California Court of Appeals, Second District, Seventh Division
from an order of the Superior Court of Los Angeles County,
BC591972 Holly E. Kendig, Judge. Affirmed.
Ivanoff, in pro. per., for Plaintiff and Appellant.
Cave, Douglas E. Winter, Andrea M. Hicks, and Richard
Steelman, Jr., for Defendant and Respondent.
PERLUSS, P. J.
Ivanoff appeals the order dismissing with prejudice her
complaint against the Bank of America after the trial court
sustained without leave to amend the Bank's demurrer to
Ivanoff's complaint for violations of the federal Truth
In Lending Act (TILA) (15 U.S.C. § 1601 et seq.) and
California's unfair competition law (UCL) (Bus. &
Prof. Code, § 17200 et seq.), fraudulent
omission/concealment and injunctive relief. Ivanoff argues
the trial court improperly applied the doctrines of res
judicata (claim preclusion) and collateral estoppel (issue
preclusion) based on her prior unsuccessful lawsuit against
the Bank for breach of contract and contends she stated valid
causes of action on the theories alleged in her complaint.
Ivanoff also asserts the court erred in denying her an
opportunity to amend her complaint. We affirm.
AND PROCEDURAL BACKGROUND
Ivanoff's Initial Lawsuit for Breach of Contract
originally sued Bank of America, N.A., successor to BAC Home
Loans Servicing LP and Countrywide Bank, FSB, as well as
ReconTrust Company, N.A., and Mortgage Electronic
Registration Systems, Inc. (MERS), in July 2013, asserting
causes of action for breach of contract, temporary
restraining order and preliminary injunction, violation of
the UCL, specific performance and equitable rescission.
complaint Ivanoff alleged she was the owner of a condominium
in West Los Angeles, which she had purchased in 2004 with a
loan secured by a deed of trust in favor of Washington Mutual
Bank. Ivanoff refinanced her loan in 2006-2007 with
Countrywide; the refinancing closed in December 2007.
Contrary to representations made to her by Countrywide
representatives, a penalty and fees were added to the loan
balance, increasing the amount she borrowed from $636, 000 to
$711, 000. Those additional undisclosed amounts, included in
breach of the parties' agreement, made the loan
unaffordable; and Ivanoff defaulted.
October 2010 Ivanoff sought a modification of the loan with
the Bank, which had acquired Countrywide. Ivanoff alleged the
Bank agreed to modify the loan, following successful
completion of a trial loan modification agreement, with a new
principal balance of $847.989.90, a new interest rate of 2
percent, an effective date of February 1, 2011 and a maturity
date of January 1, 2051. Monthly loan payments were to be $2,
567.93. However, according to Ivanoff, the Bank breached
their loan modification agreement by adding an additional sum
for required “escrow option insurance, ” which
increased the monthly payment to $3, 328.65.
defendants demurred on numerous grounds. The trial court
sustained the demurrer, in part, because Ivanoff had not
alleged whether the agreements at issue were oral, written or
implied, had not attached copies of any of the agreements and
had not alleged the material terms of the agreements with the
requisite detail. The court also found that certain of her
claims, as pleaded, were barred by the statute of limitations
or the statute of frauds.
leave to amend, Ivanoff filed a first amended complaint that
was virtually identical to the original complaint and that,
once again, did not attach any of the alleged agreements or
describe their terms in any greater detail. The trial court
sustained the defendants' demurrer to the first amended
complaint without leave to amend, observing, “the
opposition fails to address about eighty percent of the
issues raised (e.g., Statute of Limitations and Statute of
Frauds), and fails to cite any governing law on point (e.g.,
tender, contract and injunction).” The court then
explained that “‘[c]ontentions are waived when a
party fails to support them with reasoned argument and
citations to authority.'”
Court of Appeal affirmed. (Ivanoff v. Bank of
America (May 13, 2015, B256462 [nonpub. opn.].) The
court stated Ivanoff's brief was “blatantly
deficient, ” containing no citation to the record and
essentially no factual or legal analysis. The court then
ruled, “Since Ivanoff has not demonstrated that the
trial court erred, we are in no position to reverse its
order.” (Ibid.) In addition, because Ivanoff
had made no attempt to demonstrate how she could amend her
complaint to plead a viable claim, the Court of Appeal
concluded leave to amend was not warranted.
The Current TILA/Fraud Lawsuit
August 20, 2015, four weeks after the Supreme Court denied
Ivanoff's petition for review in the initial lawsuit,
Ivanoff again sued the Bank, ReconTrust and MERS, as well as
two of the Bank's employees, in a complaint for violation
of TILA, the UCL, fraudulent omission/concealment and
injunctive relief. The general allegations of the complaint
were identical to those in the prior lawsuit relating to the
December 2007 refinancing and February 1, 2011 loan
modification agreements. (As in her prior lawsuit, Ivanoff
did not attach copies of the refinancing or loan modification
than alleging breach of contract, however, Ivanoff's new
lawsuit alleged the Bank violated TILA by failing to make
required disclosures with respect to the “escrow option
insurance, ” which was surreptitiously added to
Ivanoff's monthly loan payment obligation. Ivanoff
additionally alleged the Bank's violation of TILA was an
unlawful business practice within the meaning of the UCL and
the failure of its employees to disclose the loan
modification agreement would include an additional monthly
sum of $760.72 for “escrow option insurance”
constituted fraudulent concealment. Had she known the true
facts, Ivanoff alleged, she would have considered other
financing options. Ivanoff also sought injunctive relief
preventing a sale at foreclosure of her condominium.
Bank demurred, contending Ivanoff's complaint was barred
as a matter of law by the doctrines of claim preclusion and
issue preclusion. The Bank argued Ivanoff was asserting the
same primary right in both actions (claim preclusion) and the
issues alleged had been actually litigated and decided
against Ivanoff on the merits (issue preclusion). The Bank
also argued in support of its demurrer that the claims for
violation of TILA and fraud were time-barred; Ivanoff lacked
standing to assert a UCL claim because she failed to allege
she had lost money or property as a result of the Bank's
actions; and the claim for an injunction against foreclosure
was improper because injunctive relief is a remedy, not a
cause of action. In her opposition to the demurrer Ivanoff
emphasized she had not pleaded either violation of TILA or
fraud in her prior lawsuit.
trial court sustained the demurrer without leave to amend.
The court ruled Ivanoff's claims were barred by res
judicata, explaining “[t]he ‘primary right'
of Plaintiff in both actions-the right to be free from
increased loan payments that were not agreed to-is the same,
which means the present proceeding is on the same
‘cause of action' as the prior proceeding.”
The court also ruled the claims were barred by collateral
estoppel because her four causes of action “all involve
the same underlying issue-the validity of the increased loan
payments that Plaintiff allegedly did not agree to.”
That issue, the trial court found, had already been
litigated, decided and finalized in the prior litigation.
Finally, the trial court agreed with the Bank that
Ivanoff's claims independently fail: The TILA and fraud
claims were barred by the governing statutes of limitation
(one year and three years, respectively); Ivanoff lacked
standing to bring a UCL claim; and the cause of action for
injunctive relief was not a valid cause of action.
order sustaining the demurrer and judgment of dismissal was
filed March 3, 2016. Notice of entry was served on March 10,