From Lawzilla: RAINN GAUNA v. JPMORGAN CHASE BANK

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RAINN GAUNA v. JPMORGAN CHASE BANK

RAINN GAUNA v. JPMORGAN CHASE BANK

Filed 3/6/19 Gauna v. JPMorgan Chase Bank, N.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Nevada)

—-

RAINN GAUNA,

Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A., et al.,

Defendants and Respondents.

C078490

(Super. Ct. No. CU13-079937)

Rainn Gauna sued JPMorgan Chase Bank, National Association (JPMorgan Chase), Chase Home Finance, LLC (Chase Home Finance), California Reconveyance Corporation (CRC) and Deutsche Bank National Trust Company as trustee of Long Beach Mortgage Loan Trust 2005-1 (Deutsche Bank) after her property was sold at a nonjudicial foreclosure sale. The trial court sustained defendants’ demurrer to all causes of action in a first amended complaint without leave to amend.

Gauna now contends the trial court erred in (1) taking judicial notice of hearsay and disputed facts, (2) ruling that her fraud and deceit cause of action is time-barred, (3) concluding that the first amended complaint does not state a cause of action for breach of contract and that her breach of contract claim is time-barred, (4) ruling that she lacked standing to challenge the assignment of the deed of trust and that tender is required to state a cause of action for wrongful foreclosure, (5) sustaining the demurrer to her causes of action for cancellation of instruments, slander of title and violation of Business and Professions Code section 17200 et seq., (6) denying her leave to amend, and (7) hearing defendants’ demurrer before her discovery motions.

We will reverse the judgment as to the wrongful foreclosure cause of action, a portion of the cancellation of instruments cause of action, and a portion of the slander of title cause of action. Based on the well-pleaded allegations in the first amended complaint, which we must accept as true at this stage of the lawsuit, JPMorgan Chase could not assign the deed of trust because it did not have an interest in the note and deed of trust. In all other respects we will affirm the judgment.

BACKGROUND

Gauna’s first amended complaint alleged the following:

Pursuant to a note secured by a deed of trust, Gauna promised to pay Long Beach Mortgage Company (LBMC) $168,800 plus interest. LBMC’s loan to Gauna was not funded by LBMC, it was funded by investors who bought certificates to the Long Beach Mortgage Loan Trust 2005-1 (LBM Trust).

Gauna signed a deed of trust in relation to real property located in Nevada County (the property). The deed of trust identified Gauna as the borrower and LBMC as the lender and trustee. It secured to LBMC repayment of the note. Through the deed of trust, Gauna irrevocably granted to LBMC the property, in trust, with power of sale. The deed of trust provided that the note and deed of trust could be sold without prior notice to Gauna. It further provided that the lender may appoint a successor trustee who shall succeed to all title, powers and duties of the original trustee.

Washington Mutual Bank (WaMu) was the original servicer on the loan. It became the successor in interest to LBMC’s assets when LBMC closed its operations. However, Gauna’s note and deed of trust were sold before LBMC closed and WaMu did not acquire Gauna’s note as part of LBMC’s assets. The Federal Deposit Insurance Corporation (FDIC) took over WaMu’s operations in 2008. JPMorgan Chase bought certain assets of WaMu from the FDIC, but it did not buy any interest in Gauna’s note.

A process to modify Gauna’s loan was started in August 2008. Gauna did not miss a payment on her loan until March 2009, when a JPMorgan Chase branch representative was unable to process her monthly payment. A JPMorgan Chase branch representative also could not process Gauna’s April 2009 payment.

On or about May 1, 2009, Gauna received a Trial Period Plan (TPP) offer which outlined the steps she should take to obtain a loan modification, including making three monthly payments of $1,034. The cover letter for the offer was from WaMu which purportedly was “becoming Chase.” The offer identified JPMorgan Chase as the lender. The offer promised to modify Gauna’s adjustable interest rate loan if Gauna timely made TPP payments and if she qualified under the federal Home Affordable Modification Program (HAMP). Gauna accepted the TPP offer. She made TPP payments in May, June and July 2009.

At some point, Chase Home Finance serviced Gauna’s loan. A Chase Home Finance representative instructed Gauna to continue making TPP payments until she received a loan modification agreement. Gauna made TPP payments during the period August 2009 through January 2010. In January 2010, Gauna was instructed to stop making further payments until a loan modification agreement was executed. She attempted to make payments in February and March 2010, but those payments were refused.

Gauna received a loan modification agreement on March 18, 2010, with instructions to sign and return the agreement within seven days. The agreement did not account for $10,340 in TPP payments Gauna had made. It increased the principal balance on Gauna’s loan from $168,800 to $172,063.08. It contained undefined terms and terms Gauna opposed.

Gauna sought clarification about the role of Chase Home Finance and asked about the identity of the lender. She spoke with several Chase Home Finance representatives about terms in the loan modification agreement and the non-credited TPP payments. Chase Home Finance representatives refused to explain terms. They intimidated Gauna into signing the agreement by threatening to deny modification altogether. Gauna signed the agreement but wrote on it, “I am requesting an appraisal and an extension; I am signing with great stress and pressure with unanswered questions. Also your window of response is unreasonable.”

Chase Home Finance refused to execute the loan modification agreement. It required Gauna to go through the modification process again. And it instructed Gauna to stop making payments to requalify for a loan modification. After making her April, May and June 2010 payments, Gauna did not make a July 2010 payment upon the instruction of a JPMorgan Chase representative. She sent her completed loan modification application to JPMorgan Chase. And she made a modified loan payment in August 2010.

In December 2010, CRC recorded an assignment of the deed of trust in Nevada County. The assignment said JPMorgan Chase assigned to Deutsche Bank, as trustee of the LBM Trust, Gauna’s note and deed of trust. The LBM Trust was closed at the time of the assignment.

CRC also recorded a substitution of trustee. The person who signed the substitution purportedly signed it as an officer of JPMorgan Chase, as attorney in fact for Deutsche Bank, in its capacity as trustee of the LBM Trust. The document said Deutsche Bank substituted CRC as the trustee of Gauna’s deed of trust.

CRC also executed and recorded a notice of default stating that Gauna was in default by $23,358.34 as of December 22, 2010. CRC then executed a notice of trustee’s sale which was recorded in Nevada County.

Gauna filed a petition for bankruptcy under Chapter 13 of the Bankruptcy Code about a month later. The bankruptcy action was dismissed.

Almost 11 months after the termination of the bankruptcy action, CRC recorded another notice of trustee’s sale. CRC recorded three more notices of trustee’s sale in 2013. It ultimately conducted a trustee’s sale in September 2013. And it recorded a trustee’s deed upon sale, transferring all of its right, title and interest in the property to Deutsche Bank, as trustee of the LBM Trust.

Five days later, Gauna filed a complaint against JPMorgan Chase, Chase Home Finance, CRC and Deutsche Bank. The trial court sustained defendants’ demurrer in part with leave to amend and in part without leave to amend.

Gauna filed a first amended complaint, alleging fraud and deceit, breach of contract, cancellation of instruments, wrongful foreclosure, slander of title, violation of Business and Professions Code section 17200 et seq., and conversion. Defendants also demurred to that pleading. The trial court sustained the demurrer to all causes of action without leave to amend. It denied Gauna’s motion for reconsideration and dismissed the action. Because Gauna’s appellate opening brief does not address the trial court’s order sustaining the demurrer to the conversion cause of action, we will not address the propriety of a demurrer as to that cause of action.

STANDARD OF REVIEW

A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We independently evaluate the pleading, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context. (Id. at pp. 5-6.) We assume the truth of all material facts properly pleaded or implied and consider judicially noticed matter, but we do not assume the truth of contentions, deductions or conclusions of law. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) We also disregard those allegations in the pleading which contradict judicially noticed facts. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1054.) Viewing matters through this prism, we determine de novo whether the factual allegations of the challenged pleading are adequate to state a cause of action under any legal theory. (Milligan, at p. 6.) We will affirm the judgment if proper on any grounds stated in the demurrer, whether or not the trial court acted on that ground. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) The appellant bears the burden of demonstrating that the demurrer was sustained erroneously. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1485.)

DISCUSSION

I

Gauna argues the trial court erred in taking judicial notice of hearsay and disputed facts. We review a trial court’s ruling on a request for judicial notice for abuse of discretion. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264, disapproved on another ground in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13 (Yvanova).)

Gauna asserts the trial court took judicial notice of a “private agreement pulled from a website.” Her claim is forfeited because she does not cite the portion of the record supporting it. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Gauna further claims the trial court took judicial notice of disputed facts contained in the notice of default. Again, however, she does not cite the portion of the record in which the trial court took judicial notice of the facts she describes. We are not required to examine such an undeveloped claim. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984.) The claim is forfeited. (Nwosu, at p. 1246.)

II

Gauna next contends the trial court erred in ruling that her fraud and deceit cause of action is time-barred.

While Gauna addresses the statute of limitations ground for the trial court’s ruling, she does not address the other grounds upon which the trial court sustained the demurrer on the fraud cause of action. The trial court correctly determined that the first amended complaint fails to state a cause of action for fraud because the pleading falls short of the specificity needed to state a claim for fraud and fails to allege specific facts showing all the elements of fraud. Accordingly, we need not address whether the fraud cause of action is time-barred.

“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To withstand demurrer, a plaintiff must plead facts constituting every element of fraud with particularity. (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 35 (Kalnoki).) The plaintiff must plead facts which show how, when, where, to whom and by what means a misrepresentation was tendered. (Lazar, supra, 12 Cal.4th at p. 645.) And when the defendant is a corporation, the plaintiff must “ ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ ” (Ibid.) General and conclusory allegations will not suffice. (Ibid.)

Gauna alleges fraud with regard to the loan origination, the modification of the loan, the notice of default, and the assignment of the deed of trust.

A

As to the loan origination, Gauna alleges wrongful acts by LBMC. The trial court found the allegations lacked the requisite specificity, and we agree. For example, regarding the allegation that LBMC changed the interest rate for Gauna’s loan from fixed to adjustable, there is no allegation that a specified individual made a specified misrepresentation on a specified date. But there is also another deficiency. Gauna fails to allege facts showing how Chase Home Finance, Deutsche Bank and CRC can be liable for the alleged fraudulent acts by LBMC, which is not a defendant in this action.

B

Turning to the loan modification, the first amended complaint alleges the lender and Chase Home Finance represented that if Gauna entered into the TPP and complied with its terms, Chase Home Finance and the lender would modify her loan. It alleges Gauna justifiably relied on that representation and made modified payments, but Chase Home Finance and the lender refused to execute the modification agreement and instead demanded that Gauna resubmit her financial information and make another set of TPP payments. Chase Home Finance and the lender then rejected Gauna’s TPP payments, declared a default and foreclosed on the property. Gauna says she lost the property as a result of defendants’ fraud.

Gauna fails to allege a false representation because she admits she received an offer to modify her loan. The first amended complaint alleges Chase Home Finance and the lender refused to execute the loan modification agreement, but it also alleges facts showing that Gauna did not unconditionally accept the terms of the loan modification agreement. Rather, Gauna asked for an appraisal and an extension and objected that she signed the agreement with “great stress and pressure with unanswered questions.”

“ ‘[T]erms proposed in an offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a binding contract [citations].” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855-856; see Civ. Code § 1585.) An acceptance which, as here, contains additions or limitations is a rejection of the offer and amounts to a counteroffer. (Panagotacos, at pp. 855-856; Ajax Holding Co. v. Heinsbergen (1944) 64 Cal.App.2d 665, 669-670.) A counteroffer containing a condition not in the original offer, if not accepted by the original offeror, does not result in a contract. (Ajax Holding, at pp. 669-670.) Gauna cites no authority requiring an original offeror to accept a counteroffer.

Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, a case Gauna’s counsel cited during oral argument, is not on point. That decision held that general contract principles did not apply in determining whether a Code of Civil Procedure section 998 offer was rejected. (Id. at p. 1377.) But this case does not involve an offer to compromise made pursuant to Code of Civil Procedure section 998.

The first amended complaint also fails to allege facts showing knowledge of falsity, intent to defraud and that Gauna’s alleged injury — making modified payments and loss of the property — was caused by Chase Home Finance or the lender’s alleged misrepresentation. As for the last fraud element, continuing to make modified loan payments does not constitute detrimental reliance because Gauna was contractually obligated to make loan payments. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 79 (Lueras); West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 795 (West).) Gauna fails to allege specific facts showing how her reliance on defendants’ promise to modify her loan caused her to default on her loan or prevented her from curing that default. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1499-1500 (Rossberg).)

C

Regarding the notice of default, the first amended complaint alleged the notice represented that Gauna was in default by $23,358.34 as of December 22, 2010, but the representation was false because it did not account for $13,442 in TPP payments and it included improper charges. Gauna alleged Chase Home Finance and the lender caused the notice of default to be recorded even though they knew it was false. She claimed the false representation prevented her from clearing the arrears and she lost the property as a result.

A plaintiff asserting fraud must plead actual reliance, i.e., a causal relationship between the alleged misrepresentation and the harm claimed to have resulted therefrom. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.) The plaintiff must “allege specific facts not only showing he or she actually and justifiably relied on the defendant’s misrepresentations, but also how the actions he or she took in reliance on the defendant’s misrepresentations caused the alleged damages. [Citation.]” (Rossberg, supra, 219 Cal.App.4th at p. 1499; see Lueras, supra, 221 Cal.App.4th at p. 79.) “If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.’ ” (Rossberg, at p. 1499, italics omitted; see Lueras, at p. 79.)

The first amended complaint does not allege facts showing a causal relationship between Gauna’s alleged injury and the allegedly inflated amount stated in the notice of default. In particular, Gauna does not allege facts showing that she took or did not take some action because of the misstatement in the notice of default. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 (Orcilla); Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1615 (Hamilton); Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1091.) Her general allegation that she relied on the false representations by defendants is conclusory and insufficient to plead fraud. (Glaski, at p. 1091.) While she alleged she could have cleared the arrears, the first amended complaint indicated Gauna did not make other payments, and she stated in her appellate opening brief that she last made a payment on the note in August 2010 and she was $13,442 in arrears. She does not say she could have paid the arrears not caused by defendants’ alleged refusal to accept her payments. Without a loan modification, Gauna was still obligated to make the payments due under her note. (Lueras, supra, 221 Cal.App.4th at p. 79) The TPP Agreement expressly provided that the lender’s acceptance of a payment during the TPP period did not constitute a cure of Gauna’s default under the loan documents unless such payments were sufficient to completely cure her entire default under the loan documents. It also stated that the terms of the loan documents remained in full force and effect and the TPP did not release the obligations contained in the loan documents.

D

As for the assignment of the deed of trust, the first amended complaint alleged Colleen Irby falsely represented in the assignment that she was an officer of JPMorgan Chase, thereby obscuring the identity of the lender and preventing Gauna from resolving the servicing improprieties, which resulted in the loss of the property. But those allegations are not specific enough. They do not allege what action Gauna took or did not take in reliance on Irby’s alleged misrepresentation (Orcilla, supra, 244 Cal.App.4th at pp. 1007-1008; Hamilton, supra, 195 Cal.App.4th at p. 1615), and they do not specify exactly how she lost her property because of Irby’s alleged false representation. Gauna was in arrears and the first amended complaint does not allege that she was able to bring her loan current.

III

Gauna further argues the first amended complaint states a cause of action for breach of contract.

The elements of a cause of action for breach of contract include (1) the existence of a contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) damages to the plaintiff caused by the breach. (Orcilla, supra, 244 Cal.App.4th at p. 1005.) To the extent Gauna alleges the breach of a written contract, she may plead the contract by its terms (set out verbatim or with a copy of the contract attached to her pleading and incorporated therein by reference) or by its legal effect by alleging the substance of its relevant terms. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)

The first amended complaint alleged that the note, deed of trust and TPP were breached. The trial court took judicial notice of the note and deed of trust; those documents show an agreement between Gauna and LBMC. The note and deed of trust did not mention JPMorgan Chase, Chase Home Finance or Deutsche Bank. Further, based on the allegations of the first amended complaint, neither JPMorgan Chase nor Deutsche Bank is a successor in interest to LBMC. The first amended complaint did not allege facts showing the existence of a note or deed of trust between Gauna, on the one hand, and JPMorgan Chase, Chase Home Finance or Deutsche Bank, on the other, and the terms of any such note or deed of trust. Therefore, the trial court properly sustained the demurrer to the breach of contract cause of action based on the note and deed of trust because Gauna cannot assert a claim for breach of contract against an entity that is not a party to the contract. (Universal Bank v. Lawyers Title Ins. Corp. (1997) 62 Cal.App.4th 1062, 1066 (Universal Bank); Tri-Continent International Corp. v. Paris Savings & Loan Assn. (1993) 12 Cal.App.4th 1354, 1359 (Tri-Continent).)

Turning to the TPP agreement, the first amended complaint alleged Chase Home Finance and the lender breached that agreement by refusing to execute the loan modification and by failing to provide Gauna with a fair and reasonable modification agreement.

Exhibit 3 to the first amended complaint is a copy of the purported TPP agreement. That exhibit includes a three-page document entitled “Home Affordable Modification Trial Period Plan” (hereafter TPP agreement) and a cover letter from “JPMorgan Chase Bank, N.A., successor to Washington Mutual Bank.” Chase Home Finance and Deutsche Bank are not mentioned in the TPP agreement. Moreover, the first amended complaint fails to state facts showing that Chase Home Finance or Deutsche Bank are parties to the TPP agreement. Accordingly, the first amended complaint fails to state breach of contract claims against Chase Home Finance and Deutsche Bank based on the TPP agreement. (Universal Bank, supra, 62 Cal.App.4th at p. 1066; Tri-Continent, supra, 12 Cal.App.4th at p. 1359.)

The TPP agreement said if Gauna was in compliance with the TPP and her representations in the document continued to be true, JPMorgan Chase would provide her with a Home Affordable Modification Agreement which would amend the note. JPMorgan Chase does not argue that the TPP agreement is not a contract. Under the terms of the TPP agreement, JPMorgan Chase was obligated to provide Gauna with a loan modification agreement if Gauna complied with the terms of the TPP and her representations in the document continued to be true. (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 925-928 (Bushell); Wigod v. Wells Fargo Bank, N.A. (7th Cir. 2012) 673 F.3d 547, 560-561 (Wigod).)

However, the first amended complaint alleges that Gauna received a Home Affordable Modification Agreement (loan modification agreement). The facts alleged do not, therefore, demonstrate a breach of contract. Gauna did not unequivocally accept the terms of the loan modification agreement. She does not state a cause of action for breach of contract based merely on the argument that defendants were required to accept her counteroffer.

The first amended complaint also claims defendants breached the TPP agreement by failing to offer a fair and reasonable loan modification agreement. We agree with Gauna that a lender’s duty to offer a loan modification pursuant to a TPP includes a duty to offer a good faith permanent loan modification. (Bushell, supra, 220 Cal.App.4th at pp. 925-928; West, supra, 214 Cal.App.4th at pp. 796-799; Wigod, supra, 673 F.3d at p. 565.) But Gauna argues the loan modification agreement was not in good faith because it was a contract of adhesion presented to her on a “take it or leave it” basis, it inexplicably increased her principal balance by $3,200, it included a balloon payment of $38,513.47, and it had vague terms that were prejudicial to her.

The phrase contract of adhesion “signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694.) A contract of adhesion is nevertheless enforceable according to its terms unless it defeats the reasonable expectations of the weaker or adhering party, and even if consistent with the reasonable expectations of the adhering party, it is unduly oppressive or unconscionable. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 108; Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 201; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1375.) Unconscionability has both procedural and substantive elements. (Lona, supra, 202 Cal.App.4th at p. 109.) Substantive unconscionability may exist when a contract has overly-harsh or one-sided results or when it reallocates the risks of the bargain in an objectively unreasonable or unexpected manner. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 487.)

The first amended complaint did not allege facts showing how the loan modification agreement defeated Gauna’s objectively reasonable expectations. (Lee v. Interinsurance Exchange (1996) 50 Cal.App.4th 694, 721-724.) Gauna had to allege specific facts because an allegation that a contract is unconscionable is mere legal conclusion. (Shadoan v. World Sav. & Loan Assn. (1990) 219 Cal.App.3d 97, 103.)

The loan modification agreement stated that the modified principal balance on the note would include all past due amounts, including unpaid and deferred interest, fees, escrow advances and other costs (but not unpaid late charges), less any amounts paid to the lender but not previously credited to Gauna’s loan. The cover letter to the TPP similarly advised Gauna that past due amounts, including unpaid interest, taxes, insurance and assessments paid on Gauna’s behalf to a third party, would be added to the principal loan balance. According to the first amended complaint, no monthly loan payments were made on Gauna’s loan for two months in 2009 and for at least four months in 2010. On this record, an approximately $3,200 increase in the principal loan balance was not without explanation and was not substantively unconscionable.

In addition, Gauna offers no facts showing that the terms of the proposed modified loan or other circumstances were overly-harsh or one-sided and unjustified. She does not present legal analysis with citation to supporting authority establishing that the loan modification agreement is unenforceable, and we are not obligated to perform that function for her. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1 (Okasaki); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 (Keyes).)

Furthermore, the first amended complaint failed to allege damages caused by defendants’ breach of the TPP agreement. It alleged Gauna was forced to continue to pay under the unconscionable terms of the note, lost her property and incurred legal fees and costs because of defendants’ breaches, but it did not allege that Gauna was not in default under her loan and that absent the alleged breaches by defendants, Gauna would have avoided foreclosure and the loss of the property. (Orcilla, supra, 244 Cal.App.4th at p. 1005.)

The first amended complaint fails to state a cause of action for breach of contract against JPMorgan Chase, Chase Home Finance and Deutsche Bank. Accordingly, we need not address whether any such cause of action is time-barred.

IV

Gauna claims the trial court erred in ruling that she lacked standing to challenge the assignment of the deed of trust, and that tender was required to state a cause of action for wrongful foreclosure.

After the trial court ruled that Gauna lacked standing to challenge the assignment of the deed of trust, the California Supreme Court held in Yvanova, supra, 62 Cal.4th 919, that a borrower of a home loan secured by a deed of trust who has been subjected to a nonjudicial foreclosure has standing to sue for wrongful foreclosure based on an allegedly void assignment of the note and deed of trust — e.g., that the foreclosing entity lacked authority to pursue foreclosure — even if the borrower is in default on the loan and is not a party to the challenged assignment. (Id. at pp. 924, 935, 939.) Under Yvanova, Gauna has standing to challenge the assignment of the deed of trust if the assignment is void but not where the assignment is voidable. (Id. at pp. 942-943.) We independently evaluate the first amended complaint to determine whether it alleges a void assignment.

A suit for wrongful foreclosure is an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, based on the assertion that the foreclosure was improper. (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561.) To succeed on a wrongful foreclosure cause of action, the plaintiff must show that (1) the trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Id. at pp. 561-562.)

In a nonjudicial foreclosure, only the holder of the beneficial interest under the mortgage or deed of trust or its agent may direct the trustee to sell the property. (Civ. Code, § 2924, subd. (a)(1), (6); Yvanova, supra, 62 Cal.4th at pp. 929, 935.) If a foreclosing entity claims the power to foreclose based on a void assignment, the foreclosing entity has acted without legal authority and such an unauthorized sale constitutes a wrongful foreclosure. (Yvanova, supra, 62 Cal.4th at pp. 929, 935.)

Here, the first amended complaint alleged (1) the lender could not exercise the power of sale because Chase Home Finance and the lender breached the note and deed of trust, (2) the nonjudicial foreclosure was wrongful because the notice of default was deficient in that it inflated the arrears amount and falsely claimed that the notice was issued by CRC as trustee (when LBMC was the trustee) and that JPMorgan Chase was the beneficiary, (3) CRC was not a validly substituted trustee, and (4) Deutsche Bank was not the beneficiary under the deed of trust and thus could not enter a credit bid.

Regarding the first allegation, we have already concluded Gauna fails to state a cause of action for breach of the note and deed of trust against JPMorgan Chase, Chase Home Finance and Deutsche Bank. As for the allegedly deficient notice of default, the notice contained the statements required under Civil Code section 2924, subdivision (a)(1) and the first amended complaint does not allege facts showing that the information in the notice caused Gauna injury. However, the first amended complaint states a cause of action for wrongful foreclosure by alleging facts showing that CRC (which Deutsche Bank substituted as the new trustee) had no authority to conduct the nonjudicial foreclosure because JPMorgan Chase, the entity from which Deutsche Bank purportedly obtained an assignment of the deed of trust, did not own a beneficial interest in the loan and deed of trust and, therefore, had no authority to assign the deed of trust to Deutsche Bank.

Defendants say the claim that the assignment is void is based on the late transfer of the note into the LBM Trust. But the first amended complaint alleged other facts which Gauna asserts rendered the assignment void. The first amended complaint alleged that the note and deed of trust were sold before WaMu became LBMC’s successor in interest. Therefore, according to the first amended complaint, JPMorgan Chase did not acquire any interest in the note and deed of trust when it purchased WaMu’s assets from the FDIC. Contrary to the assertion by counsel for JPMorgan Chase at oral argument, Gauna raised this issue in her appellate opening brief. She urges on appeal that her loan was sold before LBMC merged with WaMu and, therefore, JPMorgan Chase did not acquire her loan from the FDIC. She complains that the trial court failed to address that allegation.

The case of Sciarratta, supra, 247 Cal.App.4th 552, is instructive. In that case, the plaintiff executed a promissory note secured by a deed of trust identifying WaMu as the lender. (Sciarratta, supra, 247 Cal.App.4th at pp. 556-557.) About four years later, JPMorgan Chase, as successor in interest to WaMu, assigned the note and deed of trust to Deutsche Bank, as trustee for Long Beach Mortgage Loan Trust 2006-6. (Id. at p. 557.) The plaintiff defaulted on her loan and the trustee recorded a notice of default and trustee’s sale. (Ibid.) JPMorgan Chase then assigned the note and deed of trust to Bank of America, which foreclosed on the deed of trust. (Id. at pp. 557-558.) The plaintiff brought a wrongful foreclosure action, alleging that the assignment to Bank of America was void and Bank of America had no right to foreclose because JPMorgan Chase had previously assigned the note and deed of trust to Deutsche Bank. (Id. at pp. 561-562.) The documents subject to judicial notice were consistent with the plaintiff’s allegations. (Id. at p. 563.) The court in Sciarratta held that the assignment to the foreclosing entity (Bank of America) was void and not merely voidable because having assigned all beneficial interest in the plaintiff’s note and deed of trust to Deutsche Bank, JPMorgan Chase could not later assign the same interests to Bank of America. (Id. at p. 564.)

In this case, under the facts alleged in the first amended complaint, JPMorgan Chase could not assign the beneficial interest in the note and deed of trust to Deutsche Bank because it did not have any interest in the note and deed of trust to assign. (Sciarratta, supra, 247 Cal.App.4th at p. 564; Barrionuevo v. Chase Bank, N.A. (N.D. Cal. 2012) 885 F.Supp.2d 964, 971-974 (Barrionuevo) [the plaintiffs stated a cause of action for wrongful foreclosure where they alleged that the lender sold the beneficial interest in their deed of trust before the entity purporting to be the beneficiary under the deed of trust acquired the lender’s assets]; Burke v. JPMorgan Chase Bank, N.A (N.D. Cal. May 11, 2015, No. 13-4249SC) 2015 U.S. Dist. Lexis 61512, p. *8; Subramani v. Wells Fargo Bank N.A. (N.D. Cal. Oct. 31, 2013, No. 13-1605SC) 2013 U.S. Dist. Lexis 156556, pp. *10-11; Javaheri v. JPMorgan Chase Bank, N.A. (C.D. Cal. June 2, 2011, No. CV10-08185 ODW FFMx) 2011 U.S. Dist. Lexis 62152, pp. *13-14.)

The judicially noticeable facts do not contradict the allegations in the first amended complaint. While the assignment of the deed of trust recites that JPMorgan Chase was the successor in interest to WaMu and WaMu was the successor in interest to LBMC, we may not take judicial notice of those asserted facts because they are subject to dispute. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Glaski, supra, 218 Cal.App.4th at p. 1102.) The matters which we must accept as true for purposes of a demurrer show that the assignment from JPMorgan Chase to Deutsche Bank was void; thus, Deutsche Bank had no authority to substitute CRC as the trustee and CRC had no authority to conduct the nonjudicial foreclosure.

The first amended complaint adequately alleges that Gauna suffered harm as a result of the wrongful foreclosure in that it alleges that she lost the property as a result of the void assignment and sale of the property by one without power of sale. (Sciarratta, supra, 247 Cal.App.4th at pp. 565-567.) A void contract is a nullity and cannot be validated by any party. (Yvanova, supra, 62 Cal.4th at p. 929.) It is hard to imagine that a borrower who has lost his or her property in a sale by an entity that had no right to enforce the debt has not been prejudiced thereby. (Sciarratta, supra, 247 Cal.App.4th at pp. 565-567; see Yvanova, supra, 62 Cal.4th at pp. 937-939.)

Kalnoki, supra, 8 Cal.App.5th 23 is inapposite. In contrast with the facts pleaded here, the judicially noticeable facts in Kalnoki showed that the entities which executed the substitution of trustee and assignment of the deed of trust and initiated the nonjudicial foreclosure were authorized to do so. (Id. at pp. 36-44.)

As respondents concede, tender is not required when the instrument or transaction sought to be cancelled or set aside is void. (Smith v. Williams (1961) 55 Cal.2d 617, 621; Sciarratta, supra, 247 Cal.App.4th at p. 565, fn. 10; Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818-819 (Saterbak); Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1063 [the plaintiff need not allege tender where the foreclosure sale was void because the defendants lacked a contractual basis to exercise the power of sale]; Glaski, supra, 218 Cal.App.4th at p. 1100; Cheung v. Wells Fargo Bank, N.A. (N.D. Cal. 2013) 987 F.Supp.2d 972, 978; Barrionuevo, supra, 885 F.Supp.2d at pp. 969-971.)

Based on the above, the trial court erred in sustaining the demurrer to the wrongful foreclosure cause of action.

V

Gauna also contends the trial court erred in sustaining the demurrer to her causes of action for cancellation of instruments, slander of title and violation of Business and Professions Code section 17200 et seq. We will address each cause of action in turn.

A

We begin with the cause of action for cancellation of instruments. Civil Code section 3412 provides: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” To obtain cancellation, a plaintiff must allege facts showing that the instrument is void or voidable and would cause serious injury if not canceled. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523; Saterbak, supra, 245 Cal.App.4th at pp. 818-819; Kroeker v. Hurlbert (1940) 38 Cal.App.2d 261, 266.) Here, the cause of action for cancellation of instruments seeks to cancel the note and deed of trust, the assignment of the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale.

The first amended complaint alleges LBMC was not the actual lender on Gauna’s loan and provided no consideration for the note because the loan was table-funded by Doe investors. “ ‘Table-funding’ is defined as a ‘settlement at which a loan is funded by a contemporaneous advance of loan funds and an assignment of the loan to the person advancing the funds.’ [Citation.] In a table-funded loan, the originator closes the loan in its own name, but is acting as an intermediary for the true lender, which assumes the financial risk of the transaction.” (Easter v. Am. West Fin. (9th Cir. 2004) 381 F.3d 948, 955, fn. omitted.) The first amended complaint alleges the note and deed of trust are void because they did not identify the real lender and there was no consideration from LBMC. Gauna argues that because of the table-funding and securitization of her loan, the parties who provided the consideration were concealed in violation of Civil Code sections 1550 and 1558, and there was no mutual consent as required under Civil Code section 1580.

Civil Code section 1558 says the ability to identify the parties to a contract is essential to a contract’s validity. In this case, the promissory note identifies the lender and the borrower. While Gauna alleges Doe investors actually provided the funds that LBMC lent Gauna, she cites no authority that such an arrangement invalidates the contractual relationship between Gauna and LBMC under the note. (Logvinov v. Wells Fargo Bank (N.D. Cal. Dec. 9, 2011, No. C-11-04772 DMR) 2011 U.S. Dist. Lexis 141988, pp. *8-9 [securitization does not change the relationship of the parties to the note]; Sepehry-Fard v. Nationstar Mortg. LLC (N.D. Cal. Jan. 26, 2015, No. 14-CV-03218-LHK) 2015 U.S. Dist. Lexis 8790, p. *62 [securitization does not render the plaintiff’s mortgage loans unenforceable].) In any event, the first amended complaint alleges that the true parties to the note are Gauna and the investors who owned the LBM Trust. On this record it appears it was possible to identify the alleged true lender.

Civil Code section 1550 sets forth the essential elements of a contract including consideration and consent. Civil Code section 1580 provides that consent is not mutual unless the parties all agree upon the same thing in the same sense. A reasonable inference from the facts alleged in the first amended complaint is that Gauna received $168,800 in consideration for her execution of the note and deed of trust. Courts have rejected claims that table-funding voids or invalidates a loan. (Arzamendi v. Wells Fargo Bank, N.A. (E.D. Cal. Mar. 8, 2018, No. 1:17-cv-01485-CJO-SKO) 2018 U.S. Dist. Lexis 38382, p. *11; Marquez v. Select Portfolio Servicing, Inc. (N.D. Cal. Mar. 16, 2017, No. 16-cv-03012-EMC) 2017 U.S. Dist. Lexis 38239, p. *7; Grieves v. MTC Financial Inc. (N.D. Cal. July 25, 2017, No. 17-CV-01981-LHK) 2017 U.S. Dist. Lexis 116458, p. *37, fn. 1; see Silas v. Argent Mortgage Co., LLC (E.D. Cal. July 24, 2017, No. 1:17-cv-00703-LJO-JLT) 2017 U.S. Dist. Lexis 115324, p. *27; Sotanski v. HSBC Bank USA, National Assn. (N.D. Cal. Aug. 12, 2015, No. 15-cv-01489-LHK) 2015 U.S. Dist. Lexis 106859, pp. *17-18; Ghalehtak v. FNBN I, LLC (N.D. Cal. May 6, 2016, No. 15-cv-05821-LB) 2016 U.S. Dist. Lexis 61347, p. *9; Major v. Imortgage.com, Inc. (C.D. Cal. Feb. 8, 2016, No. 5:15-cv-02592-CASDTBx) 2016 U.S. Dist. Lexis 15225, pp. *9-10.)

Courts have also rejected the argument that a lender loses its interest in a note when it is securitized. (Sepehry-Fard v. Nationstar Mortg. LLC, supra, 2015 U.S. Dist. Lexis 8790, p. *62; Ramirez v. J.P. Morgan Chase Bank, N.A. (E.D. Cal. June 7, 2013, No. 1:13-CV-352 AWI GSA) 2013 U.S. Dist. Lexis 80624, p. *10 [securitization of the note does not affect the ability to foreclose]; Hague v. Wells Fargo Bank, N.A. (N.D. Cal. Dec. 6, 2011, No. C11-02866 TEH) 2011 U.S. Dist. Lexis 140122, p. *16; Logvinov v. Wells Fargo Bank, supra, 2011 U.S. Dist. Lexis 141988, pp. *8-9; Wadhwa v. Aurora Loan Services, LLC (E.D. Cal. July 8, 2011, No. S-11-1784 KJM KJN) 2011 U.S. Dist. Lexis 73949, pp. *9-10; Lane v. Vitek Real Estate Indus. Group (E.D. Cal 2010) 713 F.Supp.2d 1092, 1099; Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D. Cal. 2009) 652 F.Supp.2d 1039, 1043.) Gauna cites no authority voiding a note or deed of trust based on table-funding or securitization.

Gauna claims on appeal that her loan was paid off. But courts have rejected claims that a borrower is relieved of his or her mortgage obligation when the lender received payment in full upon the securitization of a note. (Javaheri v. JPMorgan Chase Bank, N.A., supra, 2011 U.S. Dist. Lexis 62152, pp. *13-14; Hague v. Wells Fargo Bank, N.A., supra, 2011 U.S. Dist. Lexis 140122, p. *16; West v. Bank of America, N.A. (D. Nev. June 22, 2011, No. 2:10-CV-1966 JCM GWF) 2011 U.S. Dist. Lexis 66726, p. *5.)

Gauna also argues that the securitization of her loan introduced new parties, terms and risks to her loan contract. However, the first amended complaint does not allege, and Gauna’s appellate brief does not state, facts showing such alteration. Gauna’s conclusory statements are insufficient to plead a void or voidable contract. (New v. Mutual Benefit Health & Accident Assn. (1938) 24 Cal.App.2d 681, 683 [allegation that policy is “in contravention of the laws of the State of California” and is void are mere conclusions of law]; see 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 674, p. 98 [to state an action to remove cloud over title, facts showing actual invalidity of apparently valid instrument must be specifically pleaded].) The first amended complaint failed to allege facts showing that the note and deed of trust are void or voidable.

The cause of action for cancellation of instruments also seeks to cancel the assignment of the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale.

The first amended complaint alleges the assignment of the deed of trust is void because (1) JPMorgan Chase had no valid interest in the note or deed of trust, (2) the interest in Gauna’s note and deed of trust was assigned to Deutsche Bank after the closing date of the LBM Trust, and (3) Colleen Irby was not an officer of JPMorgan Chase and had no authority to execute the assignment for JPMorgan Chase. The first amended complaint alleges that the notice of default, notice of trustee’s sale and trustee’s deed upon sale must be cancelled in part because CRC was not the duly authorized trustee and Deutsche was not the beneficiary under the deed of trust. Those allegations appear to be based on the alleged void assignment by JPMorgan Chase.

As we have explained, the assignment of the deed of trust is void under the facts alleged because JPMorgan Chase had no interest in the note or deed of trust to assign. The first amended complaint alleges sufficient facts showing that Gauna would suffer a serious injury if the void assignment is not canceled. (Cf. Saterbak, supra, 245 Cal.App.4th at pp. 819-820 [no “ ‘serious injury’ ” where assignment was voidable because defective assignment did not change the borrower’s payment obligations under the note].) Tender is not required to state a cause of action for cancellation of instruments because Gauna adequately alleged that the assignment is void and not merely voidable. (Sciarratta, supra, 247 Cal.App.4th p. 568.)

In addition, because the assignment to Deutsche Bank is void under the facts alleged, Deutsche Bank had no authority to substitute CRC as the trustee under the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale, and those documents are also void under the facts alleged.

The judgment as to the cancellation of instruments cause of action must be reversed with regard to the assignment of the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale.

B

With regard to her cause of action for slander of title, Gauna contends the trial court erred in concluding that (a) the deed of trust, substitution of trustee, and trustee’s deed upon sale were privileged under Civil Code section 2924, subdivision (d)(1), (b) the privilege applied because CRC was the trustee under the deed of trust, (c) Gauna must allege malice, and (d) loss of title and investment in the property was not a direct pecuniary loss.

“Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof ‘ “some special pecuniary loss or damage.” ’ [Citation.] The elements of the tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. [Citations.] If the publication is reasonably understood to cast doubt upon the existence or extent of another’s interest in land, it is disparaging to the latter’s title. [Citation.] The main thrust of the cause of action is protection from injury to the salability of property [citations], which is ordinarily indicated by the loss of a particular sale, impaired marketability or depreciation in value [citations].” (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.) The pecuniary loss element is also satisfied by attorney’s fees and costs necessary to clear title. (Id. at pp. 1030-1031.)

The slander of title cause of action in the first amended complaint is based on the recording of the assignment of the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale. Gauna fails to show how the recording of the assignment of the deed of trust and the substitution of trustee disparaged her title to the property. The first amended complaint does not state a slander of title cause of action based on the recording of those documents.

However, the recording of the notice of default, the notice of trustee’s sale, and the trustee’s deed upon sale constitute publications for purposes of a slander of title cause of action. (Ghuman v. Wells Fargo Bank, N.A. (E.D. Cal. 2013) 989 F.Supp.2d 994, 1000 (Ghuman).) The first amended complaint alleged those documents contained false statements of material fact and their recording impaired Gauna’s title to the property. The alleged falsity was that CRC was authorized to conduct a nonjudicial foreclosure under the deed of trust.

Nevertheless, the recording of a notice of default, a notice of sale, and a trustee’s deed upon sale is protected by a qualified privilege. (Civ. Code, § 2924, subd. (d)(1), (2); Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333.) The privilege protects communications made without malice. (Kachlon, at p. 336.) Malice means the defendant was “ ‘ “motivated by hatred or ill will towards the plaintiff” ’ ” or “ ‘ “lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” ’ ” (Ibid.) Implied malice is sufficient to defeat the qualified privilege. (Contra Costa County Title Co. v. Waloff (1960) 184 Cal.App.2d 59, 66.)

The first amended complaint alleged JPMorgan Chase, Chase Home Finance, CRC and Deutsche Bank knew the recorded documents contained false representations and intended the recorded documents “to have a specific legal effect based on those false representations.” We understand the allegation to mean that JPMorgan Chase, Chase Home Finance, CRC and Deutsche Bank intended to use the recorded documents to foreclose on the property even though they knew they did not have a right to foreclose because JPMorgan Chase never acquired an interest in the note and deed of trust. The first amended complaint alleges sufficient facts to plead malice. (Ghuman, supra, 989 F.Supp.2d at p. 1000 [allegation that the defendants’ recording of documents was “ ‘knowingly wrongful’ ” was sufficient to defeat the privilege]; Barrionuevo, supra, 885 F.Supp.2d at p. 975 [allegations that the defendants published a notice of trustee’s sale with “ ‘malice and a reckless disregard for the truth’ ” and the publications were false were sufficient to withstand challenge to the pleading]; Davis v. Wood (1943) 61 Cal.App.2d 788, 794-795 [allegation that the defendants recorded documents maliciously and with knowledge that their claims were wholly false was sufficient to negative any privilege].)

Gauna alleged the recording of the challenged documents diminished the marketability of her title to the property and caused her to lose her investment in the property through an improper foreclosure. That is sufficient to allege the “ ‘direct pecuniary loss’ ” element of a slander of title cause of action. (Barrionuevo, supra, 885 F.Supp.2d at p. 975.)

Based on the above, the trial court erred in sustaining the demurrer to the slander of title cause of action as to the recording of the notice of default, the notice of trustee’s sale, and the trustee’s deed upon sale. But Gauna fails to demonstrate error as to the recording of the assignment of the deed of trust and the substitution of trustee.

C

Turning to the cause of action for violation of Business and Professions Code section 17200 et seq., the trial court concluded Gauna failed to show standing because her factual allegations did not demonstrate an economic injury caused by the defendants’ conduct. We agree.

Gauna’s Business and Professions Code cause of action is based on the following alleged acts: Chase Home Finance and the lender refused to accept Gauna’s loan payments, refused to execute the loan modification agreement, and caused to be recorded a notice of default that did not account for all monies paid and inflated the arrears; CRC falsely claimed to be the trustee; and Deutsche Bank accepted late assignments into the LBM Trust.

Business and Professions Code section 17200 et seq. prohibits and provides civil remedies for any unlawful, unfair or fraudulent business act or practice. Actions for relief by a private plaintiff are limited to those who have been injured in fact and lost money or property as a result of an unlawful, unfair or fraudulent business act or practice. (Bus. & Prof. Code, § 17204.) The plaintiff must plead general facts showing an economic injury which was caused by the defendant’s unlawful, unfair or fraudulent business act or practice. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, 327.)

When a Business and Professions Code section 17200 et seq. claim is derivative of other substantive causes of action, the claim “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.” (Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 178.) Regarding the alleged refusal to accept Gauna’s loan payments, the first amended complaint fails to state a breach of contract cause of action against JPMorgan Chase, Chase Home Finance and Deutsche Bank and Gauna fails to demonstrate how the refusal to accept loan payments constitutes an unlawful, unfair or fraudulent business act or practice by any defendant. As for the allegation that Chase Home Finance and the lender refused to execute the loan modification agreement, as we have explained, Gauna rejected the offer of a modification and she cites no authority mandating acceptance of her counteroffer. Because her claims are not supported by legal analysis and citation to authority, they are forfeited. (Okasaki, supra, 203 Cal.App.4th at p. 1045, fn. 1; Keyes, supra, 189 Cal.App.4th at p. 656.) The first amended complaint does not state facts showing an unlawful, unfair or fraudulent business act or practice based on those allegations.

With regard to the other bases for the Business and Professions Code section 17200 et seq. cause of action, the first amended complaint does not allege facts showing a causal connection between the alleged wrongful act and the alleged injury. A plaintiff fails to plead a causal connection between the alleged injury and the unlawful, unfair or fraudulent business act or practice if he or she would have suffered the same harm regardless of the defendant’s act or practice. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 522 (Jenkins), disapproved on another ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13; Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1099 (Daro).)

Gauna represented that she was unable to pay her regular monthly loan payments. She began making modified loan payments in May 2009. The first amended complaint alleges the notice of default overstated the amount of arrears by over $13,422, but it does not allege Gauna would not otherwise have defaulted on the note. The order sustaining the demurrer was proper because the first amended complaint failed to allege that Gauna would not have been injured absent defendants’ wrongful acts. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 614; Jenkins, supra, 216 Cal.App.4th at p. 523; Daro, supra, 151 Cal.App.4th at p. 1099; Diunugala v. JP Morgan Chase Bank, N.A. (S.D. Cal. 2015) 81 F.Supp.3d 969, 992.)

Gauna identifies additional alleged acts or omissions in her appellant’s opening brief that she claims constituted violations of Business and Professions Code section 17200 et seq., but her assertion is forfeited because she fails to provide legal argument and citation to authority in support. (Okasaki, supra, 203 Cal.App.4th at p. 1045, fn. 1; Keyes, supra, 189 Cal.App.4th at p. 656.) “ ‘The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ ” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

VI

Gauna claims the trial court erred in denying her leave to amend. We consider whether the challenged pleading might state a cause of action if the appellant were permitted to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint could be amended to state a cause of action, the trial court abused its discretion in denying leave to amend and we will reverse; if not, there has been no abuse of discretion and we will affirm. (Ibid.) The appellant bears the burden of showing a reasonable possibility that a defect can be cured by amendment. (Ibid.)

The allegations in the first amended complaint are substantially the same as those in the original complaint. Gauna fails to demonstrate that she can amend her first amended complaint to state a cause of action for fraud and deceit, breach of contract and violation of Business and Professions Code section 17200 et seq.

Gauna’s appellant’s opening brief “seeks the right to add claims for Promissory Estoppel, Intentional Misrepresentations, Negligence, and Tortious Interference.” We need not consider her request because it is not supported by legal analysis and citation to authority. (Okasaki, supra, 203 Cal.App.4th at p. 1045, fn. 1; Keyes, supra, 189 Cal.App.4th at p. 656.)

VII

Gauna further contends the trial court erred in hearing defendants’ demurrer before her discovery motions. She filed motions to compel further discovery responses and for monetary sanctions against defendants after the trial court sustained the demurrer to the original complaint. The discovery motions were set to be heard after the deadline for Gauna to file a first amended complaint. But the parties stipulated to continue the hearing on the discovery motions as they attempted to resolve the issues raised in the motions. Thereafter, the trial court dismissed the action when Gauna failed to file an amended complaint, and it took all hearing dates off its calendar. The trial court subsequently vacated the judgment of dismissal.

In the meantime, defendants notified the trial court they would demur to the first amended complaint and asked that Gauna’s discovery motions not be re-calendared until after the trial court heard the demurrer. Gauna asked that her discovery motions be re-calendared. The trial court directed the court clerk to file Gauna’s first amended complaint and set a hearing on her discovery motions for September 26, 2014. But defendants filed their demurrer to the first amended complaint and the hearing on the demurrer was set before the hearing on the discovery motions. After sustaining the demurrer to the first amended complaint without leave to amend, the trial court dropped the hearing on the discovery motions as moot.

We review the trial court’s scheduling decisions for abuse of discretion. (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1130; see Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 1004.) Here, the record does not show that the trial court abused its discretion in setting the order in which it would hear the parties’ motions. There is no reporter’s transcript or other document indicating the trial court’s reasons for scheduling the hearing dates. Gauna fails to demonstrate error. (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)

DISPOSITION

The judgment is reversed regarding the wrongful foreclosure cause of action. It is also reversed regarding the cancellation of instruments cause of action as it pertains to the assignment of the deed of trust, the notice of default, the substitution of trustee, the notice of trustee’s sale, and the trustee’s deed upon sale. In addition, the judgment is reversed regarding the slander of title cause of action as it pertains to the recording of the notice of default, the notice of trustee’s sale, and the trustee’s deed upon sale. The judgment is otherwise affirmed. Gauna shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

DUARTE, J.

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From Our Friends at Living Lies Weblog


URGENT REQUEST! California Court attempting to Bury Decision!!! Don’t allow Guliex v. PennyMac to go unpublished! Act Today!
7h ago

California Fifth Court of AppealsGuilexguilex v pennymac

Unfortunately it is not uncommon for courts to skirt the rules in order to protect the banks if they can get away with it. It is up to California attorneys and homeowners nationwide to contact California’s Fifth District Appellate court and request that the Guliex case be published. YOU almost didn’t have this opportunity because it appears the court attempted to end the submission window six-days early !

We need all HOMEOWNERS and FORECLOSURE ATTORNEYS NATIONWIDE to HELP get this case published!

Homeowners, PLEASE write the Court at the address below TODAY (or use the template) and request that Guliex v. PennyMac be published. Attorneys and registered pro se litigants can file electronically through the court’s TrueFiling.com system.

Letters should be mailed TODAY or possibly MONDAY if you live in California to be received by the Tuesday, August 1st deadline.

Electronic filings are accepted up until Tuesday.

Originally the court had issued an order stating that no more letters requesting publication of Guliex would be accepted. Apparently after public outcry, the court clerk stated they would now accept requests to publish until Tuesday, August 1st, 2017.

On July 12th, 2017 the California Fifth Appellate Court issued an unpublished opinion in Guliex v. Pennymac Holdings, a case that may potentially benefit homeowners nationwide who are litigating illegal trustee sales and Chain of Title issues.

The Rules of the Fifth Appellate Court permit 20 days for attorneys and citizens to request publication of the case by submitting letters to the court. The court originally incorrectly listed the deadline as July 27th when the deadline should have been August 1st, 2017. Thus, the court clerk shut down requests for publication SIX days prematurely.

The Appellate court also issued the opinion that the Guliex decision, “does not establish a new rule of law, nor does it meet any of the criteria set forth in California Rules of Court, rule 8.1105(c).”

WHAT? REALLY? The decision likely doesn’t meet the court’s publication criteria because it actually benefits the Homeowner, not the Bank for a change!! Apparently Homeowners fighting foreclosure and hostile courts must also fight judicial CENSORSHIP if they prevail, in addition to the other abuses and injustices they confront at every judicial juncture.

Unfortunately, this is one more attempt to silence victims of fraudulent foreclosure and the attorneys who defend them. The Guliex case is important because the court actually complies with the rule of law it established in its own jurisdiction.

Common sense decisions regarding wrongful foreclosure are infrequent and typically eroded or overturned. Yvanova, one of the finest decisions on the importance of standing, was decimated by the Saterbak ruling. A favorable precedent that adheres to the rule of law must be allowed to stand. We must be vigilant and our voices united.

Please write a simple letter, or copy the template below and mail it TODAY requesting that the court publish the Guliex decision. The request for publication should not exceed 2 pages.

(Hat tip to Charles Cox for composing the content of this letter). Please edit as desired.

Fifth District Court of Appeal
Request for Publication, Case No. F073142
Attn: Honorable Brad Hill, Presiding Justice
2424 Ventura Street
Fresno, CA 93721

Subject: Request for Publication

Guliex v PennyMac Holdings LLC

Court of Appeal No F073142 filed July 12, 2017

Opinion cited as 2017 Cal App Unpub Lexis 4742

REQUEST FOR PUBLICATION OF OPINION

Dear Justices of the Fifth Appellate District of the California Court of Appeal,

Pursuant to California Rules of Court (“CRC”), Rule 8.1120(a) et seq., I am writing to respectfully and timely request certification for publication of the Court’s entire Opinion, or in the alternative, partial publication of Parts I. et seq. and II.B., for the case captioned above.

My interest in this request relates to the engineered attacks upon home ownership by unauthorized intermediaries engaged in self-help that is California’s non-judicial foreclosure process; and the application, interpretation, clarification and addressing of the facts in this instant case by the Appellate Court and its distinguishing other holdings involving legal issues of continuing public interest as well as clarification of certain specifics related to this field of litigation as the Opinion(s) may apply to other cases more readily once published.

The Opinion meets the standard for publication as authorized by CRC, Rule 8.1105(c) which provides that an opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:

(1) Establishes a new rule of law;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(5) Addresses or creates an apparent conflict in the law;

(6) Involves a legal issue of continuing public interest;

(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

I contend the Court’s well-reasoned Opinion contained therein accordingly satisfy sub-sections 1, 2, 3, 4, 5, 6, and 8 as referenced above more specifically related to Sections I. sub-sections B, C, and D.

Section I.B. The Opinion clarifies that a homeowner “…has standing to challenge a foreclosure by an unauthorized entity.” Further, the Opinion clarifies that although a superior court may take judicial notice of documents that have been publicly recorded at a county recorder’s office, the “disputed or disputable” factual content of recorded documents is inadmissible hearsay. This meets the standard for publication per CRC, Rules 8.1105(c)(2, 3, 5, 6 and 8).

Section I.C. The Opinion establishes a new rule on the analysis of a chain-of-title as reflected documents publicly recorded at a county recorder’s office; as well as the analysis of each link in the chain-of-title as to whether a document can establish an unbroken or perfect link in the chain. The Opinion further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 6 and 8).

Section I. D. The Opinion establishes a new rule by distinguishing the two illegal types of wrongful foreclosures: procedural irregularities v. unauthorized foreclosure. This is an important opinion for these cases not previously popularized by other opinions clarifying the question of whether and/or when a homeowner must allege tender and/or prejudice. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 5, 6 and 8).

Based on the foregoing, I respectfully request this Honorable Court publish the above referenced Opinion.

Respectfully submitted,

We encourage readers to post copies of the letters mailed to the court in the comments section of this post. Just to keep the courts honest!

Thank you to California Attorney Charles Marshall, Eva Sutton and Celia Salazar for their efforts to publish this important opinion.

Livinglies Blog, Neil Garfield, At the Request of Eric Mains, Former FDIC Employee “Acceptable Casualties”

Eric Mains: “Acceptable Casualties”
Posted on March 25, 2015 by Neil Garfield
https://livinglies.wordpress.com/2015/03/25/eric-mains-acceptable-casualties/

At the request of Eric Mains, former FDIC employee, I am publishing his comments on the foreclosure situation and the the banking crisis.

ACCEPTABLE CASUALTIES
I thought quite a bit about what I would say regarding the experience of battling with a large bank for the last 6 years in a foreclosure action. One could complain about the forgery, the fraud, the denial of due process and equal protections under apathetic state court system(s), the shifty attorneys, etc. One could, but frankly it’s not worth the time or waste of space writing about it in just my particular case. You can read the complaint(s) I filed in both State and Federal court, read the trial transcripts, and draw your own conclusions as to the whole situation and legalities.


What is remarkable to me, and what is worth discussing, is not that my case has been the exception to large bank conduct in foreclosure cases, but how all too common it is. Now in hindsight, I am sure corporate counsel for Chase (and Citibank) is going to sternly chastise the law firm(s) involved for not checking into my background enough to realize I worked for the FDIC, in the division that closed down WAMU (after all it is all public information, along with our grade level and salaries). However, in their defense, they did do a pretty good job of keeping hushed up that they were employed/contracted with/ Black Knight (formerly LPS). LPS, for those not familiar, helped robo-sign loan documents and paid out a $120 million settlement with various state attorney general’s offices back in 2013. All in all though, I think most people would agree that mine is the better surprise. In any case, it is hardly shocking for anyone who reads the news to be aware that the banks have been involved in robo-signing and other creative activities to push through foreclosure cases, even after paying millions of dollars in fines to regulators and AG’s offices who gladly accepted their money. The thing that seems to attract the media’s and public attention is the robo-signing and fraudulent documents, and the focus tends to be solely on the HOW of it all being done. When the media does bother to pay attention (which sadly is very rarely, but we will get to that shortly) they don’t delve into the WHY of it being done. They need to, as that is the real story. It is the one that every homeowner and non-homeowner needs to be informed about.

If one digs deep enough, then one will realize why the financial crash of 2008 never went really away, regardless of claims to the contrary. The symptoms of the crash have been eased by the sheer amount of money being tossed at banks through programs like TARP and by mortgage bond buying by the Fed, but the cancer is still there. It does not take one long to realize that with fraud and forgery running rampant as it was in 2002-2008, that you can’t really “fix” an underlying 30 year residential note and mortgage that is already most likely fatally defective. You can’t assign something that was designed to have been assigned to a REMIC trust 90 days after closing (per IRS rules and the Trusts own PSA) and do it years after the fact… actually, you can try, it will just cause your investors to lose their tax exempt status and tick them off. Hence, we have a lot of lawsuits that talk vaguely about the “quality” of the investments, the “misrepresentations” of the Sellers, etc. Quite frankly it is time to put away the euphemisms and call what happened what it is. The “investors” (as in my case, whoever they may actually be) are suing because in a majority of the cases the “loans”, their “investments”, were simply never legally delivered to them. To put in nicely, they don’t hold jack squat. They are suing the bank “Servicers” involved, and the “Trustee’s”, because they did not do their jobs and now the problem simply cannot be fixed (at least not without first admitting that there is a problem). They need to work with the government and homeowners to fix the problem correctly, but it seems everyone involved have decided illogically that the homeowners are not involved in the equation. Now if you noticed all the “”quotation marks”” there is a good reason for that. You cannot be an investor in an investment that was never delivered to you. You cannot be a servicer on a loan that was not delivered to the entity you claim to be servicing it for. Nor can you be a Trustee for an insolvent Trust that does not hold any corpus. What the banks, government, and various agencies apparently have done for the last 8 years is use legal fiction to pretend the transactions have occurred. They have allowed the banks to account for transactions that are stated to have occurred, regardless it seems, in face of the facts.

That is part of the WHY of the situation. It is hardly controversial topic in that multiple writers have discussed securitization fail (as Adam Levitin has put it) in recent years. One can’t blame the government for its initial reaction to the crisis when it began in 2007-2008, knowing what they knew at the time. The REMIC Trusts, which are supposed to hold a majority of homeowner loans, are hopelessly cross collateralized and cross defaulted, covered by hedges, swaps, insurance policies, etc., affecting parties too numerous to count. I am sure when summit meetings between the largest banks and regulators were held, they realized the underlying issue. It was not simply that the banks or investors were going to lose money (or collapse) because homeowners were going to default on their loans, it was the huge tangle of commitments that had been made regarding loans and homeowner payments that threaded through multiple parties. This tangle was never disclosed or discussed with homeowners, even though it was central to their loans and should have been disclosed under Federal regulations such as TILA, RESPA, and REG Z. Banks and regulators hold the position the securitization does not involve the homeowners; that it is an investor to seller issue, and homeowners are third party interlopers. This is where one, again, must call a very loud and emphatic, B.S.


Imagine if a mortgage broker had told a soon to be homeowner in 2007, ” By the way, just so you know, your loan may currently involve— or will very soon involve— a potential undisclosed third party. You will not be dealing with a traditional bank to homeowner loan if that is what you are expecting from this loan contract which you will be obligated under for the next 30 years to submit a large portion of your income under. Your “bank” will merely be a servicer in the transaction, and will in fact be incentivized to NOT work with you should you run into financial trouble in the next 30 years. This is because of fee’s that were not discussed with you that your bank (now “servicer”) will make if your loan starts to default. There are probably fees involved in this transaction that effect the pricing your loan that even I as broker am not aware of due to this structure…… But let’s skip that for now. Anyway, your bank will actually be incentivized through fee’s to see that you do go into default, rather than modify your loan or help you. Your loan payments are going to be so hopelessly commingled after you submit them, sliced, diced, and sent to other parties you never envisioned (and with insurance payments and cross collateralizations of your payments and your home as security for this transaction to boot) that a Rubik’s cube will seem easy in comparison to untangling the mess. By the way, this process involves shoddy processes we have already become aware of as mortgage broker(s), but we can’t even keep up with the demand for buying these loans from Wallstreet. So to the extent there might be forgeries or other problems that might affect title to your loan and home should you ever want to refinance it, sell it…… or Heck, if you ever buy one of them involved with one of these transactions, you might be screwed. But Hey, just ignore that for now! Oooops! Almost forgot, your monthly loan statement, which purports to reflect the transaction and payments you are giving monthly on your loan….. Yep, that will be a legal fiction, and not accounted for accurately. It will supposedly reflect the money that is going to the undisclosed third party that is supposed to be receiving your loan payments, but in fact the Trustee claiming ownership (on behalf of the undisclosed third party investors to your loan) does not audit or claim to know the veracity of the information and accounting for your payment as provided by the bank you thought was your lender (but who is now in fact your servicer). Now this matters, because perversely enough, when this party comes forward and claims to be damaged should you cease to make payments you can no longer afford to make, they may in fact still be receiving payments known as servicer advances from your servicer. These come out of the massive fees he is making from your commingled pool of loan payments. Yep, the claimed holder of the rights to your loan payments may not have even been damaged at all. Your bank, as servicer, may also have sold your loan and information multiple times, collected insurance payments and other compensation from your loan contract that it has not disclosed to anyone, even the Trustee claiming to hold your loan, so in fact they have been unjustly enriched as to you and the investors………Got it so far? Now, this is the kicker, and Trust me, you will love this part!!! The only one that will have been monetarily cheated will be you, but they will still claim they have been damaged and try to foreclose on your home in court and thereby double dip on their profits. Should you argue or try to get to the bottom of the transaction in court by exercising your due process rights, you will be painted as a deadbeat, someone trying to get a “Free House”, and shamed to the point of a possible full blown depression and suicide. Heck of a process, wouldn’t you agree? Now just sign, here, here, and here….”

Would the borrower have entered into that transaction with full disclosure? Was there a meeting of the minds between all known parties if he did sign? These are things that hundreds of years of laws regarding real estate and contracts, including the statute of frauds, cover and don’t look favorably on. The Banks will claim this was a buy –sell transaction, the funding of a loan occurred using their money (or table funded in some instances), and that the loan was then sold to the REMIC Trust. If we are finally allowed to look under the sheets, what we are likely to find is that the REMIC was in fact NEVER funded, that the banks pooled the investor money and funded the transactions directly, skipping the REMIC’s altogether. Simply put, the REMIC Trust entity claiming to be holding your loan, or foreclosing on it, never purchased your loan on top of not having been legally assigned the loan documents for the transaction.

Think that is an exaggeration as to what happened and is happening? If so, I urge you to read back over my case and others. Look into the ones where, sadly, an out gunned and on the ropes borrower did end up committing suicide out of despair after being denied any answers, recourse, or justice out of systems that should have been there to help them. Other families just ended up on the streets, or in shelters, or had their lives ruined in multiple other ways. These are the ones the state and Federal governments failed. The court system failed homeowners, the AG’s failed them, and the major media outlets most certainly have failed them. There are undoubtedly many in the media who understand and know what is occurring, but choose to act like collective group of officer Barbrady’s with a, “Move along, nothing to see here”, because of potential loss of advertiser revenue and lawsuits. Think their editor’s would not stop them from running such a story? Watch the movie The Insider with Russell Crowe, which ironically was based on what happened in my metro with the tobacco industry, to understand just how badly what should be disclosed by an open and free press can be suffocated. In this whole mess, homeowners have been deemed to be acceptable casualties, collateral damage, because they are not economically important to the institutions that should be helping to fix the situation.


The above is the WHY to a great extent, so what should be done? I can only offer opinion, but I think the SCOTUS recently offered homeowners, courts, and the government a good way out of this mess with the recent Jesinowski decision. The court affirmed that Homeowners who choose to rescind their loans under TILA WILL, not should, but WILL be set back into the position they were in before the transaction occurred. Even under the common law recognized right of rescission, which is less homeowner friendly, the law recognizes the parties right in an un-bargained for or fraudulent transaction to be set back to the point they occupied before the transaction occurred. It should not be, and is not the Homeowner’s, the court’s, or the government’s duty to perform an accounting for the transaction that the banks claim occurred with respect to the payments, selling, and servicing of the borrowers loan. If they cannot account for it, if they cannot show how they were damaged, if they cannot prove chain of title, then it is a speculative transaction and loss. The court can decide upon the equities of the situation after all the facts are presented, but the banks that lack the evidence to prove the preceding, by law, walk away without the home or any money from the homeowner. That would not be fair or equitable you say? That would be moral hazard? If you understand any of what has come to light in the last decade regarding these attempted, but botched, attempts at securitization then you understand that there is a good chance the banks actually made undisclosed profits or other offsets on the borrowers contract. What is occurring is that they are probably trying to double dip, not recoup a loss. If you add all the offsets and profits up, the underlying contract has probably been satisfied, and equity and the law do not allow for the confiscation of your home because it harms popular and uninformed sentiment as to what has occurred in that homeowners case. Period.


Second, it is very hard to defend oneself in court and get to an equitable remedy if the government institutions that are supposed to protect us don’t allow access to information. When they instead leave the institutions that are actively defrauding homeowners to police themselves, you are asking for problems. For instance, a question for the state AG’s in the LPS settlement, and other settlements…. When was the last time you posted a list of the loans foreclosed on (or in foreclosure currently) in your states that involved a firm involved with your robo-signing settlement? You have CONSENT ORDERS in hand, and you have access to these lists of loans (Just read the terms of your consent order). You have names of suspect robo-signers IN HAND. Out of the millions of dollars you collected, how hard would it have been to REQUIRE someone to post the most basic information regarding these transactions to a website, to REQUIRE the banks attorney’s to disclose that they used LPS or others to the court? To opposing counsel?……especially as these firms will claim, and by the terms of THEIR SIGNED CONSENT ORDERS, that they have gone back and cleaned the mess up? Also, Why so Gung Ho to go to the trouble of providing defaulting homeowners the right to attend pre-foreclosure settlement meetings, without ALSO trying to ensure that the parties involved actually belong in the meetings in the first place? Can the bank on the other side of the table even legally modify the homeowners contract? Why not loudly inform homeowners of their right to rescission under TILA? Why not this, and a lot of other remedial action that would help to ensure that homeowners attending the meetings are not being once again victimized? Well, it may be that receiving millions of dollars (in sometimes questionably allocated settlement money) tends to cloud ones vision……. it may be that forcing homeowners into settlements that may, or may not be, in the homeowners best interest saves the court system a whole lot of work through caseloads they would otherwise have to deal with…… and it may be that campaign contributions and other forms of influence tend to grease the wheels of justice, causing laws and rules of procedure to start to be ignored. FYI, just in case the media gets really curious, maybe they want to take a gander at some of the entities set up to help struggling homeowners with their loans or seek “counseling”…. Who sits on the boards? Notice any large banks predominating said entity? Not that there could be any potential conflict of interest with having an institution that may be defrauding (potentially) a homeowner sit on said board, ones who really might not want a homeowner to be aware of their rights, or the true facts underlying the contract they entered into…. but it does bring a caution with it. There can be no doubt that home counseling services have helped homeowners in struggling situations, but there can also be no doubt that the homeowners may have not been getting the full picture of their options in certain instances.

For those who might wonder, given my occupation, do I somehow hate banks, or what is my particular beef? The answer is NO. Banks are corporate entities like any others, they have thousands of good, intelligent, and caring people that work for them and who help borrowers. I could go schlepp for Chase Bank, Wells Fargo, Citibank or others, if I knew that they were being run by people who were not involved in the activities described. The problem is NOT “The Banks” as corporate entities. It’s that the culture and their adherence to laws and what is acceptable, flows from THE TOP DOWN. This goes for our regulators too, who operate in a revolving door system at the top. Greed and human nature being what it is, that is why we have regulations that are supposed to check our impulses to make bad decisions. However, herd mentality often makes the good choice a hard one to make, lines start to blur when you are about to score a multi-million dollar paycheck. I am not going to hold the moral high ground in writing all of this and in terms of being a flawed individual, as I have made plenty of screw ups in my past from DUI’s, to past due taxes, to just generally being a douchebag on certain occasions. However, I think most people are willing to forgive others flaws, as most people understand that others usually stop themselves at the point where their flaws and bad decisions might start to cost people their homes, their health, and the most basic rights we expect as Americans. My “beef” is that the board members and CEO’s of the largest banks have apparently ripped out their douchebag inhibitors, thrown then on the ground, stomped on them, then pissed on them for good measure. Their own employees and shareholders should expect, and deserve, MORE. The public deserves more. The regulators and AG’s should ENFORCE and REQUIRE more of the top management, or clean house in the form of prosecutions and consent orders when they do not. This has not happened, partly because of the illusion and threats from said banks that they will somehow take down the world economies (oooooohhh, burr, shiver) if they are effectively regulated in a way that ensures they act in an expected fashion. I have no doubt the management of the large banks thought they were justified in taking some of the actions that they did during the crisis, and indeed did so with the governments tacit consent in order to stave off the larger disaster about to happen. However, we are far enough removed from the crisis now (even though it is not gone), that the basic rule of law and consumers rights needs to be given more focus, not less. I can’t say much more. What is being allowed to occur is rotting out the heart of American business, people’s faith in banks and the government, and therefore is effecting the stability of the financial markets. It simply has to stop. Think not? Just ask a college student today if he thinks he should be required to take a course on business ethics? He will probably think it is the punchline to a joke. Why shouldn’t he? All he knows is that those who commit crime are not punished if they have enough money and power, and the government will not act unless embarrassed or called out by the media and public to do so (and even not then sometimes). If we are willing to forego our most basic constitutional rights in the pursuit of profit, and what we have laughingly twisted the word capitalism to mean, then we are quite simply and factually done for as a functioning democracy. This should scare EVERYBODY, and if not, all broadcasts of Honey-Boo-Boo, Duck Dynasty, and the Kardashians should stop, until the greater public does figure out why they should be scared. That is all I can impart as to my view of the situation, hopefully it proves to be worthwhile to those reading this. In either event, I have a sheriff’s sale to attend tomorrow, one of many as I understand it……