Filed 7/2/15 White v. Wells Fargo Home Mortgage CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


MAURA WHITE,
         Plaintiff and Appellant,
                                                                     A140195
v.
WELLS FARGO HOME MORTGAGE,                                           (Alameda County
                                                                     Super. Ct. No. HG12648600)
         Defendant and Respondent.


                                                             I.
                                                INTRODUCTION
         Maura White sued Wells Fargo Home Mortgage (Wells Fargo) for refusing to
permanently modify her payment obligations under her home mortgage loan. After
sustaining a demurrer to White’s second amended complaint without leave to amend, the
trial court entered judgment in favor of Wells Fargo. We affirm.
                                                            II.
                                          STATEMENT OF FACTS
         A. Background1
         In July 2003, White obtained a $397,000 adjustable rate mortgage loan from
World Savings Bank, FSB (the loan). The loan was secured by a deed of trust against
White’s residential property in Castro Valley. In 2008, World Savings Bank changed its

         1
         The trial court took judicial notice of documentary evidence pertaining to the
background of this case, which is included in the Appellant’s Appendix and referenced
by the parties in their briefs.


                                                             1
name to Wachovia Mortgage, FSB, and, in 2009, Wells Fargo merged with Wachovia
and became the beneficial owner of White’s loan.
       According to an April 2010 “Notice of Default and Election to Sell Under Deed of
Trust,” White stopped making payments on her loan in May 2009. A trustee sale was
noticed for November 8, 2010. However, White avoided foreclosure by filing a
Chapter 13 bankruptcy petition on November 2, 2010.
       In May 2011, the bankruptcy court confirmed White’s Chapter 13 bankruptcy
plan. In paragraph 4 of that plan, White stated that she would make payments on her loan
in the amount $2,400 a month directly to the lender. Notwithstanding this unqualified
representation, White made a seemingly inconsistent proposal in paragraph 7 of her plan,
which stated: “Debtor is seeking loan modification from Wachovia/Wells Fargo on 1st
deed of trust. Debtor will make estimated HAMP payment until modification approved
or denied. No arrearage claim to be paid through plan. If debtor is granted a loan
modification, arrears will be dealt with through modification. If debtor is denied
modification, or 6 months elapses from date of filing with no modification, property will
be surrendered.”
       B. HAMP
       The proposal to make “HAMP” payments that White included in her Chapter 13
plan was a reference to the Home Affordable Mortgage Program. Because HAMP
became the centerpiece of White’s subsequent lawsuit against Wells Fargo, we briefly
summarize its function and requirements.
       Pursuant to the Troubled Asset Relief Program (TARP), the United States
Treasury Department implemented a plan to minimize home foreclosures. (Bushell v.
JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 922-933 (Bushell).) “That
plan was HAMP, introduced in February 2009, and funded by a $50 billion set-aside of
TARP monies to induce lenders to refinance mortgages to reduce monthly payments for
struggling homeowners. [Citation.]” (Ibid.)
       Under HAMP, “qualifying homeowners may obtain permanent loan modifications
that reduce their mortgage payments. Lenders receive various incentives from the


                                             2
government for each HAMP modification. [Citation.] The participating lender initially
determines whether a borrower satisfies certain threshold requirements regarding the
amount of the loan balance, monthly payment, and owner occupancy. [Citation.] It then
implements the HAMP modification process in two stages. [Citation.] In the first stage,
it provides the borrower with a ‘Trial Period Plan’ (TPP), setting forth the trial payment
terms, instructs the borrower to sign and return the TPP and other documents, and
requests the first trial payment. [Citation.] In the second stage, if the borrower has made
all required trial payments and complied with all of the TPP’s other terms, and if the
borrower’s representations on which the modification is based remain correct, the lender
must offer the borrower a permanent loan modification. [Citations.]” (Rufini v.
CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 305-306, italics omitted (Rufini).)
       Several courts have found that a borrower who has been provided with a HAMP
TTP may sue the lender under state contract law for failing or refusing to offer a
permanent loan modification. (See, e.g., Rufini, supra, 227 Cal.App.4th at pp. 305-306;
Bushell, supra, 220 Cal.App.4th at pp. 922–923; West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 786-788; Wigod v. Wells Fargo Bank, N.A. (7th Cir. 2012)
673 F.3d 547, 556-557.)
       C. White’s Pleadings
       In September 2012, White filed a complaint against Wells Fargo seeking damages
and equitable relief, including a judicial declaration that White’s loan had been modified
to reduce permanently her monthly payments to $1,570. The bare-bones complaint
alluded to two legal theories: (1) White was the beneficiary of a class action settlement
pursuant to which Wells Fargo agreed to permanently reduce her loan payments; and
(2) Wells Fargo breached an “implied agreement” to modify the loan.
       In March 2013, White filed a first amended complaint (FAC) instead of opposing
Wells Fargo’s demurrer. White attempted to allege causes of action for “breach of
contract/promissory estoppel” and violations of Business and Professions Code
section 17200 et seq. (the UCL), based on two potential contract theories. First, White
alleged that her Chapter 13 bankruptcy plan constituted an enforceable contract to


                                             3
permanently modify her mortgage loan by reducing her monthly payment obligations to
$1,570. White’s second theory was that HAMP required Wells Fargo to modify her loan
permanently because White qualified for HAMP relief and Wells Fargo accepted public
tax dollars under TARP.
       Wells Fargo filed a demurrer to the FAC and a hearing was set for August 6, 2013.
The trial court published a tentative ruling sustaining the demurrer which White did not
contest. In a detailed order, the trial court outlined deficiencies in the FAC and granted
White the opportunity to amend.
       On August 26, 2013, White filed her second amended complaint (SAC). Although
the SAC is not a model pleading, we discern from it the following factual allegations
about White’s loan: Since November 2010, White has made monthly mortgage payments
in the amount of $1,570 pursuant to a provision in her confirmed Chapter 13 bankruptcy
plan which White attached to her SAC. White used HAMP guidelines to calculate this
monthly payment. Wells Fargo did not object to White’s Chapter 13 plan, dispute her
HAMP calculation, or reject any of her loan payments. Incorporating these factual
allegations, White attempted to allege causes of action for (1) breach of contract;
(2) promissory estoppel; and (3) UCL violations.
       The contract theory alleged in the SAC was that Wells Fargo breached a HAMP
agreement to reduce White’s monthly loan payments to $1570. White alleged that Wells
Fargo was required to offer her a HAMP TTP because (1) she qualified for a mortgage
payment reduction under applicable HAMP guidelines and (2) Wells Fargo agreed to
offer its qualified borrowers a HAMP TTP by accepting TARP money. White further
alleged that she satisfied her obligations under the TTP by making reduced monthly
payments for the trial period and, therefore, HAMP required that Wells Fargo
permanently modify her loan.
       In her second cause of action for promissory estoppel, White alleged that Wells
Fargo’s actions constituted a “clear, definite and certain” promise that if White made
reduced payments during the trial period she would receive a permanent loan
modification. White also alleged that she detrimentally relied on Wells Fargo’s promises


                                             4
by foregoing other remedies to save her home. Finally, in her third cause of action,
White alleged in summary fashion that Wells Fargo’s acts as alleged in the SAC
constitute unlawful, unfair and/or fraudulent business practices under the UCL.
       C. The Demurrer Ruling
       Wells Fargo filed a demurrer to the SAC, a hearing was set for October 18, 2013,
and again White did not contest a published tentative ruling. Thus, on October 18, the
trial court issued a written order sustaining Wells Fargo’s demurrer to the SAC without
leave to amend (the October 18 order). In its October 18 order, the court found that it had
sustained demurrers to substantially similar causes of action in the FAC, and that White
failed to remedy the numerous deficiencies that were outlined in the prior order.
Nevertheless, the court provided another detailed explanation of material deficiencies in
each of White’s causes of action.
       Notably, the court found that the first cause of action for breach of contract failed
to allege facts that would establish the existence of a contract to modify White’s loan.
White did not attach a written agreement to the SAC, allege facts setting forth the terms
of a loan modification agreement, or even allege that there was an offer and acceptance of
terms that were definite and enforceable. In this regard, the court found that the
Chapter 13 plan that White attached to her SAC was not a contract. The trial court also
found that White did not allege facts which would establish that she entered into a loan
modification agreement pursuant to HAMP. Nor did she allege facts to overcome the
statute of frauds.
       The trial court further explained that the second and third causes of action suffered
many of the same deficiencies as the first. In addition, the second cause of action for
promissory estoppel was not supported by factual allegations which would establish the
elements of a definite promise and detrimental reliance. Further, White’s UCL claim
failed to specify what unlawful, unfair or deceptive act by Wells Fargo caused her an
“injury in fact”—a major deficiency highlighted in the order sustaining Wells Fargo’s
demurrer to the FAC.



                                              5
                                              III.
                                       DISCUSSION
       A. Standard of Review
       “We review an order sustaining a demurrer de novo to determine whether the
complaint states facts sufficient to constitute a cause of action. [Citations.] We construe
the complaint ‘liberally . . . with a view to substantial justice between the parties’
[citation] and treat it ‘ “ ‘as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context.” ’
[Citations.]” (Rufini, supra, 227 Cal.App.4th at pp. 303-304.)
       “When the court sustains a demurrer without leave to amend, ‘ “we decide
whether there is a reasonable possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.” [Citations.]’ [Citation.] Whether the plaintiff
will ultimately be able to prove the complaint’s allegations is not relevant. [Citation.]”
(Rufini, supra, 227 Cal.App.4th at p. 304.)
       B. Issues on Appeal
       In her Appellant’s Opening Brief (AOB), White’s primary argument is that the
judgment rests on an erroneous interpretation of HAMP. Taking the position that HAMP
confers a legally enforceable right to a loan modification, White posits that allegations in
the SAC which state that she and Wells Fargo were both HAMP participants are
sufficient to establish that she and Wells Fargo entered into a loan modification
agreement. Under White’s interpretation of HAMP, neither a written offer nor a signed
agreement is required to find a legally enforceable loan modification contract.
       In her AOB, White also suggests that the trial court misconstrued the SAC to the
extent it concluded that the Chapter 13 plan did not constitute a written agreement.
According to the AOB: “The Court pointed out the only writing was the BK Chapter 13


                                               6
plan. However, Appellant doesn’t rely only on the Chapter 13 plan. The allegations
above that she was accepted into HAMP, paid HAMP payments and never received a
permanent modification is sufficient. The Chapter 13 plan statement only supplements
these allegations.”
       In her Appellant’s Reply Brief (ARB), White abandons the material arguments
advanced in her AOB. She concedes that her “claims do not fit neatly into established
caselaw [sic],” that she was “not technically given a Trial Payment Plan” under HAMP,
and that “she does not have a private right of action under HAMP.” Thus, White
concludes, “[t]o the extent that Appellant alleges that Respondent was obligated to do
anything ‘under HAMP,’ Appellant withdraws such allegations.”
       Despite her concessions, White insists that she has or can state a cause of action
against Wells Fargo for refusing to modify her loan permanently. Reasoning that a
HAMP TTP is not the only path to a permanent loan modification, White argues that her
SAC alleges facts which support a different cognizable theory for establishing an
enforceable contract to modify her loan permanently. White’s alternative theory is that
her Chapter 13 plan “was a valid contract” and that the conduct of the parties during the
six-month period following the execution of that so-called trial plan agreement, or TPP,
constituted “an implied-in-fact contract to permanently modify Appellant’s loan.”
       “Points raised for the first time in a reply brief will ordinarily not be considered,
because such consideration would deprive the respondent of an opportunity to counter the
argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; see
also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2014) ¶ 9:78, pp. 9-26-9-27 [and cases discussed therein].) Here, White’s belated
argument that her Chapter 13 plan created a contract between her and Wells Fargo is
procedurally and factually improper because, as discussed above, she made an express
representation in her AOB that her Chapter 13 plan was not an agreement. Despite that
representation, however, Wells Fargo addressed White’s Chapter 13 contract theory in its
Respondent’s Brief. Furthermore, after the ARB was filed, Wells Fargo filed a letter



                                              7
providing this court with additional authority pertinent to White’s Chapter 13 contract
theory and it also addressed that theory during oral argument before this court.
       Under these circumstances, we will not address the arguments in White’s AOB
because they have been waived, but we will consider the arguments in White’s ARB.
       C. Analysis
       White contends that if all her pleading allegations pertaining to HAMP are excised
from the SAC, the remaining allegations regarding the implementation of White’s
Chapter 13 bankruptcy plan are sufficient to support the causes of action in the SAC.
              1. Breach of Contract
       “To allege 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.’ [Citation.]” (Bushell, supra, 220
Cal.App.4th at p. 921.) Here, the SAC does not allege facts to establish the first element
of a breach of contract claim under White’s newly resurrected Chapter 13 contract theory.
       “A Chapter 13 reorganization plan is a contract between the debtor and creditors.”
(In re Richardson (Bankr. S.D. Cal. 1996) 192 B.R. 224, 228.) However, the terms of
White’s confirmed plan, a document incorporated by reference into the SAC, undermine
her new theory that the plan itself constituted a contract to temporarily or permanently
reduce her monthly payment obligation to $1,570 per month. In that plan, White
unequivocally promised that she would make monthly mortgage payments in the amount
of $2,400. The plan does not make any reference to a monthly payment of $1,570.
       In her Chapter 13 plan, White also floated a proposal to make “estimated HAMP”
payments in some unspecified amount while seeking a loan modification, representing
that if she did not obtain a modification within six months, she would surrender her
property. This proposal did not impose any obligation on Wells Fargo, nor did it
document any promise allegedly made by Wells Fargo.
       White contends that the allegation in her SAC that Wells Fargo did not object to
her Chapter 13 plan is sufficient to establish acceptance of its terms. However, White
herself ignores the unambiguous term in that plan which obligated her to make monthly


                                              8
payments to Wells Fargo in the amount of $2,400. Perhaps because her own pleading
allegations establish that she breached this express obligation, White misconstrues the
proposal in her bankruptcy plan as a contract term obligating Wells Fargo to accept
monthly loan payments in the amount of $1,570. This interpretation is not only
manifestly unreasonable, it would create an irreconcilable conflict with an express term
of the confirmed bankruptcy plan. White cannot carry her burden of alleging facts to
establish the existence of a loan modification contract by exploiting an ambiguity that she
created in her own bankruptcy plan. (See In re Fawcett (11th Cir. 1985) 758 F.2d 588,
591 [“the debtor as draftsman of the plan has to pay the price if there is any ambiguity
about the meaning of the terms of the plan”].)2
       White contends that if the Chapter 13 plan was not itself an agreement, it is
evidence of an implied-in-fact contract for a loan modification. “An express contract is
one, the terms of which are stated in words.” (Civ. Code, § 1620.) “An implied contract
is one, the existence and terms of which are manifested by conduct.” (Civ. Code,
§ 1621.) “ ‘The distinction between express and implied in fact contracts relates only to
the manifestation of assent; both types are based upon the expressed or apparent intention
of the parties. “The true implied contract, then, consists of obligations arising from a
mutual agreement and intent to promise where the agreement and promise have not been
expressed in words.” [Citations.]’ [Citation.]” (Varni Bros. Corp. v. Wine World, Inc.
(1995) 35 Cal.App.4th 880, 888.)
       Here, White argues the parties manifested their mutual assent to a trial period plan
that was analogous to a HAMP TTP, i.e., an agreement requiring Wells Fargo to
permanently modify the loan if White made the reduced payments proposed in her
Chapter 13 plan for six months. She further contends that she has already pleaded


       2
          Arguably, the proposal in White’s Chapter 13 plan was indicative of a future
intent to modify the term of the confirmed plan requiring White to make monthly
payments to Wells Fargo in the amount of $2,400. However, White did not allege that
that she initiated a proceeding in the bankruptcy court to obtain a modification of her
confirmed Chapter 13 plan. (See 11 U.S.C. § 1329.)


                                             9
sufficient facts to establish an implied in fact TTP by alleging that Wells Fargo (1) did
not object to her bankruptcy plan, (2) did not explicitly refuse to grant her a loan
modification, and (3) accepted loan payments which she expressly characterized as
“HAMP” payments. In making this argument, White posits that it is generally
understood that “HAMP” means a loan modification program in the same sense that
“Band-Aid” means a bandage. Thus, by accepting White’s proffered “HAMP” payments,
Wells Fargo allegedly manifested its agreement to place White in a modification program
pursuant to the proposal in her Chapter 13 plan.
       The first and most obvious problem with White’s implied contract theory is that
the contract she seeks to imply is inconsistent with the bankruptcy plan upon which she
relies. That plan states that White will make monthly mortgage payments in the amount
of $2,400. However, White has repeatedly acknowledged that she did not make those
payments. Instead, since November 2010—before the Chapter 13 plan was even
proposed—White unilaterally began making payments in the amount of $1,570 a month.
That the SAC characterizes these payments as the estimated HAMP payments referenced
in the Chapter 13 plan is beside the point. The factual allegations show that these
payments were not made pursuant to an alleged agreement with Wells Fargo, but
pursuant to some decision White made on her own in November 2010 and subsequently
incorporated into her proposal in the May 2011 Chapter 13 plan.
       Another crucial problem with White’s implied contract theory is that there is no
consideration for an implied promise to give White a hybrid TPP. Regardless how White
characterizes the reduced loan payments that she has allegedly made since November
2010, Wells Fargo’s acceptance of those payments cannot constitute consideration for a
loan modification agreement because White was already obligated to make even greater
payments under her note and deed of trust. “A statutory or legal obligation to perform an
act may not constitute consideration for a contract. [Citation.]” (O’Byrne v. Santa
Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 808; see also Grant v.
Aerodraulics Co. (1949) 91 Cal.App.2d 68, 75 [“ ‘It is an uniform rule of law that a
consideration for an agreement is not adequate when it is a mere promise to perform that


                                             10
which the promisor is already legally bound to do.’ [Citation.]”]; 1 Witkin, Summary of
Cal. Law (10th ed. 2005) Contracts, § 218, p. 251 [“doing or promising to do what one is
already legally bound to do cannot be consideration for a promise”].)
       White contends that her reduced loan payments are consideration for the implied
contract because Wells Fargo was not otherwise entitled to receive monthly loan
payments from White. According to this theory, once Wells Fargo filed a notice of
default, White “was no longer obligated to make monthly payments on her loan” in any
amount because, at that point, the only way to cure the default was for her to pay “the
entirety of her arrearages.” White’s premise, which is unsupported by legal authority,
does not support her conclusion. A debtor’s payment of some amount less than what she
is contractually obligated to pay (i.e., her breach) cannot be consideration for a
modification of that contract. Put another way, a debtor’s default does not erase
contractual obligations assumed in a promissory note and deed of trust. This is
particularly true when, as here, those contracts provide that if the debtor defaults, the
lender does not waive rights that it elects not to assert at the time of the default.
       Alternatively, White contends that once she filed for bankruptcy, Wells Fargo lost
its right to any future loan payments because at that point White acquired the right to
“surrender” her property. According to this theory, White could have avoided having to
make any further loan payments by surrendering her property in bankruptcy, but she gave
up that right by promising to make six months of estimated HAMP payments. Thus,
White posits that by agreeing to the proposal in the Chapter 13 plan, Wells Fargo
acquired the right to receive reduced loan payments “to which it would not have
otherwise been entitled.” Again, White fails to support her assumptions or conclusion
with pertinent authority. Furthermore, White has never alleged that she was prevented
from surrendering her property. Indeed, the SAC allegations establish that the surrender
of White’s property was not a right that White secured by filing bankruptcy, but a
potential consequence of her own breach of the underlying loan agreement, a
consequence she has so far avoided by filing for bankruptcy and then by pursuing this
lawsuit.


                                              11
       A third independent problem with White’s implied contract theory is that it
violates the statute of frauds. Contrary to White’s unsupported contention on appeal, a
mortgage loan modification agreement is subject to the statute of frauds and must
therefore be evidenced by a writing. “An agreement for the sale of real property or an
interest in real property comes within the statute of frauds. [Citation.] A mortgage or
deed of trust also comes within the statute of frauds.” (Secrest v. Security National
Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552.) And “[a]n agreement to
modify a contract that is subject to the statute of frauds is also subject to the statute of
frauds. [Citations.]” (Id. at p. 553; see also Dooms v. Federal Home Loan Mortgage
Corp. (E.D. Cal. 2011) 2011 U.S. Dist. LEXIS 38550 at *17 [“ ‘an alleged offer for a
loan modification is subject to the statute of frauds since it seeks to modify a deed of
trust, which is subject to the statute of frauds’ ”].)
       Finally, White contends the trial court abused its discretion by rejecting her
request to amend the SAC to clarify the circumstances surrounding the Chapter 13
“agreement.” Specifically, White argues that she can “establish” her implied contract
claim by amending her pleading to allege that Wells Fargo initially objected to her
Chapter 13 plan but subsequently withdrew that objection and, at around the time of the
withdrawal of that objection and the confirmation of the plan, White’s bankruptcy
attorney told her that “Wells Fargo had agreed that the said $1,570 payments were going
to be received by Wells Fargo as trial plan payments under the HAMP Program.”
       White argues that this proposed amendment will clarify “that there was a meeting
of the minds with respect to what the $1,570.00 payments constituted, how they were to
be viewed, and what two scenarios could result after six months.” This proposed
amendment appears to introduce the possibility of an oral promise to provide White with
a hybrid TPP which (1) violated the statute of frauds; and (2) was not supported by
consideration. In other words, this new theory suffers from the same deficiencies as the
theories White alleged in three prior versions of her complaint. Thus, White has failed to
establish that the trial court abused its discretion by denying her leave to amend her
breach of contract cause of action.


                                               12
              2. Promissory Estoppel
       “ ‘Promissory estoppel is “a doctrine which employs equitable principles to satisfy
the requirement that consideration must be given in exchange for the promise sought to
be enforced.” [Citation.]’ [Citation.] Because promissory estoppel is an equitable
doctrine to allow enforcement of a promise that would otherwise be unenforceable, courts
are given wide discretion in its application. [Citations.]” (US Ecology, Inc. v. State of
California (2005) 129 Cal.App.4th 887, 901-902.) The doctrine binds a promisor
“ ‘when he should reasonably expect a substantial change of position, either by act or
forbearance, in reliance on his promise, if injustice can be avoided only by its
enforcement.’ [Citation.] ‘ “The vital principle is that he who by his language or conduct
leads another to do what he would not otherwise have done shall not subject such person
to loss or injury by disappointing the expectations upon which he acted.” ’ [Citation.]
‘ “In such a case, although no consideration or benefit accrues to the person making the
promise, he is the author or promoter of the very condition of affairs which stands in his
way; and when this plainly appears, it is most equitable that the court should say that they
shall so stand. [Citations.]” ’ [Citation.]” (Garcia v. World Savings, FSB (2010) 183
Cal.App.4th 1031, 1041.)
       White contends that “when taken as a whole, the allegations in her SAC state
sufficient facts to constitute a cause of action for Promissory Estoppel, even if she is not
ultimately able to prove the breach of a proper contract . . . .” We disagree.
       “The elements of promissory estoppel are (1) a clear and unambiguous promise by
the promisor, and (2) reasonable, foreseeable and detrimental reliance by the promisee.
[Citation.]” (Bushell, supra, 220 Cal.App.4th at p. 929.) The SAC does not contain any
allegations of fact that would establish Wells Fargo made a clear and unambiguous
promise to give White a hybrid TPP, or a permanent loan modification. The bare
allegation that Wells Fargo made “clear, definite and certain promises” is not a properly
pleaded material fact but simply a legal conclusion which we disregard on appeal.
(Rufini, supra, 227 Cal.App.4th at pp. 303-304.) Similarly, SAC allegations to the effect
that White reasonably and detrimentally relied on some unspecified promise by making


                                             13
TPP payments instead of pursuing other opportunities to cure her default are conclusory
contentions, not allegations of fact.
       White mistakenly relies on Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218
(Aceves). In that case, the plaintiff homeowner filed for Chapter 7 bankruptcy because
she could not afford to make her mortgage payments. When she contacted her lender,
U.S. Bank, plaintiff was told “that, once her loan was out of bankruptcy, the bank ‘would
work with her on a mortgage reinstatement and loan modification.’ ” (Id. at p. 223.) The
plaintiff intended to convert her case to a Chapter 13 proceeding and, with financial
assistance from her husband, cure her default and reinstate her loan. (Id. at pp. 221, 223.)
However, U.S. Bank filed a motion to lift the bankruptcy stay. Then, the bank’s agent
requested permission from plaintiff’s counsel to contact plaintiff directly in order to
“ ‘explore Loss Mitigation possibilities.’ ” In response, plaintiff contacted the agent and
was told that nobody could speak to her until the automatic stay was lifted. (Id. at
p. 223.) Relying on U.S Bank’s promise to work with her to reinstate and modify her
loan, plaintiff did not convert her case to a Chapter 13 proceeding or oppose the motion
to lift the bankruptcy stay. Ultimately, U.S. Bank foreclosed on plaintiff’s property. (Id.
at pp. 223-224.)
       The Aceves court found that the plaintiff stated a cause of action for promissory
estoppel by alleging the facts summarized above. (Aceves, supra, 198 Cal.App.4th at
p. 226.) U.S. Bank’s agreement to “ ‘work with’ ” the plaintiff “ ‘on a mortgage
reinstatement and loan modification’ if she no longer pursued relief in the bankruptcy
court” was “a clear and unambiguous promise.” (Ibid.) Furthermore, the plaintiff
reasonably and foreseeably relied on U.S. Bank’s promise, because the opportunity to
work with the bank to modify and reinstate the loan was relief that would not have been
available if plaintiff had converted her case to a Chapter 13 proceeding. As the court
explained, a “bankruptcy court could have reinstated the loan—permitted Aceves to cure
the default, pay the arrearages, and resume regular loan payments—but it could not have
modified the terms of the loan, for example, by reducing the amount of the regular
monthly payments or extending the life of the loan. [Citations.]” (Id. at p. 227, italics


                                             14
omitted.) Thus, the court concluded that “[b]y promising to work with Aceves to modify
the loan in addition to reinstating it, U.S. Bank presented Aceves with a compelling
reason to opt for negotiations with the bank instead of seeking bankruptcy relief.
[Citation.]” (Id. at p. 228, italics omitted.)
       White contends that the “similarities between Aceves and the instant action are
striking.” We disagree. The Aceves plaintiff alleged that her bank made an explicit
representation that it would work with her to modify and reinstate her loan. Here by
contrast, White failed to allege facts that would establish a clear promise; she appears to
argue that Wells Fargo’s promise can be inferred from a proposal that she herself made.
As noted earlier, White unilaterally decided to reduce her monthly payments to Wells
Fargo even before filing her Chapter 13 proceeding. In addition, Wells Fargo did not
draft the Chapter 13 plan or make the proposal contained in it. Furthermore, although it
accepted reduced payments, the underlying debt existed independently of anything White
said or did in connection with her bankruptcy case. Just as White cannot unilaterally
create a loan modification contract, she cannot use her own proposal to establish that
Wells Fargo made a promise to modify her loan.
       Furthermore, in stark contrast to the Aceves plaintiff, White did not allege any
facts to show detrimental or foreseeable reliance. Even if the Chapter 13 proposal could
be construed as evidence of some promise by Wells Fargo, that proposal did not state or
imply that Wells Fargo would give White a permanent loan if she made six months of
reduced loan payments. Indeed, we find no facts in the SAC, the appellate record or the
parties’ briefs which could conceivably support a finding that White reasonably or
foreseeably construed Wells Fargo’s acceptance of reduced payments she made pursuant
to her Chapter 13 plan proposal as a promise to modify her loan permanently.
       White contends that if Wells Fargo had accepted only six months of payments as
proposed in the Chapter 13 plan, but then rejected the seventh, “then Appellant would
likely have no claims against Respondent.” However, she argues, because the bank
“continued to accept those payments for three and a half years,” she has pleaded facts to
establish detrimental reliance and resultant damages. This theme, which runs throughout


                                                 15
White’s appeal, misconstrues the few facts that White alleged or incorporated into her
SAC. As noted, White alleged that she began making reduced loan payments in
November 2010, long before she submitted her Chapter 13 plan. Second, the Chapter 13
plan proposed that White would make reduced loan payments while she sought a loan
modification and that if she did not receive such a modification in six months time, she
would surrender her property. Nowhere did White allege that she withheld surrendering
the property because of anything Wells Fargo said, nor did she allege or even suggest that
she was prevented from surrendering her property while, on her own initiative, she
continued to send reduced monthly payments to Wells Fargo.
       Finally, White’s theory of reliance rests on the illogical premise that the
reasonableness of her expectation of a loan modification directly correlates to the number
of reduced loan payments that Wells Fargo accepts. If anything, the opposite is true. At
least by the time White filed this lawsuit she had to know that Wells Fargo did not intend
to permanently modify her monthly payment obligations.
              3. The UCL
       “The purpose of the UCL ‘is to protect both consumers and competitors by
promoting fair competition in commercial markets for goods and services. [Citation.]’
[Citations.] The UCL ‘defines “unfair competition” to mean and include “any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading
advertising and any act prohibited by [the false advertising law ([Bus. & Prof. Code,]
§ 17500 et seq.)].” [Citation.]’ [Citation.] Whether a plaintiff has standing to sue under
the UCL and whether an alleged business practice violated the UCL both may be
resolved at the demurrer stage in appropriate cases. [Citations.]” (Drum v. San
Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252 (Drum).)
       “[A] private person has standing to sue under the UCL only if that person has
suffered injury and lost money or property ‘as a result of such unfair competition.’
[Citation.]” (Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1098, italics omitted
(Daro).) Thus, in order to state a claim under the UCL White must plead facts which
“(1) establish a loss or deprivation of money or property sufficient to qualify as injury in


                                             16
fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e.,
caused by, the unfair business practice or false advertising that is the gravamen of the
claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset); see also
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 521-522 (Jenkins).)
       White claims that she has UCL standing because Wells Fargo caused her to make
close to four years of estimated HAMP payments that Wells Fargo was not otherwise
entitled to receive. However, the reduced loan payments that White unilaterally had been
making since November 2010 do not qualify as an economic injury because, as discussed
above, White was legally obligated to make payments of even more than that amount
under the terms of her loan. Furthermore, White has not alleged or suggested facts to
show that she made the reduced loan payments as a result of some unlawful business act
on the part of Wells Fargo. In this regard, the SAC allegations establish the following
facts: In November 2010, White made a unilateral decision to start making a reduced
loan payment; in April 2011, White submitted a bankruptcy plan in which she proposed
to make estimated HAMP payments for six months while she pursued a loan
modification; the six-month period proposed in the Chapter 13 plan came and went but
Wells Fargo did not permanently modify the loan.
       These pleaded facts show that White made unilateral decisions to reduce her
monthly loan payments and to continue to make that reduced monthly loan payment for
several years notwithstanding the fact that Wells Fargo never offered to modify her loan,
either temporarily or permanently. In other words, White has not identified any allegedly
unfair, unlawful or fraudulent business practice by Wells Fargo which caused her to
sustain an injury in fact. By the same token, she has not alleged facts that would
establish a substantive violation under any prong of the UCL.
       “The UCL’s unlawful prong ‘ “ ‘borrows’ violations of other laws and treats them
as unlawful practices” that the unfair competition law makes independently actionable.
[Citation.]’ [Citation.]” (Jenkins, supra, 216 Cal.App.4th 497 at p. 520.) Furthermore,
even if a business practice is not unlawful, it may violate the UCL if it is deemed “unfair”
as that term has been defined by the pertinent case law. (See Cel-Tech Communications


                                             17
v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163.) And, a business practice
is fraudulent within the meaning of the UCL if it is likely to deceive or mislead the
consumer. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 312; Boschma v. Home Loan
Center, Inc. (2011) 198 Cal.App.4th 230, 252-253.)
       In the present case, the SAC cause of action for violations of the UCL is supported
by three allegations. First, White incorporates prior allegations by reference; second she
alleges on information and belief that Wells Fargo’s acts constitute an unlawful, unfair
and/or fraudulent business practice; and third she alleges that Wells Fargo’s unspecified
acts caused her unspecified damage and injury. These allegations provide no factual
basis for establishing a UCL violation.
       On appeal, White makes the tautological assertion that her conclusory allegations
are sufficient to withstand a demurrer because all UCL claims depend on the resolution of
issues of fact. First, we agree that an UCL claim can be fact intensive which is why the
failure here to allege concrete facts identifying the alleged violation is such a glaring
deficiency. Second, to withstand a demurrer, a pleading must allege material facts that
establish the elements of the claim. On appeal, we consider only material allegations of
fact, not conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220.)
The SAC simply does not contains material factual allegations sufficient to state a UCL
cause of action.
                                             IV.
                                      DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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