California Court of Appeals, Second District, Second Division
RAYMOND A. SCHEP, Plaintiff and Appellant,
CAPITAL ONE, N.A., Defendant and Respondent.
from a judgment of the Superior Court of Los Angeles County,
No. BC533555 Maureen Duffy-Lewis, Judge. Affirmed.
E. Omoko for Plaintiff and Appellant.
Amir Eley, Hunter R. Eley and Amy I. Borland for Defendant
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? 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
AND PROCEDURAL BACKGROUND
Original loan and deed of trust
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.
Arrears and foreclosure
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.
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 ...