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Charles V. Stebley et al v. Litton Loan Servicing

November 30, 2011

CHARLES V. STEBLEY ET AL., PLAINTIFFS AND APPELLANTS,
v.
LITTON LOAN SERVICING, LLP ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. PC20090511)

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

Stebley v. Litton Loan Servicing

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs Charles and Gina Stebley timely appeal from judgments of dismissal in favor of defendants Litton Loan Servicing LLP, Mortgage Electronic Registration Systems, Inc., Bank of New York Mellon, and WMC Mortgage, LLC, after the trial court sustained demurrers to complaints seeking damages and other relief for the purportedly wrongful foreclosure of plaintiffs' residence. Because plaintiffs have neither stated a cause of action, nor shown they can amend to state a cause of action, we shall affirm.

BACKGROUND

As defendants point out, the plaintiffs have failed in their duty, as the appellants, to provide an adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575), and to make coherent legal arguments (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3). Although plaintiffs appear in this court without counsel, that does not entitle them to special treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.)*fn1

But the ultimate issue is whether plaintiffs have stated a cause of action, or have shown how they could amend to state a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734 (Das); see Code Civ. Proc., § 472c.) From our review of the record as well as the briefing, and clarification provided by oral argument, we find two coherent legal issues. They are: (1) whether the alleged or proposed facts would state a cause of action based on violations of Civil Code section 2923.5, and (2) whether those facts would support a violation of Welfare and Institutions Code section 15610.30 (elder or dependent adult abuse). We deem all other claims to be abandoned. (See Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482.)

No purpose would be served by detailing the procedural history leading to this appeal. It suffices to say the trial court sustained demurrers to a second amended complaint, and declined to allow leave to file a third amended complaint, a document not in the appellate record.*fn2

The defendants on appeal are entities connected to a residential loan plaintiffs obtained, and all are alleged to be jointly responsible. For purposes of this appeal it is not necessary to distinguish among them. (See Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 215 & fn. 3 (Mabry).)

We presume the facts alleged in the second amended complaint and in the opening brief state the strongest case for plaintiffs. (See Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1286.) Stripped of legal conclusions (see Blank, supra, 39 Cal.3d at p. 318), those facts are as follows: Plaintiffs borrowed on their residence and fell behind in their payments. Defendants purported to consider alternatives to foreclosure, but abruptly foreclosed before informing plaintiffs or their former counsel of any decision on whether to grant a loan modification or otherwise refrain from foreclosing. Plaintiff Gina Stebley is a dependent adult, and defendants had actual notice of her status.

DISCUSSION

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