Filed 1/5/18 Lucas v. Deutsche Bank National Trust Co. CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


ANDREA E. LUCAS et al.,

Plaintiffs and Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY et al.,

Defendants and Respondents.


G053165

(Super. Ct. No. 30-2013-00651662)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed.
Law Office of Ronald H. Freshman and Ronald H. Freshman for Plaintiffs and Appellants.
Wright, Finlay & Zak, Robin P. Wright and Joan C. Spaeder-Younkin for Defendants and Respondents.
* * *
This action arises from an attempted foreclosure of a home. Plaintiffs executed a deed of trust securing a loan on the home. They failed to make the required payments, and foreclosure was scheduled. But prior to the trustee’s sale, plaintiffs sued, asserting a number of causes of action mostly premised on the claim that the promissory note and deed of trust were void. The court granted summary judgment in favor of defendants, and plaintiffs appealed.
The judgment is presumed to be correct. It is an appellant’s duty to affirmatively demonstrate error. In pursuit of that goal, an appellant has certain obligations, the breach of which may waive arguments on appeal. An appellant’s brief must contain a statement of the relevant facts, together with specific page citations to the record to support those facts. (Cal. Rules of Court, rule 8.204(a)(1)(C), (a)(2)(C).) The longer and more complex the record, the more strictly will a court hold an appellant to that duty. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.)
Here, the record consists of 27 volumes of an appellants’ appendix—over 8,000 pages of documents. Plaintiffs’ statement of facts, by contrast, is less than two pages, makes no attempt at a coherent narrative, is located toward the end of the opening brief, and contains not a single citation to the record. The rest of the brief is not much better. The bulk of the brief is a disjointed list of 42 alleged errors, bereft of any context or meaningful analysis, many of which are merely generic assertions of errors the trial court made (e.g. “The Trial Court erred in finding that Respondents met their burden to show that there were ‘no triable issues of disputed fact as to all of the material allegations of the second amended complaint’”). We hold most of these issues are waived. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.”]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590 [“By failing to support the factual assertions in their legal arguments with citations to the evidence, plaintiffs have forfeited their argument the court erred in granting summary judgment. [Citation.] In reviewing a ruling on a motion for summary judgment, ‘de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues.’”].)
There are, however, two issues that are sufficiently briefed to warrant consideration. First, plaintiffs contend the lender named in the original promissory note, “Porchlight (dba Family Trei, Inc.) a Corporation,” did not exist because the only entity listed on the California Secretary of State Web site resembling that name is “Porchlight, Inc.,” with no “dba Family Trei, Inc.” listed. Thus they contend the original promissory note is void. Second, plaintiffs infer from an expert report that the promissory note and deed of trust are forgeries. We find neither inference warranted by the evidence, and thus we affirm the judgment.

FACTS

In March 2007, plaintiff Barbara Bausch obtained a loan in the amount of $1,080,000 (the Loan). The Loan was secured by a deed of trust encumbering real property in Newport Beach, California, which was recorded in March 2007 with the Orange County Recorder’s Office. In addition to Barbara, plaintiffs Andrea Lucas and Jack Lucas were named on the deed of trust. The Loan was meant to pay off an existing first loan against the Newport Beach property in the amount of $764,078.83 and a second loan of $131,997.15. Those earlier loans had been taken out to finance a new business enterprise by Andrea and Jack called “Up Your Average.” Around the same time, Barbara took out a loan of $895,000 secured by a different property (not at issue in this appeal). Approximately $300,000 of those proceeds were used to fund Up Your Average. In addition to the loans, Barbara incurred more than $217,000 in credit card debt to fund Up Your Average. Similarly, Andrea and Jack incurred more than $200,000 in unsecured debt from various sources to fund Up Your Average. Later, in December 2007, Barbara took out another loan on the Newport Beach property in the amount of $250,000 to fund Up Your Average (this loan is not at issue here). Up Your Average never turned a profit.
The lender named on the Loan documents is “Porchlight (dba Family Trei, Inc.), A Corporation.” At the time the Loan was originated, there were validly registered entities named “Porchlight, Inc.” and “Family Trei, Inc.” That same month, a corporation assignment of deed of trust was recorded, evidencing the transfer of the beneficial interests under the deed of trust to defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for IndyMac Bank, FSB (IndyMac) and its successors and assigns. In April 2007, the Loan was securitized and sold through a series of transactions to defendant “Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2007-AR11” (Deutsche).
In July 2008, IndyMac was closed by the Office of Thrift Supervision and the Federal Deposit Insurance Corporation was appointed conservator. “All non-brokered insured deposit accounts and substantially all of the assets of IndyMac were transferred to IndyMac Federal Bank,” FSB (IMFB).
The payment on the Loan was to be $5,737.50 per month for the first five years, and then would increase on a stepped up basis. In 2008, Barbara became delinquent on the Loan. Later that year, Barbara obtained a loan modification from IMFB, which reduced the payment to $4,901.30 per month for the first five years. Barbara, as the sole borrower under the Loan, gave Andrea written authorization to work with IMFB on the loan modification application process. A new loan number was assigned to the modified Loan. The resulting modification agreement specifically stated that the existing Loan documents were valid, binding, and enforceable. Andrea immediately began making the required payments pursuant to the loan modification agreement.
In March 2009, defendant OneWest acquired substantially all of IMFB’s assets, including the servicing rights to the Loan. Notice of the transfer was sent to Barbara in April 2009. After the transfer, Andrea continued making payments without interruption.
In September, 2009, Up Your Average ceased operations. In December of that year, Andrea and Jack filed for bankruptcy. They listed the Loan as an uncontested debt in the hope it would be discharged. It was not discharged, however, and Andrea continued to make payments on the loan.
In July 2010, Barbara filed for bankruptcy. Her unsecured credit card debt was discharged. The Loan was not.
In July 2012, Andrea called IndyMac Mortgage Servicing, a division of OneWest (IMMS) to discuss a possible second modification of the Loan. Ultimately, her application for a modification was denied because the Loan was not delinquent. Afterwards, Andrea stopped making payments. In December 2012, Andrea submitted an application to modify the Loan to IMMS on behalf of Barbara. The balance of the Loan was too high to qualify for modification through the Home Affordable Modification Program (HAMP). A representative from IMMS subsequently told Andrea that no modification programs were available for the Loan. Andrea and IMMS discussed alternatives such as short sales and deeds in lieu of foreclosure, but Andrea responded that she wanted to keep the house. In January 2013, Andrea made one last payment on the Loan, but could not cure the entire deficiency.
In March 2013, a substitution of trustee was recorded, whereby defendant Meridian Foreclosure Service (Meridian) was substituted for OneWest as attorney in fact for Deutsche. Around the same time, an assignment of deed of trust evidencing the transfer of the deed of trust from MERS to Deutsche was recorded. That same month, Meridian recorded a notice of default. In July 2013, a notice of trustee’s sale was recorded, setting the initial sale date for July 26, 2013, but the sale was postponed. Andrea and Barbara continued to reside in the property. Plaintiffs did not tender the amounts due under the loan.
Plaintiffs filed the present action in May 2013. The verified second amended complaint asserts causes of action for declaratory relief, violation of Civil Code section 2924.12 et seq., negligent misrepresentation, fraudulent inducement, violation of the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.), intentional infliction of emotional distress, and quiet title. The named defendants were Meridian, Deutsche, OneWest, MERS, and Ocwen Loan Servicing, LLC.
Defendants moved for summary judgment. The gist of the argument was that plaintiffs’ losses were due entirely to their overleveraged business failings, that the loan was valid, and that defendants’ loss mitigation efforts had been proper. Defendants also argued plaintiffs were estopped from asserting the invalidity of the Loan based on the language of the Loan modification agreement, which affirmed the validity of the Loan. The court granted the motion for summary judgment.
As to the declaratory relief cause of action, the court concluded Porchlight, Inc., was a valid entity and was the lender. “Plaintiffs do not contest the loan was in fact issued, or that they received funds from the loan that allowed a refinance of prior existing mortgage loans and a cash payout. Plaintiff Barbara Bausch and Plaintiff Andrea Lucas testified they understood Porchlight to be the lender. Plaintiffs have presented no evidence that the note, deed of trust, or notice of default were improper or an inaccurate reflection of Plaintiffs’ understanding of the loan.” The court also held plaintiffs were estopped from asserting the invalidity of the Loan because Barbara refinanced the Loan and affirmed its validity, and also plaintiffs listed the Loan as a debt in their bankruptcy filings.
As to the statutory cause of action (Civ. Code, § 2924.12 et seq.), the court held any failure to provide copies of the Loan documents to plaintiffs was immaterial because there were several communications between Barbara and OneWest regarding foreclosure. “On these facts, Barbara Bausch had ample notice of the impending foreclosure and any violation is not actionable.”
As to the negligent misrepresentation and fraud causes of action, the court held there was no evidence demonstrating that OneWest advised plaintiffs to intentionally skip payments to become eligible for a modification, nor any other misrepresentation.
As to the Business and Professions Code section 17200 claim, the court held this claim was dependent on plaintiffs’ claim that the Loan was void, which the court had already rejected.
As to the intentional infliction of emotional distress claim, the court held there was no evidence of outrageous conduct.
Finally, as to the quiet title claim, the court held that plaintiffs’ missed payments validated defendants’ adverse claim to the Newport Beach property.

DISCUSSION

The purpose of summary judgment is to resolve litigation by avoiding needless trials. (Ferrell v. Southern Nevada Off–Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313.) Code of Civil Procedure section 437c, subdivision (c) provides, “summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “A party may move for summary adjudication as to one or more causes of action . . . if the party contends that the cause of action has no merit.” (Id., subd. (f)(1).)
A defendant may bring a motion on the ground there is a complete defense to the action or the plaintiff cannot prove one of the required elements of the case. (Code Civ. Proc., § 437c, subds. (o)(1)-(2), (p)(2); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) If defendant meets that burden, the burden shifts to the plaintiff to produce evidence there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Caldwell, at p. 203.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review a summary judgment de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Plaintiffs’ principal contention on appeal is that the initial loan document was void—and thus could not be assigned—because the named lender did not exist. Apparently, their theory is that a different bank was the true lender who lent the money even though its name was nowhere on the loan documents. We have already mentioned the only “evidence” for this remarkable theory: the lender named in the original promissory note, “Porchlight (dba Family Trei, Inc.) a Corporation,” is not listed on the California Secretary of State Web site. What is undisputedly listed, however, is “Porchlight, Inc.,” without the “dba Family Trei, Inc.”
This is not substantial evidence that the named lender never existed. “Inc.” is an abbreviation for “incorporated.” (Black’s Law Dict. (7th ed. 2014) p. 763.) “Incorporated” is defined as “formed into a legal corporation.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 588.) We fail to see any significant difference between “Porchlight . . . a Corporation” and “Porchlight, Inc.” Certainly, that is insufficient evidence on its own to prove “Porchlight . . . a Corporation” never existed. Moreover, the fact that plaintiffs indisputably received the Loan funds strongly suggests the lender named in the loan documents actually existed.
Plaintiffs’ next contend the promissory note and deed of trust were forgeries. They rely on an expert report, but read too much into the conclusions of that report. The expert in question examined the documents that were supposedly the original promissory note and deed of trust. The expert opined that they were not wet-ink originals, but instead were photocopies. The expert also noted that some of the signatures on the documents appear to have been digitally produced.
The fact that the loan documents may be facsimiles rather than wet-ink originals does not prove they were forgeries. Nor does a digital signature prove a forgery. Evidence Code section 1521, subdivision (a), states: “The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. (2) Admission of the secondary evidence would be unfair.” Here, plaintiffs do not identify any particular terms of the Loan documents that are in dispute. Nor is there any other unfairness in admitting a photocopy. Ultimately, it is beyond dispute that plaintiffs entered into the Loan, made payments on the Loan, modified the Loan, and acknowledged the Loan in bankruptcy proceedings. Thus there was no error in admitting and relying on photocopies of the Loan documents.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs incurred on appeal.



IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.