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Arden M. Intengan v. Bac Home Loans Servicing Lp

March 22, 2013


Super. Ct. No. CIV 505111) Intengan v. BAC Home Loans Servicing LP et al., A135782 Trial court: San Mateo County Superior Court Trial judge: Hon. V. Raymond Swope

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


(San Mateo County

Arden M. Intengan (Intengan) appeals from a judgment of dismissal entered after the court sustained the demurrer to her third amended complaint without leave to amend. Essentially, Intengan sought to preclude respondents from foreclosing on her property, contending they lack authority to do so under the relevant deed of trust and notice of default. In this appeal, Intengan argues that the demurrer should not have been sustained because she alleged facts sufficient to state a cause of action, including a claim based on respondents' alleged failure to contact her or attempt with due diligence to contact her before recording the notice of default (Civ. Code, § 2923.5). She also contends the court should have ruled on her motion to strike the demurrer.

We will reverse the judgment. In the published portion of our opinion, we conclude that judicial notice could not be taken of respondents' compliance with Civil Code section 2923.5, and Intengan's allegations that respondents did not comply with the statute were sufficient to state a cause of action for wrongful foreclosure. In the unpublished portion of the opinion, we conclude that Intengan failed to state any other cause of action and the court did not err in denying leave to amend.


On June 26, 2006, Intengan borrowed $696,500 from Countrywide Bank, N.A. (Countrywide). The loan was secured by a deed of trust on Intengan's real property in Daly City. Under the deed of trust, the beneficiary was Mortgage Electronic Registration Systems, Inc. (MERS), the trustee was respondent ReconTrust Company, N.A. (ReconTrust), and BAC Home Loans Servicing LP (BAC) serviced the note. BAC's successor is respondent Bank of America, N.A.

On or about December 28, 2010, MERS assigned its beneficial interest in Intengan's deed of trust to "The Bank of New York Mellon fka The Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee for the Holders of SAMI II Trust 2006-AR7, Mortgage Pass-Through Certificates, Series 2006-AR7" (Bank of New York).

On December 28, 2010, ReconTrust, as agent for the beneficiary under the deed of trust, recorded a notice of Intengan's default on Intengan's loan; the Notice of Default and Election to Sell Under Deed of Trust indicated that she was more than $46,000 in arrears.

Purportedly accompanying the notice of default was a declaration by Samantha Jones, "MLO Loan Servicing Specialist of BAC Home Loans Servicing, LP," in which she states under penalty of perjury that Bank of America "tried with due diligence to contact the borrower in accordance with California Civil Code Section 2923.5." The declaration does not provide any facts to support this conclusion, such as the specifics of any attempt to contact Intengan.

A Notice of Trustee's Sale was recorded by ReconTrust on April 5, 2011, setting a sales date of April 26, 2011. Intengan does not allege that the sale occurred, and the respondents' brief represents that no sale took place and that Intengan has been in possession of the property for nearly two years without making payments on her loan.

A. Original, First Amended, and Second Amended Complaints

On April 25, 2011 - the day before the scheduled foreclosure sale - Intengan filed a complaint against defendants including BAC and ReconTrust, asserting causes of action for declaratory relief, injunctive relief, and an accounting. Before any defendant responded, Intengan filed a first amended complaint and then a second amended complaint.

BAC and RinconTrust filed a demurrer to Intengan's second amended complaint. The court sustained their special demurrer to the first and second causes of action, with leave to amend in order to state a violation of Civil Code section 2923.5. The court also sustained their general demurrer to the third cause of action for an accounting, without leave to amend.

B. Third Amended Complaint

Intengan filed her third amended complaint in January 2012 against BAC, ReconTrust, and others. This time, she purported to assert causes of action for wrongful foreclosure, fraud, intentional misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, slander of title, quiet title, declaratory relief, violation of Business and Professions Code section 17200, unjust enrichment, and injunctive relief seeking to enjoin the pending foreclosure sale.

In February 2012, respondents filed a demurrer to the third amended complaint. Although the demurrer is central to the issues on appeal, neither Intengan nor respondents include the demurrer in the record. The record does contain, however, respondents' request for judicial notice in support of their demurrer, by which they sought judicial notice of the deed of trust on Intengan's property, the notice of default, the assignment of the deed of trust to Bank of New York, and the notice of trustee's sale.

In June 2012, Intengan filed an opposition and "motion to strike" the demurrer, "on the grounds that Defendants Bank of America's Demurrer does not state facts sufficient to constitute a demurrer, is uncertain, is ambiguous, is unintelligible, is irrelevant, is false, contains improper matters and/or is not drawn or filed in conformity with the laws of California." She urged that the demurrer misstated facts and ignored the law, and therefore it should be stricken or denied. The purported motion was not accompanied by a notice of hearing.

The court granted respondents' request for judicial notice and sustained their demurrer to the third amended complaint without leave to amend. A judgment of dismissal was entered on June 15, 2012.

This appeal followed.


As mentioned, Intengan argues that the court erred in sustaining the demurrer and further erred in failing to rule on her motion to strike the demurrer.

A. Demurrer

In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986 (Buller).) We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory. (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.)

In making this determination, we also consider facts of which the trial court properly took judicial notice. (E.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165, fn. 12.) A demurrer may be sustained where judicially noticeable facts render the pleading defective (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6), and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 (Hoffman); see Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (Fontenot) [in sustaining demurrer, court properly took judicial notice of recorded documents that clarified and to some extent contradicted plaintiff's allegations].)

In order to prevail on appeal from an order sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.) We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained. (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 946 (Debro).)

1. Wrongful Foreclosure (First Cause of Action)

The first purported cause of action in Intengan's third amended complaint is for "wrongful foreclosure." Intengan alleges there was "an unauthorized Trustee, document irregularities, improper signatories, and [a] defective Notice of Default;" she further alleges that "due to the chain of assignments, it is now unknown and doubtful who is the current lender/beneficiary/assignee with legal authority and standing regarding the mortgage on [the] subject property." Intengan also claims that BAC and ReconTrust failed to comply with a number of Civil Code sections regulating non-judicial foreclosures, including the requirement of contacting the borrower, or attempting to do so with due diligence, under Civil Code section 2923.5.

a. Failure to tender

As a general rule, a plaintiff may not challenge the propriety of a foreclosure on his or her property without offering to repay what he or she borrowed against the property. (Karlsen v. American Sav. & Loan Ass'n (1971) 15 Cal.App.3d 112, 117 [judgment on the pleadings properly granted where plaintiff attempted to set aside trustee's sale for lack of adequate notice, because "[a] valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust"]; see United States Cold Storage v. Great Western Savings & Loan Assn. (1985) 165 Cal.App.3d 1214, 1222-1223 ["the law is long-established that a trustor or his successor must tender the obligation in full as a prerequisite to [a] challenge of the foreclosure sale"]; FPCI RE-HAB 01 v. E&G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021-1022 [tender rule is based on "the equitable maxim ...

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