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Schep v. Capital One, N.A.

California Court of Appeals, Second District, Second Division

June 26, 2017

RAYMOND A. SCHEP, Plaintiff and Appellant,
v.
CAPITAL ONE, N.A., Defendant and Respondent.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC533555 Maureen Duffy-Lewis, Judge. Affirmed.

          George E. Omoko for Plaintiff and Appellant.

          Doll Amir Eley, Hunter R. Eley and Amy I. Borland for Defendant and Respondent.

          HOFFSTADT, J.

         Are a trustee's acts in recording a notice of default, a notice of sale, and a trustee's deed upon sale in the course of a nonjudicial foreclosure privileged under Civil Code section 47?[1] We conclude that they are and that a plaintiff does not state a cause of action for slander of title based on the recording of those documents. Accordingly, we affirm the trial court's order sustaining a demurrer to plaintiff's slander of title claim without leave to amend.

         FACTS AND PROCEDURAL BACKGROUND

         I. Factual Background

         A. Original loan and deed of trust

         In April 2007, Raymond A. Schep (plaintiff) borrowed $910, 000 from a mortgage company secured by a deed of trust to a home in Beverly Hills (the property). The deed of trust designated Chevy Chase Bank, F.S.B. (Chevy Chase) the trustee and Mortgage Electronic Registration Systems, Inc. (MERS) the beneficiary. In July 2009, Chevy Chase merged with defendant Capital One, N.A. (Capital One), and Capital One became the new trustee to the deed of trust.

          B. Arrears and foreclosure

         By October 2009, plaintiff was $29, 206.66 behind on his loan payments. In the fall of 2009, MERS named defendant T.D. Service Company (T.D. Service) as the new trustee on the deed of trust, and T.D. Service recorded a “Notice of Default and Election to Sell Under Deed of Trust” (Notice of Default). In April 2010, T.D. Service recorded a Notice of Trustee's Sale. In January 2011, Capital One purchased the property at the foreclosure auction, and T.D. Service recorded the Trustee's Deed Upon Sale.

         C. Wild deed

         In February 2010, after the Notice of Default was recorded and before the Notice of Trustee's Sale was recorded, Timothy Fitzgerald (Fitzgerald) of U.S. Banc Trustee TTE, recorded a “Substitution of Trustee and Full Reconveyance.” In this document, Fitzgerald inaccurately represented that he was the “Original Beneficiary” of the April 2007 deed of trust and purported to “substitute ...


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