Filed 4/29/16 Mejia v. Bank of America CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



MARIA J. MEJIA,                                                          B257879

         Plaintiff and Appellant,                                        (Los Angeles County
                                                                         Super. Ct. No. BC503092)
         v.

BANK OF AMERICA, N.A., et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven J. Kleifield, Judge. Affirmed in part, reversed in part, and remanded with
directions.
         Maria J. Mejia, in pro. per., for Plaintiff and Appellant.
         Reed Smith, Michael Gerst and Kasey J. Curtis for Defendants and Respondents.




                                        _________________________
       Plaintiff and appellant Maria Mejia appeals a judgment of dismissal following the
sustaining of a demurrer without leave to amend in favor of defendants and respondents
Bank of America, N.A., for itself and as successor by merger to BAC Home Loans
Servicing, L.P., and erroneously sued as Bank of America Corporation, and Recon Trust
Company, N.A. (hereafter, Bank of America).
       After her home was sold in a foreclosure sale, Mejia sued Bank of America,
asserting claims for wrongful foreclosure, negligence, breach of contract and promissory
estoppel, among others. Mejia challenged Bank of America’s authority to foreclose on
the property and alleged it had not complied with procedural requirements for the notice
of the sale. Mejia also alleged Bank of America had misrepresented that it would modify
her loan and that no foreclosure sale was scheduled. The trial court sustained Bank of
America’s demurrer to the first amended complaint (FAC) without leave to amend, and
Mejia appealed. We reverse the judgment as to the negligence cause of action and
remand to the trial court with directions to allow Mejia the opportunity to amend this
cause of action. In all other respects, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND1
       In March 1994, Mejia “acquired” a home (Property) in Sunland, California. In
September 2003, she obtained a loan of $310,000 from HSBC Mortgage Corporation
(HSBC) secured by a deed of trust on the Property.2 HSBC subsequently assigned its
interest in the deed of trust to Bank of America.
       In April 2009, the City of Los Angeles shut off the water supply to the Property.
Mejia filed an action for quiet title against the City (the “water litigation”).


1
       Because the issue on appeal is whether the trial court properly sustained Bank of
America’s demurrer to the complaint, our summary of the relevant facts assumes the
factual allegations in the complaint are true. (See Bower v. AT&T Mobility, LLC (2011)
196 Cal.App.4th 1545, 1552.)
2
        In November 2006, Mejia obtained a loan of up to $200,000 from LaSalle Bank
Midwest, N.A., secured by a junior deed of trust on the Property. That deed of trust is
not at issue in this appeal.

                                               2
       In June 2010, Bank of America sent Mejia a notice of intent to accelerate
“demand[ing] a total due of $4,306.83.” Mejia wrote Bank of America, stating that “her
addition of the numbers did not total ‘$4,306.83’ and ask[ing] for clarification.” She did
not receive a response. On June 15, 2010, Recon Trust Company, N.A. (Recon Trust),
“acting as an agent for the Beneficiary,” recorded a notice of default on the deed of trust.
       On August 3, 2010, Mejia went to a Bank of America location and told a
representative there that “she was living without water on the property, . . . had received a
notice of default,” and was involved in litigation regarding water rights to the property.
The representative said she would “see what she could do to help” and that someone
would contact Mejia.
       On August 6, 2010, a Bank of America representative called Mejia and asked her
to submit, “among other things, [the] amended complaint in the water litigation.” Mejia
mailed and faxed the requested documents as well as her “financial information relating
to income and expenses” to Bank of America.
       On August 17, 2010, another representative, Isabel Barber, called Mejia and said
she “was going to present Mejia’s file to the management committee” and “would get
back to [her].” On August 30, 2010, Mejia wrote Barber asking for a response to the
documents she had submitted.
       On September 2, 2010, Barber told Mejia she “was waiting to see whether Mejia
would be put on forbearance or loan modification” and that she had “received approval to
put the foreclosure on hold . . . .”
       In December 2010, “Mejia was told that Bank of America . . . was still working
toward a forbearance or loan modification and there was no foreclosure sale pending.”
On December 16, 2010, Barber “confirmed no foreclosure sale date was set and assured
Mejia . . . a loan modification to [sic] be completed in three to four months.” However,
that same day, Recon Trust executed a notice of trustee’s sale announcing the Property
was scheduled to be sold on January 12, 2011. The notice was recorded four days later.
Bank of America did not post notice of the sale on the Property.


                                              3
       On December 20, 2010, Recon Trust recorded a substitution of trustee and
assignment of deed of trust substituting Recon Trust as trustee under the deed of trust and
providing that HSBC assigned its interest in the deed of trust to BAC Home Loans
Servicing, LP (BAC). The document was executed by Kevin Rudolf and notarized by
Kenny Villavicencio. The FAC alleged that Rudolf and Villavicencio had also signed
assignments relating to other properties and their “signature[s] [were] different from
assignment to assignment . . . .”
       In January 2011, Mejia learned that Bank of America “intend[ed] to sell the . . .
Property at a foreclosure sale.” On January 10, 2011, Barber told Mejia there would be a
“loan modification review.” Another Bank of America representative referred Mejia to a
customer service line that handled loan modifications, but when Mejia called that
number, she was told it was too late for her to apply for a loan modification.
       The trustee’s sale took place on March 17, 2011. The trustee’s deed upon sale
(trustee’s deed) stated that Bank of America had purchased the Property. On April 1,
2011, Mejia received a “move out agreement” from Bank of America offering her $4,000
to move out of the Property and stating that BAC, “a subsidiary of Bank of America,” had
“acquired” the Property through the foreclosure sale. Mejia moved out later that month.
       Mejia filed the present action for wrongful foreclosure in March 2013.3 Bank of
America demurred and the court sustained the demurrer with 30 days leave to amend.
Mejia then filed the FAC alleging causes of action for wrongful foreclosure in violation
of the Civil Code, “tortious conduct,” including “negligence” and “intentional infliction
of emotional distress” breach of contract, promissory estoppel, declaratory relief, and
injunctive relief. The FAC also sought to quiet title and cancel the trustee’s deed based
upon the allegations of wrongful foreclosure.
       The FAC alleged Bank of America had wrongfully foreclosed on her Property
because (1) “[n]o chain of title or chain of ownership exists demonstrating that Bank of


3
      HSBC was also named as a defendant. It demurred, and the court sustained the
demurrer without leave to amend. That order was not appealed.

                                             4
America is successor to the HSBC original loan,” (2) Bank of America failed to comply
with procedural requirements for the notice of sale, and (3) the trustee’s deed was void.
The tort cause of action for “negligence [and] intentional infliction of emotional distress”
alleged that Bank of America had breached its duty “in not following proper foreclosure
procedures,” and the alleged conduct was “extreme and outrageous.” The breach of
contract cause of action alleged that Bank of America “promised Mejia to . . . have a loan
modification in three to four months” and “breached its promise in . . . proceed[ing] with
the foreclosure sale.” The promissory estoppel cause of action alleged that Mejia
reasonably relied to her detriment on Bank of America’s promise of a loan modification.
       Bank of America demurred to each cause of action. Mejia opposed the demurrer
and moved to strike it as untimely and in excess of the mandated page limit. The court
denied the motion to strike the demurrer. The court sustained the demurrer without leave
to amend on the grounds, inter alia, (1) the FAC’s allegations were insufficient to show an
illegal sale of the property or to rebut the presumption of a proper sale, (2) the tort cause
of action did not allege facts showing Bank of America owed Mejia a duty or that it
engaged in extreme and outrageous conduct, (3) the statute of frauds barred the breach of
contract cause of action, and (4) the promissory estoppel cause of action did not allege
facts showing a “clear and unambiguous promise.” Mejia timely appealed.
                                     CONTENTIONS4
       Mejia contends the FAC adequately alleged facts showing Bank of America’s
wrongful foreclosure of the Property, Bank of America’s breach of a duty of care in the
handling of her request for a loan modification, the existence of a valid contract to




4
        Mejia’s requests for judicial notice, filed March 6, 2015 and November 2, 2015,
are denied. (Evid. Code, § 452.) One of the subject documents (Exhibit I) was attached
to the FAC and, therefore, is in the record already. The other documents were not before
the trial court and are not necessary to the resolution of this appeal.

                                              5
provide her with a loan modification, and a clear and unambiguous promise to modify her
loan.5
                                        DISCUSSION
         1.     Standard of Review
         “On appeal from a dismissal after an order sustaining a demurrer, we review the
order de novo, exercising our independent judgment about whether the complaint states a
cause of action as a matter of law. [Citations.] We give the complaint a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.] We
deem to be true all material facts properly pled. [Citation.] We must also accept as true
those facts that may be implied or inferred from those expressly alleged. [Citation.] If no
liability exists as a matter of law, we must affirm that part of the judgment sustaining the
demurrer. [Citation.]” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.)
         2.    The Causes of Actions for Quiet Title, Civil Code Violations, and
               Cancellation of the Trustee’s Deed
         Although separately alleged in the FAC, the causes of action for quiet title,
violation of Civil Code sections 2924 and 2924h, and cancellation of the trustee’s deed
are all based on the alleged wrongful foreclosure of Mejia’s property. Therefore, we
address them together.6


5
       Mejia also argues the court erred in denying (1) her motion to strike, and (2) her
request for judicial notice of certain documents and of a section of the Civil Code. With
respect to the motion to strike, the court was correct that the demurrer was timely and
within the mandated 15-page limit. (See Code Civ. Proc., § 471.5; Cal. Rules of Court,
rule 3.1113.) In addition, the court had broad discretion to consider the demurrer even if
untimely or excessively long. (See Kapitanski v. Von’s Grocery Co. (1983)
146 Cal.App.3d 29, 32.) With respect to the request for judicial notice, Mejia has not
shown that consideration of the matters as to which she requested judicial notice would
have affected the outcome of the case. (See Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 574 [“[a] judgment may not be reversed on appeal . . . unless ‘after an
examination of the entire cause, including the evidence,’ it appears the error caused a
‘miscarriage of justice.’ [Citation.]”].)
6
       A quiet title cause of action seeks to resolve competing claims to real or personal
property. (Code Civ. Proc., § 760.020, subd. (a).) Cancellation of trustee’s deed is
                                               6
       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.’ ” (Miles v. Deutsche Bank
National Trust Co. (2015) 236 Cal.App.4th 394, 408.)
       With respect to the first element, Mejia’s theory that the foreclosure sale was
wrongful is based on allegations that (1) Bank of America failed to comply with the
procedural requirements for the notice of the sale, (2) Bank of America had no authority
to foreclose, and (3) the trustee’s deed was void.
              a.     Procedural Irregularities
       Mejia contends the trustee’s sale was invalid due to the following procedural
irregularities: (1) Bank of America failed to post notice of sale on the Property; (2) the
notice of default prematurely listed Recon Trust as trustee before a substitution of this
entity as trustee had been recorded; and (3) the notice of default identified BAC as the
beneficiary before an assignment of the deed of trust to BAC had been recorded.7
       “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.]”
(Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258 (italics added).)


technically a remedy, not a cause of action. (See Plastino v. Wells Fargo Bank (N.D.
Cal. 2010) 873 F.Supp.2d 1179, 1189.)
7
       Mejia also contends that Bank of America sent her a “Notice to Accelerate” that
“demanded” payment of an excessive amount. However, Mejia did not dispute that she
defaulted on the loan or claim that the notice of default listed any incorrect amounts.
Thus, this argument does not show that Bank of America failed to comply with the
statutory procedural requirements for the notice of the sale. (See Lona v. Citibank, N.A.
(2011) 202 Cal.App.4th 89, 104.) Although Mejia claims she did “dispute[] [Bank of
America’s] default allegations,” her citations to the record do not support this.

                                              7
       With respect to Bank of America’s alleged failure to post notice of the sale, Mejia
has not shown prejudice because she allegedly “learn[ed] about the sale” in “January
2011” more than 20 days prior to the March 17, 2011 sale. (See Civ. Code, § 2924f(b)(1)
[“notice of the sale thereof shall be given by posting a written notice of sale . . . at least
20 days before the date of sale”].)
       As for the alleged premature substitution of Recon Trust, the FAC does not allege
facts supporting this argument. The FAC alleges that the notice of default listed Recon
Trust as “acting as an agent for the Beneficiary,” not that Recon Trust was acting as
trustee. (See Civ. Code, § 2924, subd. (a)(1) [notice of default may be filed by a “trustee,
mortgagee, or beneficiary, or any of their authorized agents.”].) Furthermore, “several
statutory provisions contemplate that an entity may be substituted as trustee even where
substitution is not ‘recorded’ or ‘effected’ until after the notice of default is recorded
. . . .” (Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 12.) Mejia has also not
alleged that she suffered any harm from this alleged error, i.e., that her ability to contest
or avert the foreclosure was impaired.
       Mejia also argues the notice of default was invalid because it identified BAC as
the beneficiary before an assignment of deed of trust to BAC was recorded. Civil Code
section 2924c, subdivision (b)(1), provides that a notice of default must identify the
beneficiary or mortgagee as the proper person to contact “[t]o find out the amount you
must pay, or to arrange for payment to stop the foreclosure . . . .” Here, the notice of
default, which was issued before the assignment to BAC, identified BAC as the
beneficiary or mortgagee, provided that Mejia could contact BAC at the listed address,
and included the required statutory language quoted above. However, although the FAC
alleges that no assignment of interest to BAC had yet been recorded, the FAC does not
allege when HSBC assigned its interest in the deed of trust to BAC. Therefore, there are
no allegations demonstrating that BAC was not, in fact, the beneficiary at the time the
notice of default was issued. (See Haynes v. EMC Mortgage Corp. (2012) 205
Cal.App.4th 329, 332-336 [recordation is not required for the assignment of a beneficial
interest in a deed of trust to be effective].) Nor has Mejia cited to any authority requiring

                                               8
a beneficiary to record its beneficial interest in a deed of trust before initiating nonjudicial
foreclosure proceedings. In Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th
1481, the court rejected the plaintiff’s argument that a notice of default was void when
the beneficiary issued the notice before an assignment of the deed of trust to that entity
had been recorded: “ ‘It has been established since 1908 that th[e] statutory requirement
that an assignment of the beneficial interest in a debt secured by real property must be
recorded in order for the assignee to exercise the power of sale applies only to the
mortgage and not to a deed of trust.’ ” (Id. at p. 1497 (italics added).)
         Mejia has also not shown that she suffered any prejudice as a result of the alleged
errori.e., that her ability to contest or avert the foreclosure was impaired. (See
Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433 [holding
that to state a wrongful foreclosure claim based on the failure to provide the correct
beneficiary’s name and contact information in the notice of default, the plaintiff must also
show prejudice].)
                b.     Bank of America’s Authority to Foreclose
         Mejia contends the foreclosure was wrongful because Bank of America lacked
authority to foreclose on the property. Specifically, she contends that (1) Bank of
America “failed to provide chain of title and ownership,” (2) Bank of America “failed to
prove BAC’s authorization to sign on behalf of HSBC,” and (3) Bank of America
“fail[ed] to prove the sale was conducted by the lawful trustee and beneficiary.” In
essence, Mejia argues Bank of America did not “prove” a valid assignment of the deed of
trust.
         As stated above, “a nonjudicial foreclosure sale is presumed to have been
conducted regularly, and the burden of proof rests with the party attempting to rebut this
presumption. [Citations.]” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th
256, 270.) Accordingly, it was not Bank of America’s burden to “prove” the assignment
was valid, but Mejia’s burden to affirmatively plead facts rebutting the presumption of
regularity and demonstrating Bank of America lacked authority to foreclose. (Ibid.
[“Given the presumption of regularity, if plaintiff contended the sale was invalid because
                                               9
the [foreclosing party] had no authority to conduct the sale, the burden rested with
plaintiff affirmatively to plead facts demonstrating the impropriety.”].)
       Here, the only factual basis alleged in the FAC for Bank of America’s lack of
authority to foreclose was the variance in signatures on the recorded assignment of deed
of trust transferring interest from HSBC to BAC. The FAC alleged the assignment was
executed by Rudolf and notarized by Villavicencio, and those individuals’ signatures
were “different” on assignments recorded with respect to other properties.8 In support of
the argument that the assignment is invalid because of the variance in the signatures,
Mejia relies on Wolfe v. Lipsy (1985) 163 Cal.App.3d 633. However, that case is
inapposite because it dealt with a transfer of homesteaded property that was not executed
by both spouses. (Id. at pp. 640-641.) Here, Mejia does not argue that the assignment
lacked a required signature but rather vaguely contends the signatures are not “what they
purport to be.”9
              c.     The Validity of the Trustee’s Deed
       Mejia contends the trustee’s deed is void because (1) Bank of America did not
“perfect title” pursuant to Civil Code section 2924h, and (2) the trustee’s deed did not




8
        Mejia also contends the assignment does not include Rudolph’s “title” in the
certificate of acknowledgement as purportedly required by Civil Code section 1189.
However, section 1189 requires the notary to set forth his or her “title” in the certificate
of acknowledgement, not the title of the individual whose name is subscribed in the
instrument. (See Civ. Code, § 1189, subd. (a)(3).) We also note that Rudolf’s title,
“assistant secretary,” is listed next to his signature on the document.
9
       Mejia also argues that she showed prejudice due to “robo-signing,” but there are
no allegations to this effect in the operative complaint. The term “robo-signing” refers to
banks’ practice “of signing large numbers of documents without checking that they are
accurate, or by people who do not have the necessary authority.” (Macmillan Dictionary,
Macmillan Publishers Limited <http://www.macmillandictionary.com/dictionary/
american/robosigning> [as of April 29, 2016].)

                                             10
identify a “valid” purchaser because the move out agreements identified a different entity
as the purchaser.10
       Civil Code section 2924h provides that “the trustee’s sale shall be deemed final
upon the acceptance of the last and highest bid, and shall be deemed perfected as
of 8 a.m. on the actual date of the sale if the trustee’s deed is recorded within 15 calendar
days after the sale . . . .” (Civ. Code, § 2924h, subd. (c).) Mejia contends that where, as
here, the trustee’s deed is not recorded within fifteen days following the sale, “no sale
occurred” and “the [t]rustee’s [d]eed is void.”
       In support of this argument, Mejia relies on In re Garner (Bankr. N.D. Cal. 1997)
208 B.R. 698, which she claims held “that the failure to perfect a sale by recording a
trustee’s deed within 15 days of the sale could void the sale.” In fact, the Garner court
stated that “section 2924h(c) provides that the sale is final when the highest and last bid is
accepted” and “a failure to perfect the sale by recording the deed, either within or without
the fifteen days, does not affect this finality.” (Id. at p. 700.) The Garner court did not
hold that a failure to record the trustee’s deed within 15 days voids the trustee’s deed, but
only recognized that such a belated recording would permit a bankruptcy trustee to avoid
the purchaser’s interest under certain circumstances. (Id. at p. 701.)
       With respect to the allegation that Bank of America “contradict[ed] itself in the
move-out agreements and the trustee’s deed as to which entity purchased at the
foreclosure sale,” Mejia contends this establishes that the trustee’s deed is void because
“[a] valid trustee’s deed transferring property requires a grantee.” However, these
allegations do not show that the trustee’s deed lacked a granteerather, the trustee’s deed
clearly set forth that Bank of America is the grantee. Accordingly, the allegations do not
support Mejia’s argument.



10
       Mejia also asserts an argument based on Code of Civil Procedure section 1161’s
“requirement to perfect title,” but that statute does not apply here as it only applies to
unlawful detainer actions. (See Code Civ. Proc., § 1161 [entitled “Unlawful detainer
defined”].)

                                             11
       On all of these grounds, the FAC failed to allege facts showing Bank of America
wrongfully foreclosed on Mejia’s Property.11 Nor has Mejia shown that she could amend
the defects in the FAC such that the court should have granted her leave to do so. (See
Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [plaintiff bears the burden of showing there is
a reasonable possibility a defect in a complaint can be cured by amendment].)
       3.     The Tort Cause of Action
       The fourth cause of action alleges “tortious conduct,” including negligence and
intentional infliction of emotional distress.
              a.     Negligence
       Mejia argues the FAC adequately stated a cause of action for negligence on Bank
of America’s alleged mishandling of her application for a loan modification.
“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed
the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach
proximately caused the plaintiff’s damages or injuries. [Citation.] Whether a duty of
care exists is a question of law to be determined on a case-by-case basis. [Citation.]”
(Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 (Lueras).)
       “[A]s a general rule, a financial institution owes no duty of care to a borrower
when the institution’s involvement in the loan transaction does not exceed the scope of its
conventional role as a mere lender of money. [Citations.]” (Nymark v. Heart Fed.
Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) A lender also does not owe a
borrower a common law duty “to offer, consider or approve a loan modification . . . .”
(Lueras, supra, 221 Cal.App.4th at p. 68.) However, once a lender agrees to review a
borrower’s application to modify her loan, the lender owes a duty to exercise reasonable
care in the review of the application. (See Alvarez v. BAC Home Loan Servicing, L.P.
(2014) 228 Cal.App.4th 941 (Alvarez).)

11
        Because we conclude the FAC did not adequately allege facts showing an illegal
sale of real property, we do not reach the arguments about whether Mejia “ ‘tendered the
amount of the secured indebtedness or was excused from tendering.’ ” (Miles v. Deutsche
Bank National Trust Co., supra, 236 Cal.App.4th at p. 408.)

                                                12
       Here, Mejia contends Bank of America owed her a duty of care in processing her
loan modification application. Bank of America contends it did not owe Mejia a duty
because it acted within its conventional role as a lender of money.
       Mejia cites to Alvarez in support of her argument that Bank of America owed her a
duty of care. In Alvarez, the plaintiffs alleged negligence in the servicing of their
residential mortgage loan. (Alvarez, supra, 228 Cal.App.4th at p. 943.) Specifically, they
alleged the lender defendants breached their duty to exercise reasonable care in the
review of their loan modification applications by (1) failing to timely review the
applications, (2) foreclosing on the properties while the applications were under
consideration, and (3) mishandling the applications by relying on incorrect information.
(Id. at p. 945.) The Alvarez court held that once the defendants undertook to review the
loan for a potential modification, they had a duty to timely and carefully process the
applications and avoid mishandling them. (Id. at pp. 9480-951.) The court further held
the plaintiffs had sufficiently alleged a cause of action for negligence by alleging the
defendants’ mishandling of the plaintiffs’ applications prevented them from receiving
loan modifications they were qualified to receive. (Id. at p. 951.)
       Bank of America argues that, unlike the Alvarez plaintiffs, here, Mejia did not
claim that Bank of America mishandled her application for a loan modification. Bank of
America further contends that it “put Mejia’s foreclosure on hold while considering
whether to put Mejia on forbearance or loan modification. These were all actions that
typically occur while negotiating a loan modification and, [thus,] Bank of America
simply acted in its ‘conventional role as lender of money.’ ”
       Bank of America’s characterization of the alleged facts is inaccurate. As explained
below, the allegations here adequately assert that Bank of America mishandled Mejia’s
application for a loan modification. Moreover, Bank of America’s argument focuses
more on whether the FAC adequately alleged a breach, not a duty. Alvarez held that
when a lender agrees to consider modification of a residential mortgage loan, it has a duty
to exercise reasonable care in that review. (See also MacDonald v. Wells Fargo Bank
N.A. (N.D. Cal. Apr. 24, 2015, No. 14-CV-04970-HSG) 2015 WL 1886000, at *5.)

                                             13
[stating that “[f]ederal district courts applying California law after Alvarez
overwhelmingly hold that the California Supreme Court would recognize a duty of care
during the loan modification review process.”].) Here, Bank of America does not dispute
that the FAC alleged it undertook review of Mejia’s application for a loan modification.12
Therefore, the FAC adequately alleged facts stating a duty of care.
       Bank of America’s argument that Mejia does not allege facts sufficient to show
that it breached its duty of care is unpersuasive. The alleged facts suggest that Bank of
America mishandled Mejia’s application: in response to Mejia’s oral request for help
with her default, Barber told Mejia her “file” would be “present[ed] . . . to the
management committee” and Barber “was waiting to see whether Mejia would be put on
forbearance or loan modification”; Barber then told Mejia her loan would be modified,
but other Bank of America representatives later referred Mejia to a customer service line
to get an application for a loan modification and then told Mejia she could no longer
apply for a loan modification; Mejia was told no foreclosure sale date was set on the date
Bank of America promised her a loan modification, but that same day, the trustee
executed a notice of sale on the Property; Bank of America then foreclosed on the
Property without informing Mejia of the outcome of its purported loan modification
review.
       These facts suggest either that Bank of America never reviewed Mejia’s request
for a loan modification, foreclosed while reviewing her modification request, or
mishandled her request for a loan modification. These circumstances are similar to
Alvarez and are sufficient to allege a breach of the duty of care.
       In addition, Bank of America’s misrepresentations over an extended period of time
deprived her of the opportunity to seek relief elsewhere. (See FAC, ¶ 80 [Mejia “relied
on the promises made by Bank of America and did not seek other opportunities to secure

12
       Bank of America does not dispute that Mejia’s oral request for help with the
default and submission of her current financial information constituted an application for
a loan modification. The FAC certainly alleges facts showing that Bank of America
treated this request as an application for a loan modification.

                                             14
the Property, such as seeking a buyer for the property, or some other alternative”].)
Accordingly, the FAC also adequately alleges facts showing causation and damages.13
(See Alvarez, supra, 228 Cal.App.4th at p. 951 [causation and damages were adequately
alleged where the plaintiffs alleged the defendant’s mishandling of their loan
modification applications “deprived them of the opportunity to seek relief elsewhere.”].)
       However, although the FAC as a whole adequately alleges facts in support of a
negligence claim, the negligence cause of action itself is expressly based on Bank of
America’s alleged failure to follow “proper foreclosure procedures.” “Leave to amend
must be granted if ‘there is a reasonable possibility that the defect can be cured by
amendment.’ [Citation.]” (Lueras, supra, 221 Cal.App.4th at p. 69.) Based on the record
before us, it is clear that Mejia could amend the FAC to state a cause of action for
negligence based on Bank of America’s mishandling of her loan modification application.
We therefore reverse the judgment as to this cause of action and remand to the trial court
with directions to allow Mejia the opportunity to amend it.
              b. Intentional Infliction of Emotional Distress
       Mejia asserts that the alleged mishandling of her application for a loan
modification gave rise to a claim for intentional infliction of emotional distress. “The
elements of a prima facie case for the tort of intentional infliction of emotional distress
[(IIED)] are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct. [Citation.]” ’
[Citations.]” (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 935-
936 (Melorich).)


13
        The parties were given the opportunity to file supplemental letter briefs on this
issue. Both parties filed briefs and the panel read and considered them. The record does
not support Bank of America’s argument that “[u]nlike in Alvarez, here there are no
allegations . . . Bank of America’s conduct [] deprived Mejia of the opportunity to seek
relief elsewhere.”

                                             15
       “The standard set for measuring outrageous conduct indicates the qualifying
conduct must be so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency and to be regarded as atrocious and utterly intolerable in a
civilized community. [Citation.]” (Melorich, supra, 160 Cal.App.3d at p. 936.) Here,
Bank of America’s exercise of its right to foreclose on the Property after Mejia’s default
despite having made a promise to modify her loan does not amount to extreme and
outrageous conduct as a matter of law. (See Quinteros v. Aurora Loan Servs. (E.D. Cal.
2010) 740 F.Supp.2d 1163, 1172 [“The act of foreclosing on a home (absent other
circumstances) is not the kind of extreme conduct that supports an intentional infliction
of emotional distress claim.”].)
       4.     The Breach of Contract Cause of Action
       Mejia contends the trial court erred in holding the statute of frauds barred this
claim. We conclude the alleged oral contract was not sufficiently certain to be
enforceable and the statute of frauds applied to bar the breach of contract claim.
       To state a cause of action for breach of contract, a plaintiff must allege “(1) the
contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) the resulting damages to plaintiff.” (Reichert v. General Ins. Co. (1968)
68 Cal.2d 822, 830.)
       The alleged contract here is Bank of America’s promise to modify Mejia’s loan “in
three to fourth months.” First, we note that a general promise to modify a loan, without
any specified terms, is too uncertain to constitute an enforceable contract. (See Spellman
v. Dixon (1967) 256 Cal.App.2d 1, 3 [“to enforce a contract at law, the offer must be
sufficiently definite or must call for such definite terms in the acceptance, that the
performance required is reasonably certain. [Citation.]”].)
       Second, the trial court was correct that any oral contract to modify the loan was
unenforceable for failure to comply with the statute of frauds. As codified in Civil Code
section 1624, the statute of frauds provides that an agreement pertaining to “the sale of
real property, or of an interest therein” is unenforceable unless it is memorialized in a
writing subscribed by the party to be charged. (Civ. Code, § 1624, subd. (a)(3).) “A
                                              16
mortgage or deed of trust is subject to the statute of frauds. [Citation.]” (Granadino v.
Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.) Furthermore, “[a]n agreement
to modify a contract that is subject to the statute of frauds is also subject to the statute of
frauds. [Citations.]” (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008)
167 Cal.App.4th 544, 553 (Secrest).) Accordingly, because a mortgage agreement or
deed of trust is required to be in writing, an agreement for modification of the debt must
also be in writing.
       Mejia argues the alleged contract was not an agreement to modify the loan, but
rather, akin to a Trial Period Plan whereby a bank guarantees a homeowner a loan
modification if the homeowner makes timely payments under the plan, citing to Chavez v.
Indymac Mortgage Services (2013) 219 Cal.App.4th 1052 (Chavez). However, Chavez is
of no assistance to Mejia. In Chavez, the court held that the lender’s “Trial Period Plan”
expressly stated that it did not modify the original loan documents and for that reason was
not “subject to the statute of frauds.” (Id. at p. 1062.) Here, unlike Chavez, there are no
allegations that the agreement with Bank of America required Mejia to take certain
actions as a condition to the bank agreeing to modify the loanrather, Bank of America
allegedly agreed to modify the loan without any further action by Mejia. The court in
Chavez confirmed that “[a]n agreement to modify a contract that is subject to the statute
of frauds is also subject to the statute of frauds,” but held that, because of the lender’s
representations to the plaintiff and the plaintiff’s performance in reliance thereon, the
lender was estopped from asserting the statute of frauds. (Id. p. 1057.)
       As the FAC failed to allege facts showing the existence of a valid contract or that
the alleged contract complied with the statute of frauds, no cause of action for breach of
contract was stated.
       5.     The Promissory Estoppel Cause of Action
       Mejia contends the trial court erred in holding the FAC did not allege facts
showing a “clear and unambiguous promise” sufficient to support a claim for promissory
estoppel. We disagree.


                                               17
       “ ‘ “The elements of a promissory estoppel claim are ‘(1) a promise clear and
unambiguous in its terms; (2) reliance by the party to whom the promise is made;
(3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the
estoppel must be injured by his reliance.’ ” ’ [Citation.]” (Aceves v. U.S. Bank, N.A.
(2011) 192 Cal.App.4th 218, 225 (Aceves).)
       “ ‘The promise must . . . be “clear and unambiguous in its terms.” ’ [Citation.]
‘To be enforceable, a promise need only be “ ‘definite enough that a court can determine
the scope of the duty[,] and the limits of performance must be sufficiently defined to
provide a rational basis for the assessment of damages.’ ” . . . It is only where “ ‘a
supposed “contract” does not provide a basis for determining what obligations the parties
have agreed to, and hence does not make possible a determination of whether those
agreed obligations have been breached, [that] there is no contract.’ ” ’ [Citation.]”
(Aceves, supra, 192 Cal.App.4th at p. 226.)
       Here, Bank of America’s promise that “a loan modification to [sic] be completed
in three to four months” is not clear and unambiguous in its terms. In fact, the terms of
this alleged agreementsuch as how the loan would be modified, whether the interest rate
would be decreased or how muchare undefined. Thus, the agreement is too nebulous to
allow the court to assess damages for its breach and cannot provide the basis for a
promissory estoppel claim.
       6.     The Declaratory Relief Cause of Action
       To qualify for declaratory relief, a plaintiff must show: “(1) a proper subject of
declaratory relief, and (2) an actual controversy involving justiciable questions relating to
the rights or obligations of a party.” (Code Civ. Proc., § 1060; Brownfield v. Daniel
Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)
       Here, the declaratory relief cause of action seeks a declaration that Bank of
America wrongfully foreclosed on Mejia’s property. On appeal, Mejia contends only that
the FAC “sufficiently pleads a declaratory relief claim with an actual controversy.”
However, declaratory relief “ ‘operates prospectively, and not merely for the redress of
past wrongs,’ ” and this cause of action seeks redress for a past wrong. (Babb v. Superior
                                              18
Court (1971) 3 Cal.3d 841, 848.) Accordingly, the FAC did not adequately set forth a
cause of action for declaratory relief.
       7.     The Injunctive Relief Cause of Action
       Injunctive relief is a remedy, not a cause of action. (See City of South Pasadena v.
Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 [“ ‘A permanent
injunction is merely a remedy for a proven cause of action. It may not be issued if the
underlying cause of action is not established.’ ”].) Here, the injunctive relief cause of
action is based on Mejia’s wrongful foreclosure claims and seeks to restore title and
possession of the Property to Mejia. As the FAC failed to allege facts stating an
underlying cause of action for wrongful foreclosure, the order sustaining the demurrer
without leave to amend as to the claim for injunctive relief was proper.




                                             19
                                       DISPOSITION
       Mejia’s requests for judicial notice are denied. The judgment is reversed as to the
fourth cause of action for “tortious conduct” and the matter is remanded to the trial court
with directions to grant Mejia leave to file an amended complaint. The judgment is
affirmed in all other respects. In light of the mixed results here, the parties shall bear
their own costs on appeal. (Cal. Rules of Court, Rule 8.278(a)(5).)


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   EDMON, P. J.


We concur:




                     LAVIN, J.




                     HOGUE, 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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