Filed 4/23/14 Poulson v. Bank of America CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RONALD POULSON et al.,
Plaintiffs and Appellants, E056220
v. (Super.Ct.No. RIC1201008)
BANK OF AMERICA et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge
and Paulette Durand-Barkley, Temporary Judge. (Pursuant to Cal. Const., art. VI,
§ 21.) Affirmed in part; reversed in part with directions.
Ronald Poulson and Dulcisima Poulson, in pro. per., for Plaintiffs and
Appellants.
Bryan Cave, Christopher L. Dueringer and R. Andrew Chereck for Defendants
and Respondents Bank of America, N.A., Mortgage Electronic Registration Systems,
Inc., and EMC Mortgage LLC.
1 Barrett Daffin Frappier Treder & Weiss, Edward A. Treder and Thomas K.
Agawa for Defendant and Respondent NDeX West, LLC.
Ronald Poulson and Dulcisima Poulson (collectively “the Poulsons”) sued Bank
of America, N.A. (Bank of America); Mortgage Electronic Registration Systems, Inc.
(MERS); EMC Mortgage LLC (EMC); and NDeX West, LLC (NDeX)1 (collectively
“defendants”) for (1) wrongful foreclosure, (2) intentional fraud, and (3) breach of
contract. The trial court, specifically Judge Daniel A. Ottolia, sustained defendants’
demurrer without leave to amend. Approximately two months later, the trial court,
specifically, Commissioner Paulette Durand Barkley, as a result of the demurrer being
sustained, entered a judgment of dismissal against the Poulsons, ordering the Poulsons
take nothing against any of the defendants and awarding defendants their costs.
The Poulsons contend (1) the trial court erred by sustaining the demurrer, and
(2) the dismissal was erroneous because the Poulsons did not stipulate to a
commissioner presiding over their case. We reverse the dismissal with directions, but
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from the Poulsons’ complaint. The
property at issue is a single family residence in San Jacinto (the property). In December
2006, the Poulsons purchased the property with a mortgage in the sum of $304,000.
1 NDeX is an agent for MERS.
2 MERS was listed as a beneficiary on the mortgage. After the sale closed, EMC
Mortgage Corp.2 relinquished its interest in the loan. Without the Poulsons’ knowledge,
their mortgage was securitized and transferred. NDeX filed a notice of default and
election to sell against the property. A trustee’s sale was held on September 4, 2010,
and the property was transferred to Bank of America.
The Poulsons mix a variety of issues into the facts, such as: (1) the crucial terms
of the mortgage were not explained to the Poulsons; (2) the mortgage documents were
not provided in Dulcisima Poulson’s native language of Tagalog; (3) the loan was fully
paid off when it was securitized, i.e., the people who purchased the loan paid the loan in
full; and (4) MERS cannot transfer an interest in property since it does not hold an
interest in the property.
The first cause of action was for wrongful foreclosure against all defendants.
The Poulsons alleged Bank of America did not possess the mortgage note and therefore
could not demand payment from the Poulsons, and ergo could not foreclose on the
property. Also within the first cause of action, the Poulsons alleged defendants
breached a contract by (1) refusing to accept payment, (2) improperly processing
payments, and (3) performing improper accounting. The Poulsons further asserted the
foregoing three contract problems caused defendants to make inaccurate reports to third
parties, which we infer are credit reporting agencies. The Poulsons also faulted
2 The party on appeal is EMC Mortgage LLC, as opposed to EMC Mortgage Corp.
3 defendants for disclosing personal and confidential financial information to third
parties.
The second cause of action was for intentional fraud against all defendants. The
Poulsons alleged NDeX recorded a fraudulent notice of default and fraudulent notice of
trustee’s sale because “[d]efendants had no standing to file said documents” and “were
[n]ot [t]he [h]older [i]n [d]ue [c]ourse.” Thus, the Poulsons asserted defendants
fraudulently represented they had the authority to foreclose upon the property, when
they did not have such authority.
The third cause of action was for breach of contract. The Poulsons alleged
defendants were obligated to place the “property back into the [Bear Sterns] trust.” The
Poulsons alleged defendants’ failure to move the property into the trust was a breach of
contract. The Poulsons further alleged defendants were not the “[h]older [i]n [d]ue
[c]ourse” and therefore the contract was void, and faulted defendants for not giving the
Poulsons “genuine authentic documents,” e.g., the original loan documents. The
Poulsons asserted defendants failed to comply with provisions of the Uniform
Commercial Code when securitizing the mortgage. Also within the breach of contract
cause of action, the Poulsons asserted defendants committed fraud and therefore the
Poulsons were “entitled to punitive damages three times the amount of said property.”
In the “Prayer for Relief” section, the Poulsons requested: (1) a declaration that
defendants did not have the authority to foreclose upon the property, due to the
securitization of the loan; (2) a declaration that the mortgage contract was void; (3) an
order requiring defendants to return (a) the original loan documents, (b) all the money
4 the Poulsons paid toward their mortgage, and (c) all the money and interest accrued as
part of the securitization of the mortgage; (4) an order requiring defendants to give clear
title of the property to the Poulsons; (5) general and special damages in the amount of
$341,000; (6) punitive damages in the amount of $1,023,000; (7) eight percent interest
on the sum of $341,200 from the date the Poulsons purchased the property; and (8) the
costs of the lawsuit.
B. DEMURRER
Bank of America, MERS, and EMC (collectively “Lenders”) demurred to the
complaint. In the demurrer, Lenders provided their version of the facts: In 2006, the
Poulsons refinanced their $272,000 mortgage, and borrowed nearly $400,000. After
failing to make a mortgage payment for more than one year, the property was foreclosed
and sold at a trustee’s sale; however, the Poulsons continued living in the home without
making payments. The Poulsons filed a lawsuit in federal court, attempting to rescind
their mortgage documents. The complaint was dismissed, and the Poulsons filed an
amended complaint. The amended complaint was dismissed and the Poulsons were
ordered to pursue their state claims in state court, which led to the instant case.
Lenders asserted the Poulsons’ first cause of action failed because it was based
on “[d]iscredited [l]egal [t]heories” and “include[s] pages and pages of vague,
ambiguous and conclusory allegations that appear to have been simply ‘cut and pasted’
from whatever source [the Poulsons] could find.” Lenders identified four legal theories
in the first cause of action: (1) MERS does not have the authority to foreclose,
(2) defendants cannot foreclose because the mortgage and deed of trust were separated
5 when the mortgage was securitized, (3) only the “‘holder in due course’” may foreclose,
and (4) the Poulsons’ mortgage was illegally securitized.
As to the first theory, Lenders asserted California law provides MERS does have
the authority to foreclose upon a property. (Gomes v. Countrywide Home Loans (2011)
192 Cal.App.4th 1149, 1157-1158 (Gomes).) Therefore, Lenders argued the Poulsons’
first theory necessarily failed. In the alternative, Lenders asserted California’s non-
judicial foreclosure law does not provide for the filing of a lawsuit to determine if
MERS has the authority to foreclose. (Id. at p. 1155.) Additionally, Lenders asserted
since the Poulsons alleged MERS was a beneficiary, the Poulsons could not
successfully argue MERS lacked the authority to foreclose or transfer interest in the
deed or note. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
271-272.)
As to the second theory, i.e., the separation of the deed and note theory or “show
me the note” theory, Lenders argued the Poulsons failed to provide any law supporting
the idea that a mortgage could be erased due to separation of the deed and note.
Lenders asserted the theory was rejected in In re Mortgage Electronic Registration
Systems (MERS) Litigation (D. Ariz. 2010) 744 F.Supp.2d 1018, 1026. The “note
splitting” theory was rejected by the Arizona court because the note does not need to be
produced in a non-judicial foreclosure. (Ibid.)
6 In regard to the third theory, i.e. the “holder in due course” theory, Lenders
asserted California’s non-judicial foreclosure scheme does not include a “holder in due
course” requirement, and for that reason, the third theory fails. (Lane v. Vitek Real
Estate Industries Group (E.D. Cal. 2010) 713 F.Supp.2d 1092, 1099.) Alternatively,
Lenders argued California’s non-judicial foreclosure law did not permit lawsuits to
determine if the person initiating the foreclosure is authorized to foreclose (Gomes,
supra, 192 Cal.App.4th at p. 1155), and therefore, the Poulsons’ argument must fail
because it concerns defendants’ authorization to foreclose upon the property.
As to the fourth theory—illegal securitization—Lenders argued the mortgage
was properly secured and traded on the secondary market, because California law
allows the mortgage to follow the note. (Civ. Code, § 2936.) Alternatively, Lenders
asserted that if the securitization was improper, the Poulsons lacked standing to raise the
issue because the Poulsons were not parties to the “Pooling and Servicing Agreement”;
the agreement related to the securitization of the mortgage. Lenders argued there is no
logical or legal basis for the Poulsons being relieved of their mortgage obligations due
to the loan being securitized.
In a final argument related to the first cause of action, Lenders argued the cause
of action failed because the Poulsons failed to allege they had paid the money owing on
their account. Lenders argued the Poulsons’ were more than two years past due on their
mortgage payments. Therefore, Lenders asserted, the trustee’s sale was proper.
7 In regard to the second cause of action (fraud), Lenders argued the Poulsons
failed to plead the cause of action with the requisite specificity. For example, the
Poulsons failed to allege the names of the person or people who allegedly made the
fraudulent representations. Additionally, the Lenders asserted the fraud cause of action
was based upon the discredited legal theories discussed ante. For example, Lenders
argued the Poulsons’ theory that EMC recorded fraudulent notices of default and a
trustee’s sale were based upon the incorrect “holder in due course” argument. Lenders
also faulted the Poulsons for not alleging how they reasonably relied on the supposedly
fraudulent recordings.
Lenders asserted the third cause of action, for breach of contract, must fail
because the Poulsons were not parties to the Pooling and Servicing Agreement
(concerning the securitization of their mortgage), which they asserted was breached.
Lenders argued they could not be held to be in breach of contract by people who were
not parties to the contract. (Tri-Continent International Corp. v. Paris Savings & Loan
Assn. (1993) 12 Cal.App.4th 1354, 1359.) Further, Lenders argued the Poulsons failed
to assert they were third party beneficiaries of the contract, and even if they were third
party beneficiaries, their cause of action was time-barred. The Poulsons asserted
defendants had to move the property into the Bear Stearns Trust by March 2007;
Lenders argued, if that failure to move the property into the trust was a breach, then the
breach occurred over four years before the complaint and therefore was not actionable.
8 C. OPPOSITION TO LENDERS’ DEMURRER
The Poulsons opposed Lenders’ demurrer. In the opposition, the Poulsons
argued they offered to pay the amount owed on their mortgage; therefore, the
foreclosure was wrongful. The Poulsons further asserted they had a right to sue to
determine if defendants were authorized to foreclose on the property, because if
defendants were not authorized then the Poulsons could be placed in “financial double
jeopardy,” if the proper party later tried to foreclose on the property. For example,
Bank of America received the home at the trustee’s sale, but one year after the sale,
Chase Bank sent “two letters regarding change[s] in loan numbers, rate, principal pay-
off and monthly payment amounts.”3 The Poulsons argued that if the court were to
sustain the demurrer, then the court should grant the Poulsons leave to amend because
“leave to amend the complaint is routinely granted.”
D. LENDERS’ REPLY TO THE OPPOSITION
Lenders replied to the Poulsons’ opposition. Lenders again argued the Poulsons
had missed multiple mortgage payments, and therefore the foreclosure was proper.
Lenders also repeated the argument that the Poulsons’ allegations were based upon
incorrect legal theories. Additionally, Lenders asserted the Poulsons failed to explain
how they could amend their complaint to cure its alleged deficiencies.
3 The communication from Chase Bank will be discussed post. It is unclear if it relates to (1) a transfer of the Poulsons’ first mortgage, (2) a transfer of the Poulsons’ second mortgage, or (3) a loan modification.
9 E. THE POULSONS’ RESPONSE
The Poulsons filed a response to the Lenders’ reply. First, the Poulsons asserted
Lenders were improperly ignoring the fact that the Poulsons received a letter from
Chase Bank “giving [them] both the projected mortgage rate and principal pay-off,
along with loan account number change and date by which payments would be due.”
Second, the Poulsons asserted Chase Bank accepted a payment of $566,266, which was
more than the amount owed for the property at the time of the trustee’s sale. The
Poulsons argued the foreclosure was improper, since Chase Bank accepted payment.
Third, the Poulsons asserted they were not relying on incorrect legal theories
because it was factual that (a) defendants used “‘robo-signed’” documents, and (b) they
broke the chain of title. Fourth, the Poulsons argued Bank of America was not a bona
fide purchaser at the trustee’s sale because no one was present representing Bank of
America at the sale. Fifth, the Poulsons requested leave to amend their complaint, if the
demurrer were to be sustained, but did not explain how they would amend the
complaint.
F. HEARING
On March 26, 2012, the trial court held a hearing on Lenders’ demurrer. Judge
Daniel A. Ottolia presided over the hearing. NDeX was also present at the hearing and
explained it had joined in the demurrer. The trial court said its tentative decision was to
sustain the demurrer without leave to amend. The trial court explained the reasons for
its tentative decision. As to the first cause of action, the trial court found the Poulsons
failed to allege they had made their mortgage payments. The trial court cited Gomes to
10 explain why MERS had the authority to foreclose upon the property. (Gomes, supra,
192 Cal.App.4th at p. 1155.) As to the separation of the deed and note, the trial court
explained that theory has been rejected in California. The trial court said there is no
requirement for a lender to “be the holder in due course,” because foreclosure can be
initiated by a trustee, beneficiary, or an authorized agent. The trial court also concluded
the securitization theory had been rejected in California.
As to the second cause of action (fraud), the trial court found the complaint failed
to allege who made the allegedly fraudulent statements, the person’s authority, to whom
the person spoke, and what was said or written. In regard to the third cause of action
(breach), the trial court found the Poulsons lacked standing to sue for breach of the
Pooling and Service Agreement because the Poulsons were not parties to the contract or
third party beneficiaries.
Ronald Poulson (Ronald)4 asserted he could not provide names for the fraud
cause of action because “robo-signers” were behind the fraud. Ronald further asserted
he submitted a “robo-signed” letter bearing the name of “Al Paceo,” so that evidence
provided a name. Ronald then explained Chase Bank had provided him a new loan
number for his mortgage. The trial court explained, “Those are all pre-foreclosure
remedies. Your house has already been foreclosed on, Mr. Poulson.”
4 We use Mr. Poulson’s first name for clarity and ease of reference, since his wife’s last name is also Poulson. No disrespect is intended.
11 Ronald asked the court “what happens” with the $566,225 that was sent to Chase
Bank for the property. The trial court asked Ronald to clarify what documents were
involved with the money given to Chase Bank. Ronald said the document to which he
was referring read, “‘U.S. Bank paid on the order of Chase, $566,225. EFT only for
discharge.’” Ronald explained that an accompanying letter reflected Chase was
“recontracting” with the Poulsons. Ronald said the communications involving Chase
occurred in January 2012.
Lenders said they were unclear if money had actually been transferred to Chase
or if it was an offer to give money to Chase. However, Lenders asserted an offer to
make a payment to Chase in January 2012 would have been a “post-foreclosure matter,”
since the property was foreclosed in September 2010. Ronald responded, “But there is a
letter there. They’ve taken it. I’m protected by California law, by California code.
They have accepted it. It’s a done deal. They own it. So where is my remedy?”
Ronald continued, “I also have superior title on the property. I have a land patent on the
property.”
The court took the matter under submission. On April 18, 2012, Judge Ottolia
issued his ruling. The court sustained defendants’ demurrer without leave to amend.
The ruling does not reflect any of the court’s reasoning. The court ordered defendants
to prepare an order and judgment of dismissal.
Defendants prepared a proposed judgment of dismissal. The name under the
signature line in the proposed judgment was “Hon. Daniel A. Ottolia”; however, when
the judgment was signed, “Hon. Daniel A. Ottolia” was crossed out by hand, a stamp
12 reading “Paulette Durand Barkley” was placed underneath the crossed-out “Hon. Daniel
A. Ottolia” and Commissioner Barkley signed the judgment. The judgment reflected
the Poulsons’ case was dismissed in its entirety.
DISCUSSION
A. SUSTAINING THE DEMURRER
1. CONTENTION
The Poulsons contend the trial court erred by sustaining the demurrer because
(1) MERS does not have standing to bring a lawsuit and therefore cannot foreclose on
property; (2) defendants do not possess the original note; (3) it was apparent the court
had decided the issue prior to the hearing; (4) the Poulsons offered to pay the amount
due on the mortgage; and (5) defendants foreclosed on the property while the Poulsons
were going through the loan modification process.5
2. LAW
“‘A demurrer tests the legal sufficiency of the complaint . . . .’ [Citations.] On
appeal from a dismissal after an order sustaining a demurrer, we review the order de
novo, exercising our independent judgment about whether the complaint states a cause
of action as a matter of law. [Citations.] We give the complaint a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.] We
5 The Poulsons are self-represented litigants. Their appellants’ opening brief lacks point headings, and their legal arguments are difficult to decipher. We have inferred the foregoing two points are the main issues on appeal, although this is somewhat of a guess on our part due to the lack of clear legal arguments in the Poulsons’ briefs.
13 deem to be true all material facts properly pled. [Citation.] We must also accept as true
those facts that may be implied or inferred from those expressly alleged. [Citation.] If
no liability exists as a matter of law, we must affirm that part of the judgment sustaining
the demurrer. [Citation.]” (Trader Sports, Inc. v. City of San Leandro (2001) 93
Cal.App.4th 37, 43.)
3. MERS STANDING
The Poulsons assert MERS does not have standing to bring a lawsuit in court,
and therefore, does not have authority to initiate a non-judicial foreclosure. The
Poulsons’ reasoning fails because they are asking this court to apply judicial foreclosure
law, when California law provides for non-judicial foreclosure.
California has a comprehensive non-judicial foreclosure scheme, which is set
forth in Civil Code sections 2924 et seq. (Gomes, supra, 192 Cal.App.4th at p. 1154.)
The Poulsons assert since MERS lacks standing to bring a lawsuit, as set forth in
Mortgage Electronic Registration Systems, Inc. v. Saunders (Me. 2010) 2 A.3d 289, 297
(Saunders), it cannot initiate a foreclosure proceeding. This reasoning is flawed
because Saunders is a Maine case and Maine is a judicial foreclosure state. (Id. at pp.
296-297.)
The relevant portion of Saunders provides, “In other jurisdictions utilizing non-
judicial foreclosure, MERS has been able to institute foreclosure proceedings based on
its designation in the mortgage as the ‘mortgagee of record.’ [Citations.] These cases
are inapposite because non-judicial foreclosures do not invoke the jurisdiction of the
courts. Non-judicial foreclosures proceed wholly outside of the judiciary, typically
14 utilizing local law enforcement to evict a mortgagor and gain possession of the
mortgaged property. [¶] Here, MERS sought to foreclose on the Saunderses’ mortgage
by filing a lawsuit, and like any other plaintiff filing suit within our courts, must prove
its standing to sue. [Citation.]” (Saunders, supra, 2 A.3d at p. 296.)
As set forth ante, California is a non-judicial foreclosure state. Therefore, the
fact that MERS may not have standing to bring a lawsuit in court is not relevant to
whether MERS has the authority to initiate foreclosure proceedings in California. It is
only relevant in judicial foreclosure proceedings. Accordingly, we conclude the trial
court did not err.
4. ORIGINAL NOTE
The Poulsons contend the trial court erred by sustaining the demurrer because
defendants do not possess the original note, i.e., defendants are not holders of the note.
California law “does not mandate physical possession of the underlying promissory note
in order” for a person or entity to initiate a foreclosure. (Debrunner v. Deutsche Bank
Nat. Trust Co. (2012) 204 Cal.App.4th 433, 440.) As explained in Debrunner, there is
“nothing in the applicable statutes that precludes foreclosure when the foreclosing party
does not possess the original promissory note.” (Ibid.) “Notably [Civil Code] section
2924, subdivision (a)(1), permits a notice of default to be filed by the ‘trustee,
mortgagee, or beneficiary, or any of their authorized agents.’ The provision does not
mandate physical possession of the underlying promissory note in order for this
initiation of foreclosure to be valid.” (Ibid.) Since the law does not require possession
15 of the underlying promissory note, we conclude the trial court did not err by sustaining
the demurrer.
5. RULING
The Poulsons assert the trial court had already determined its ruling prior to the
hearing due to (1) the court giving a tentative ruling in favor of defendants, and (2) the
court only being attentive to defendants’ arguments, within this assertion the Poulsons
contend the court ignored their evidence.
Tentative rulings only “‘indicate the way the judge is prepared to decide the
matter based on the information before him or her.’” (Brown, Winfield & Canzoneri,
Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1245.) “Courts are not bound by their
tentative rulings. [Citation.]” (Jespersen v. Zubiate-Beauchamp (2003) 114
Cal.App.4th 624, 633.)
The trial court gave a tentative ruling at the beginning of the hearing. The court
said the ruling was “tentative” and, after giving the tentative ruling, asked Ronald if he
wanted to provide argument. Ronald provided argument. The court explained the
arguments were not persuasive because they related to pre-foreclosure remedies.
Ronald asked the court, “So now what happens to the instrument that was sent to
them?” The trial court tried to clarify exactly what instrument Ronald was discussing
by speaking with both Ronald and defense counsel. Ronald repeatedly asserted the
instrument is “there.” The court twice asked Ronald to simply read the name of the
document. After Ronald provided the title, “‘U.S. Bank paid on the order of Chase,
$566,225. EFT only for discharge,’” defense counsel explained why the court should
16 not rely on the document: (1) it was unclear if money was actually transferred, and (2)
if there were a transfer, it occurred after the foreclosure.
Ronald then offered more argument explaining the debt had been discharged.
NDeX explained that it joined in the demurrer, and then Ronald offered more argument.
Ronald explained that he had “superior title on the property.” The court then took the
matter under submission. The hearing took place on March 26, 2012, and the ruling on
the demurrer was dated April 17 and filed April 18.
There is nothing indicating the trial court was bound to its tentative ruling. It
appears the trial court gave a tentative ruling only for the purpose of directing the
Poulsons where to focus their arguments. Since the trial court (a) gave the Poulsons
time to argue, and (b) tried, with concerted effort, to understand the Poulsons’
“instrument” argument, it does not appear the trial court (1) ignored the Poulsons’
evidence, (2) only considered defendants’ arguments, and (3) had decided the issue
prior to the hearing. Accordingly, we conclude the trial court did not err.
6. DISCHARGED DEBT
a) Documents6
In December 2006, the Poulsons executed a note for a $304,000 mortgage with
an adjustable interest rate. In 2006, the interest rate on the loan was 7.13 percent. Also
6 Some of the information provided in this section is taken from documents included in requests for judicial notice, filed at the trial court and included in the record on appeal. It does not appear the trial court ever ruled on the requests. We use the documents in the record to provide context for the Poulsons’ arguments, because their arguments are vague and disjointed.
17 in December 2006, the Poulsons executed a note for a second mortgage in the amount of
$76,000 with an interest rate of 12.5 percent. The bank involved in both mortgages was
Liberty American Mortgage Corp.
A Notice of Default and Election to Sell Under the Deed of Trust was recorded
against the property in September 2009. The notice provided that a payment to stop the
foreclosure proceedings needed to be sent to EMC Mortgage Corporation, care of
NDeX. The principle balance on the loan was $304,000. The notice reflected the
Poulsons were approximately $20,000 behind in their payments. A Notice of Trustee’s
Sale, dated August 13, 2010, reflected the total amount owed, including the unpaid
balance and costs of the sale was approximately $348,697.95. The notice reflected the
property would be sold on September 7, 2010. A Trustee’s Deed Upon Sale was
recorded on September 16, 2010, reflecting the property was conveyed to Bank of
America.7
On December 12, 2011, Chase Bank sent a letter to the Poulsons informing them
that the interest rate for their adjustable rate mortgage had changed from 7.35 percent to
7.75 percent and the principal balance on the loan was $296,897.89.
7 It appears from the record that the mortgage was securitized into Bear Stearns Asset Backed Securities I LLC. LaSalle Bank was the trustee for the certificate holders of the Bear Stearns securities. LaSalle Bank was acquired by Bank of America, thus bringing Bank of American into the trustee’s sale.
18 In January 26, 2012, the Poulsons sent Chase Bank (1) a letter, and (2) a check
from U.S. Bank.8 The check was in the amount of $566,225. In the letter, the Poulsons
asserted the check was to be used to discharge their debt. However, the Poulsons also
wrote that the check was “not to be used for deposit,” it was only to “be processed
through Electronic Funds Transfer (EFT).”
On March 5, 2012, the Poulsons sent a second letter to Chase Bank. The second
letter reflected Chase had failed to respond to the January 2012 letter and check, and
therefore, the Poulsons considered their debt with Chase to be discharged.
b) Analysis
The Poulsons contend the trial court erred by sustaining the demurrer because the
Poulsons offered to pay the amount due on the mortgage.
The general rule is that a “debtor has no postsale right of redemption.
[Citation.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1236.) Under
this rule, the fact that the Paulsons offered money to Chase Bank after the foreclosure
would not in any way prove a wrongful foreclosure cause of action. Since the
foreclosure was completed, the Poulsons could not redeem themselves by offering
payment. Accordingly, under this rule, the trial court did not err by sustaining the
demurrer, because the Poulsons’ offer occurred after the foreclosure, when there is no
right of redemption.
8 The letter is dated January 26, 2011. We infer “2011” should read “2012” since (1) the notary’s affidavit reflects the letter was sent on January 26, 2012, and (2) the check is dated January 26, 2012.
19 There is a harmless error rule that may cause an offer of payment to appear
relevant, but it does not apply in this case. The rule is as follows: If a borrower proves
irregularities in the trustee’s sale, the irregularities will be deemed harmless unless the
borrower can prove s/he offered to redeem the property. (Lona v. Citibank (2011) 202
Cal.App.4th 89, 112.) In this case, the Poulsons have failed to properly allege facts that
would show an irregularity in the sale. Therefore, a court would not reach the issue of
whether payment was offered. As a result, we conclude the trial court did not err by
sustaining the demurrer.
7. LOAN MODIFICATION
The Poulsons contend the trial court erred by sustaining the demurrer because
defendants foreclosed on the property while the Poulsons were going through the loan
modification process.
Prior to a property being sold at a trustee’s sale, a borrower can cure his/her
default and have the loan reinstated. (Civil Code, § 2924c, subd. (a)(1)&(2).) If, after
the default, but before the trustee’s sale, the bank and the borrower reach an enforceable
agreement to modify the terms of the loan and bring the loan current, and payments are
made per that modification agreement, then the borrower would have a cause of action
for wrongful foreclosure if the trustee’s sale were executed. (Barroso v. Ocwen Loan
Servicing, LLC (2012) 208 Cal.App.4th 1001, 1017.)
20 In the instant case, it is unclear if the Poulsons had a loan modification prior to
the trustee’s sale. The allegations in the complaint do not shed light on this issue.
Information in the record that could be construed as relating to a modification, e.g., the
letter from Chase Bank, reflects a date that is post-foreclosure. Additionally, it is
unclear how the check from the Poulsons to Chase Bank would reflect a loan
modification had been granted, which somehow involved defendants and brought
current the loan with defendants. In sum, it does not appear from the record that the
Poulsons had a loan modification prior to the trustee’s sale.
We recognize that our discussion has delved beyond the complaint into various
documents. The Poulsons are self-represented litigants and their complaint is somewhat
difficult to construe. As a result, we are using the evidence to help provide context in
understanding the allegations made in their complaint. We conclude (1) the complaint
does not provide specific information about the modification, and (2) the evidence does
not reflect how the more vague allegations in the complaint could be construed as
relating to a cause of action involving a loan modification. In sum, the Poulsons failed
to allege a cause of action reflecting (1) the trustee’s sale took place when (2) there was
an enforceable loan modification in place prior to the sale. Accordingly, the trial court
did not err by sustaining the demurrer.
The Poulsons do not appear to be arguing the leave to amend issue. However, to
the extent the Poulsons intended to raise the issue, we note the documents provided in
the record do not reflect leave to amend should have been granted. “The plaintiff bears
the burden of demonstrating a reasonable possibility to cure any defect by amendment.
21 [Citations.] A trial court abuses its discretion if it sustains a demurrer without leave to
amend when the plaintiff shows a reasonable possibility to cure any defect by
amendment. [Citations.]” (Trader Sports, Inc. v. City of San Leandro, supra, 93
Cal.App.4th at pp. 43-44.)
As set forth ante, the record includes a letter from Chase Bank, dated after the
foreclosure, reflecting an interest rate adjustment was being made to the Poulsons’ loan.
There is nothing indicating that (1) Bank of America agreed to a loan modification, (2) a
payment was made to Bank of America or EMC, or (3) the Poulsons’ default had
somehow been cured prior to the trustee’s sale. Accordingly, we conclude the trial
court acted within its discretion by denying leave to amend.
8. CONCLUSION
We conclude the trial court did not err.
B. COMMISSIONER
The Poulsons contend the judgment of dismissal is erroneous because they did
not stipulate to a commissioner presiding over their case.
A commissioner has the power to (1) hear and determine ex parte motions for
orders and alternative writs and writs of habeas corpus; (2) “[t]ake proof and make and
report findings thereon”; (3) “[t]ake and approve any bonds and undertakings,” and
determine objections to the bonds and undertakings; (4) “[a]ct as a temporary judge
when otherwise qualified so to act and when appointed for that purpose, on stipulation
of the parties”; (5) in family law cases, hear and report findings and conclusions to the
court for approval, rejection, or change; (6) hear paternity actions and child and spousal
22 support actions; and (7) hear, report on, and determine all uncontested actions. (Code
Civ. Proc., § 259.)
In Riverside County, all commissioners are appointed as temporary judges.
(Super. Ct. Riverside County, Local Rules, rule 1060.) However, the appointment to act
as temporary judge is not sufficient to preside over a matter, a commissioner must also
obtain a stipulation from the parties to preside over a specific proceeding. (In re
Courtney H. (1995) 38 Cal.App.4th 1221, 1224; Foodas v. Superior Court (2005) 130
Cal.App.4th 649, 654.)9
In the instant case, the record does not include a stipulation for Commissioner
Barkley to issue a judgment. The Poulsons explicitly refused to stipulate to
Commissioner Barkely presiding over the demurrer hearing, so a stipulation cannot be
inferred. Issuing a judgment is not on the list of various tasks commissioners may
perform without a stipulation. (Code. Civ. Proc., § 259.) Since it appears
Commissioner Barkley was not authorized to sign the judgment, we reverse the
dismissal. We will direct the trial courdt to have a judge issue the judgment. (See
Perez v. Perez (1952) 111 Cal.App.2d 827, 830 [where no findings are required, any
9 In at least one county, the local court rules provided stipulation is the default position, and a party must object if he does not want a commissioner presiding over his case. (See Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 691.) However, the legality of requiring an objection rather than a stipulation has been questioned. (Foodas v. Superior Court, supra, 130 Cal.App.4th at p. 655.) Riverside County does not appear to have a “commissioner objection” rule for its civil matters, so a stipulation must be entered. (Super. Ct. Riverside County, Local Rules, rules 3110- 3199, 3316-3402.)
23 “judge of the court [may] perform the more or less perfunctory act of entering the
formal order”].)10
DISPOSITION
The judgment of dismissal is reversed. The trial court is directed to have a judge
issue the judgment. The underlying ruling, concerning sustaining the demurrer without
leave to amend, was proper; this reversal is limited to the dismissal of the action. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
10 Since we have addressed the merits of the Poulsons’ contentions, we decline to address NDeX’s alternative argument that this Court should order the Poulsons to amend their brief to cite legal authorities and the appellate record.