Filed 1/12/16 Chavet v. U.S. Bank CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


SELAH JOI CHAVET,                                                    B257277

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC505161)
         v.

U.S. BANK, N.A., as Trustee, etc., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Malcolm H. Mackey, Judge. Affirmed.
         Miltner & Menck, William L. Miltner, Robert C. Harvey for Plaintiff and
Appellant.
         Houser & Allison, Eric D. Houser, Marc W. Thomas, Joshua R. Mino for
Defendant and Respondent U.S. Bank N.A., as Trustee, etc.
         Fidelity National Law Group, J. Walter Gussner for Defendant and Respondent
Commonwealth Land Title Insurance Company.
                  ___________________________________________________
       Plaintiff Selah Joi Chavet defaulted on a loan secured by a deed of trust. She sued
the lender and others for damages and equitable relief, but filed no opposition to their
demurrers. The trial court dismissed the case. On appeal, plaintiff fails to show how she
could amend her pleading to state a claim. We affirm.
                                     ALLEGATIONS1
       Plaintiff purchased real property in Pasadena in 1992 (the Property). In 2006, she
refinanced with Argent Mortgage Company (Argent) and obtained a new loan for
$740,000 secured by a first trust deed on the Property. Plaintiff believed that when she
refinanced, three existing trust deeds on the Property (for $64,000, $119,800 and
$192,195) would be extinguished by the close of escrow. An exhibit to the FAC shows
that plaintiff authorized repayment of the largest of the three loans, all of which were
owed to an individual named James Jimenez.
       Plaintiff had trouble making payments, and in December 2008 obtained a loan
modification through Litton Loan Servicing (Litton). A year later, plaintiff sought a
second modification. Her monthly payments were reduced from $5,793 to $4,272.
       In January 2009, Argent assigned its interest in plaintiff’s loan to defendant U.S.
Bank to hold for an entity called “CMLTI Asset Backed Pass-Through Certificates,” a
securitized trust formed under Delaware law in 2007. One week later, U.S. Bank
recorded a substitution of trustee, naming NDEx West, L.L.C. Plaintiff claims that both
of these transfers were void.
       In July 2010, a notice of default was recorded. As of November 2011, plaintiff
owed $875,467 on her loan. A notice of trustee’s sale was recorded in June 2012.
       Plaintiff declared bankruptcy in October 2012, postponing the sale. Her first
bankruptcy petition was dismissed. In April 2013, plaintiff filed a second bankruptcy
petition, to stop the trustee’s sale. Her second petition was dismissed in August 2013.
Plaintiff alleges that “the matter has not been re-set for trustees sale.”



1      The allegations are taken from plaintiff’s first amended complaint (FAC).


                                               2
                               PROCEDURAL HISTORY
       The record on appeal does not contain the complaint filed in April 2013. When
defendants demurred, plaintiff filed a FAC against defendants U.S. Bank, Litton, Ocwen
Loan Servicing (Ocwen), and Commonwealth Land Title Insurance Company
(Commonwealth), among others, and the demurrer was taken off calendar. Plaintiff
admits that “the FAC did not differ significantly from the original complaint.”
       In the FAC, plaintiff seeks declaratory relief based on the allegedly invalid
transfers involving her loan, and damages for breach of contract because the three
outstanding liens on the Property were not extinguished when plaintiff refinanced in
2006. Plaintiff claims that defendants were negligent because their conduct did not meet
the standard of care. Although the Property was not sold, plaintiff makes a claim of
wrongful foreclosure and seeks to cancel instruments. She asserts a claim of unfair
business practices, and seeks injunctive relief.
       Defendants demurred to the FAC. Absent any opposition from plaintiff, the trial
court inferred that the demurrer was meritorious. It sustained the demurrer without leave
to amend and dismissed the action with prejudice. This appeal was filed 59 days later.
                                      DISCUSSION
       Plaintiff makes no argument in support of the operative pleading, a concession that
the trial court properly sustained demurrers to the FAC. She seeks to allege new facts
and new causes of action; in short, a “mulligan” on her poorly conceived lawsuit.
       Plaintiff amended her pleading in 2013, when defendants demurred to the original
complaint. She did not seek leave to amend from the trial court when defendants
demurred to the FAC. In fact, she did not oppose the demurrers at all. Plaintiff blames
her former attorney (who substituted out of the case) for failing to inform her of the
demurrers. The inadequate appellate record does not bear this out, as it contains only the
FAC and the court’s ruling. She did not ask the trial court to vacate the dismissal owing
to mistake, inadvertence or neglect arising from her unawareness of the pending
demurrers, yet she invokes Code of Civil Procedure section 473 on appeal. By appealing
the dismissal—instead of seeking relief from the trial court for excusable neglect—

                                              3
plaintiff gives the unfavorable impression of dragging out her case to avoid foreclosure,
akin to her fruitless attempts to use bankruptcy to avoid foreclosure.
       A plaintiff may request an amendment for the first time on appeal, even without a
request to amend below. (Code Civ. Proc., § 472c, subd (a); City of Stockton v. Superior
Court (2007) 42 Cal.4th 730, 746.) The burden of proving a reasonable possibility that
defects can be cured “is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) Leave to amend should not be granted if it would be an exercise in futility.
(Long v. Century Indemnity Co. (2008) 163 Cal.App.4th 1460, 1467-1468.)
       Plaintiff proposes to allege in 2006, Argent offered her a loan, then, at the last
minute, presented her with documents for a loan with a higher interest rate and higher
monthly payments. Plaintiff “was manipulated into entering” the loan transaction.
During negotiations, plaintiff discovered that two paid-off loans secured by trust deeds on
the Property remained as encumbrances. Commonwealth promised that it would have the
liens removed before the close of escrow. Plaintiff believed that the matter was settled.
       In 2008, plaintiff obtained a modification through loan servicer Litton. Financial
difficulties in 2010 caused plaintiff to seek yet another loan. At the time, she learned that
the three junior liens held by James Jimenez (for $64,000, $119,800 and $192,195) had
not been removed from her title. Plaintiff was unable to obtain loan commitments or sell
the Property, due to all the encumbrances.
       Litton recorded a notice of default in July 2010, and represented that it froze all
activity on the loan while they were attempting to clear up title. Plaintiff did nothing
because she could not refinance until the title problems were resolved. In November
2011, plaintiff was informed by the new loan servicer, Ocwen, of her overdue
indebtedness, which included payments accruing while the loan was supposedly frozen.
       The three junior trust deeds were finally removed on December 29, 2011, when
the beneficiary executed requests for reconveyance. Plaintiff was unaware of the
reconveyances, so she failed to refinance her loan or sell the Property. A notice of
trustee’s sale was recorded in June 2012, which prompted plaintiff to seek modifications



                                              4
from the lender, without success. Plaintiff declared bankruptcy twice to stop the trustee’s
sale. Both petitions were dismissed. Plaintiff filed this lawsuit in April 2013.
       Plaintiff contends that she can state claims for fraud or misrepresentation against
Commonwealth, for its promise to “remove the two junior trust deeds from the record
title.” As we shall see, plaintiff could not reasonably reply upon such a promise, because
none of the defendants had the power to “remove” existing third party liens.
       A trust deed beneficiary is obliged to execute and deliver to the trustee “the
original note, deed of trust, request for a full reconveyance, and other documents as may
be necessary to reconvey, or cause to be reconveyed, the deed of trust,” within 30 days
after the debt is satisfied; the trustee, in turn, is obliged to execute and record the
reconveyance within 21 days. (Civ. Code, § 2941, subd. (b)(1).) If the trustee fails to
record the reconveyance, the debtor may make a written request to the beneficiary to do
so. (Civ. Code, § 2941, subd. (b)(2).) As a last resort, the title insurer may prepare and
record a release of the obligation. (Civ. Code, § 2941, subd. (b)(3).)
       None of the defendants in this case are beneficiaries, trustees, or title insurers of
the junior liens. The beneficiary was James Jimenez, as alleged in the FAC. Plaintiff
does not identify the trustee in her brief, but documents attached to the FAC reveal that
the trustee was First American Title Company.
       Plaintiff did not avail herself of her statutory remedies for clearing title. The
objects of her ire should have been the trust deed beneficiary James Jimenez (or his
estate) and First American, who held plaintiff’s notes and trust deeds. Plaintiff has not
shown that defendants—who are strangers to the junior liens—had any right to force
Jimenez and First American to reconvey trust deeds signed by plaintiff. Defendants were
not parties to plaintiff’s prior financial transactions and plaintiff does not claim that the
problem-causing instruments were in defendants’ possession.
       The FAC indicates that defendants assisted plaintiff in preparing “necessary
paperwork” to obtain reconveyances. If Jimenez and First American refused to sign or
record the paperwork, then plaintiff’s dispute lies with them. Plaintiff chose to sit on her
rights for years, but now blames defendants for the failings of third parties. Plaintiff’s

                                               5
claims of fraud or misrepresentation fail as a matter of law. Plantiff could not reasonably
rely on defendants to execute reconveyances on third party liens.
       Plaintiff wishes to allege that when the notice of default was recorded in July
2010, defendants represented that the loan was frozen. The notice of default clearly
states that plaintiff must pay all amounts in default, unless plaintiff and the trust deed
beneficiary “mutually agree in writing” to provide additional time for payment.
Plaintiff’s promissory note states, “Oral agreements, promises [to] forbear from enforcing
repayment of a debt, including promises to extend, modify, renew or waive such debt, are
not enforceable. . . . . Any subsequent agreement [ ] regarding this Note or the instrument
which secures this Note, must be in a signed writing to be legally enforceable.”
       A lender’s agreement to forbear comes within the statute of frauds and must be in
writing: a gratuitous oral promise is not enforceable. (Raedeke v. Gibraltar Sav. & Loan
Assn. (1974) 10 Cal.3d 665, 673; Karlsen v. American Sav. & Loan Assn. (1971) 15
Cal.App.3d 112, 120-121.) Plaintiff does not allege that defendants signed a written
agreement to defer her obligations, or that she paid consideration to stop principal and
interest from accruing. Her claim of a gratuitous oral promise cannot succeed.
       Plaintiff asserts that Ocwen negligently failed to advise her that reconveyances
were recorded on the junior liens. As previously discussed, it was plaintiff’s duty to
exercise her right under Civil Code section 2941 to force the trust deed beneficiary,
Jimenez, or the trustee, First American, to record the reconveyance paperwork.2
       Plaintiff contracted for a loan that exceeded her means, and defaulted on it. She
has apparently lived at the Property for over five years without paying her mortgage,
despite ample opportunity over the years to cure the default. Plaintiff’s desire to continue



2      Plaintiff posits more possible claims—for fraudulent business practices,
interference with contract, breach of the implied covenant of good faith and fair dealing,
promissory estoppel—without any citation of legal authority. Points made without
adequate legal argument or citation to authorities require no review. (Leader v. Health
Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.)


                                              6
living on the Property for free must come to an end, as she cannot state a claim for
wrongdoing against defendants.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




                                             7
