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Manfred Wallner v. Jpmorgan Chase Bank

December 30, 2010

MANFRED WALLNER, PLAINTIFF AND APPELLANT,
v.
JPMORGAN CHASE BANK, N.A., ET AL., DEFENDANTS AND RESPONDENTS.



Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. (Super. Ct. No. 30-2009-00125352)

The opinion of the court was delivered by: Aronson, J.

Wallner v. JPMorgan Chase Bank

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Plaintiff Manfred Wallner appeals from the dismissal of his second amended complaint after the trial court sustained defendant JPMorgan Chase Bank, N.A.'s (JPMorgan) demurrer without leave to amend. The second amended complaint alleges defendant Plaza Home Mortgage, Inc. (Plaza) fraudulently induced Wallner to refinance his home mortgage. Wallner sought declaratory and injunctive relief to prevent foreclosure on his home, and restitution to recover all interest he paid on the loan. We affirm the judgment of dismissal.

I

FACTS AND PROCEDURAL HISTORY

This appeal follows a trial court ruling sustaining a demurrer without leave to amend. As such, we assume the truth of all facts properly pleaded in the second amended complaint (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 (Evans)), and accept as true all facts that may be implied or inferred from those express allegations (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3). We do not assume the truth of contentions, deductions, or conclusions of fact or law. (Evans, supra, 38 Cal.4th at p. 6.)

According to the operative complaint, Wallner owns a home in Anaheim, California. In May 2006, he received a "cold call" from an agent of Plaza offering to refinance his home mortgage. Wallner explained he recently refinanced with another lender, obtaining a 30-year loan for $650,000 at an interest rate of 5.5 percent. Wallner doubted his home could support a larger loan.

Plaza's agent said he knew all about the other loan and could offer much better terms. Specifically, the agent offered Wallner a 40-year loan for $760,000 at an interest rate of 1.75 percent, which would allow Wallner to "take cash out" and still have lower monthly payments. When Wallner revealed his only income was his Social Security payments and capital gains on stocks, Plaza's agent told him not to worry because the agent would fill out the loan origination documents for Wallner with the appropriate information. The agent not only filled out the documents for Wallner, he also signed them on Wallner's behalf.

To induce Wallner to accept the loan offer, Plaza's agent knowingly made the following false misrepresentations: (1) Wallner's home had sufficient value to support a $760,000 loan; (2) Wallner, who was 78 years old at the time, would live long enough to pay off the 40-year loan; and (3) Wallner would be able to pay back the loan's principal and interest with his Social Security payments and capital gains.

Plaza knew Wallner would be unable to repay the loan, but this did not concern Plaza because it intended to quickly sell the loan rather than collect Wallner's payments. Specifically, Plaza intended to package Wallner's mortgage with other similar mortgages ...


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