both the deed of trust and promissory note during the foreclosure process. According to
the Longs, a nonjudicial foreclosure is invalid unless the foreclosing beneficiary holds
both the deed of trust and the underlying promissory note. The Longs assert IndyMac did
not hold both because the note was separately transferred to Deutsche Bank in
August 2006, and therefore MERS‟s assignment to IndyMac in late 2008 did not transfer
the note to IndyMac. Rather, in the Long‟s view, the note remained with Deutsche Bank
throughout the foreclosure process and IndyMac (through Quality Loan) therefore lacked
authority to foreclose under the deed of trust. The Debrunner court, however, recently
rejected this same argument.
              The Debrunner court explained that Civil Code sections 2924 to 2924k
establish a comprehensive and exhaustive statutory framework to govern nonjudicial
foreclosure sales, and therefore California courts “„have refused to read any additional
requirements into the non-judicial foreclosure statute.‟ [Citations.]” (Debrunner, supra,
204 Cal.App.4th at pp. 440-441.) Because the statutes “„do[] not require a beneficial

                                             19
interest in both the Note and the Deed of Trust to commence a non-judicial foreclosure
sale,‟” the separation of the note and deed of trust does not prevent a party from
conducting a nonjudicial foreclosure sale. (Id. at p. 441.) Indeed, the statutory scheme
authorizes the “„trustee, mortgagee, or beneficiary, or any of their authorized agents‟” to
initiate nonjudicial foreclosure proceedings regardless of whether the foreclosing party
holds a beneficial interest in the underlying promissory note. (Id. at pp. 440-441.)
Accordingly, there is no legal basis for the Longs‟ contention that the separation of the
note and deed of trust prevented Quality Loan from foreclosing on their property on
IndyMac‟s behalf.

C.       The Trial Court Properly Granted Summary Judgment on the Remaining Claims
               The three remaining claims are for unfair competition under Business and
Professions Code section 17200, tort in se, and quiet title. The unfair competition claim
alleges Defendants engaged in illegal and unfair business acts by foreclosing on the
Longs‟ property without legal authority and based on backdated, forged, and illegally
notarized documents. The tort in se claim alleges Defendants are liable to the Longs‟ in
tort for conducting a nonjudicial foreclosure that did not comply with the nonjudicial
foreclosure statutes.11 Finally, the quiet title claim alleges the nonjudicial foreclosure
was void and the trial court should therefore quiet title to the property in favor of the
Longs.




         11    “A „tort in se‟ or „tort in essence‟ is „the breach of a nonconsensual duty
owed another.‟ [Citation.] „Violation of a statutory duty to another may therefore be a
tort and violation of a statute embodying a public policy is generally actionable [as a „tort
in se‟] even though no specific civil remedy is provided in the statute itself.‟ [Citation.]
„Any injured member of the public for whose benefit the statute was enacted may bring
the action.‟ [Citation.] California courts have applied the „tort in se‟ doctrine only where
a specific civil remedy is unavailable for the violations of statutory duty. [Citations.]”
(Chaconas v. JP Morgan Chase Bank (S.D.Cal. 2010) 713 F.Supp.2d 1180, 1188-1189.)


                                              20
              The Longs contend the evidence and arguments they presented on their
wrongful foreclosure claim create triable issues of fact on each of these claims as well.
As explained above, however, we conclude the evidence and argument the Longs
presented on the wrongful foreclosure claim do not create triable issues of fact and the
Longs provide no argument or explanation on why the result should be any different on
these claims. (See, e.g., Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1074 [appellant forfeited challenge by failing to present reasoned argument and
explanation].) Accordingly, we affirm the trial court‟s decision granting summary
judgment on these causes of action.

                                            III
                                       DISPOSITION

              The judgment is affirmed and the stay of enforcement we ordered regarding
the unlawful detainer judgment is dissolved when remittitur issues from this court.
Defendants shall recover their costs on appeal.



                                                  ARONSON, J.

WE CONCUR:



O‟LEARY, P. J.



BEDSWORTH, J.




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