Filed 8/24/18 Wilmington Trust, N.A. v. Zbitnoff CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Anna Zbitnoff appeals following the trial court’s order granting plaintiff Wilmington Trust’s motion for judgment on the pleadings on its complaint for quiet title and other claims. We affirm.

BACKGROUND

Wilmington Trust filed the underlying verified complaint against Defendant and others.[1] The complaint identified certain real property (the Property) and alleged Wilmington Trust “was the beneficiary of a mortgage secured by the Property, and is currently the owner of the Property.” The complaint alleged Wilmington Trust acquired title to the Property after making a credit bid at a foreclosure sale, and attached the recorded trustee’s deed upon sale (Trustee’s Deed) as an exhibit. The complaint alleged fraudulent documents had been executed and recorded by Defendant and others which clouded Wilmington Trust’s title to the Property.[2] The complaint sought to quiet title and cancel the allegedly fraudulent documents, and further sought damages for slander of title and declaratory relief.

Defendant’s verified answer admitted the foreclosure sale on the Property took place and the Trustee’s Deed was recorded. She also admitted executing and recording one of the allegedly fraudulent documents, although she denied any involvement in forgery or recording false instruments. The answer asserted several affirmative defenses, including that there was “no contractual relationship or agreement between the plaintiff or the plaintiff’s assignor and the defendant,” and “the plaintiff is not the original creditor.”

Wilmington Trust moved for judgment on the pleadings. It requested judicial notice of three recorded documents: a 2005 deed of trust signed by Defendant and naming Mortgage Electronic Registration Systems, Inc. (MERS) the nominal beneficiary; an April 2013 assignment of the beneficial interest in the deed of trust from MERS to Nationstar Mortgage, LLC (Nationstar); and a May 2013 substitution of trustee by which Nationstar substituted Sage Point Lender Services, LLC (Sage Point) for the original trustee named in the deed of trust. Sage Point transferred title to Wilmington Trust in the Trustee’s Deed. Wilmington Trust also requested judicial notice of records from two prior federal court cases filed by Defendant challenging foreclosure proceedings on the Property, one before the foreclosure sale and one after. The federal cases were filed against Nationstar, which was apparently still the beneficiary when the foreclosure proceedings began, and judgment was entered for Nationstar in both cases. Wilmington Trust’s motion argued, inter alia, the recorded Trustee’s Deed created a presumption that the foreclosure sale was valid, and the answer failed to allege any facts rebutting the presumption. It also argued Wilmington Trust was entitled to judgment on its cancellation and slander of title claims and sought an award of fees and costs on the slander of title claim.

The trial court granted Wilmington Trust’s motion, issued judgment for Wilmington Trust on all claims, and awarded damages against Defendant for slander of title.

DISCUSSION

A plaintiff moving for judgment on the pleadings must demonstrate “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) “The trial court’s judgment on the order granting a motion for judgment on the pleadings is reviewed independently under the de novo standard of review. [Citation.] ‘[W]e treat the properly pleaded allegations of [the] [answer] as true, and also consider those matters subject to judicial notice. [Citations.] “Moreover, the allegations must be liberally construed with a view to attaining substantial justice among the parties.” ’ ” (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196.)

“To prevail on a quiet title claim, a plaintiff must establish title to the property in dispute.” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195.) Defendant concedes that the foreclosure sale occurred and does not claim the Trustee’s Deed is fraudulent. Instead, her primary claim on appeal is that Wilmington Trust was not, at the time of the foreclosure sale, the beneficiary of the deed of trust entitled to acquire title to the Property by credit bid. In effect, Defendant contends the foreclosure sale was not conducted properly.

As Wilmington Trust argues, the recorded Trustee’s Deed creates a rebuttable presumption that the foreclosure sale was proper. “ ‘The purchaser at a foreclosure sale takes title by a trustee’s deed. If the trustee’s deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly . . . .’ ” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 814.) Defendant disputes this presumption, arguing Court of Appeal cases stating it are “likely to be overruled or disapproved by the California Supreme Court.” To the contrary, as the previous citation demonstrates, our Supreme Court has confirmed the presumption.

Because “a nonjudicial foreclosure sale is presumed to have been conducted regularly, . . . the burden of proof rests with the party attempting to rebut this presumption. [Citations.] Given the presumption of regularity, if [a debtor] contended the sale was invalid because [the foreclosing entity] had no authority to conduct the sale, the burden rested with [the debtor] affirmatively to plead facts demonstrating the impropriety.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 270, disapproved of on another ground by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13; accord, Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 14 [“Because it is presumed the nonjudicial foreclosure was properly conducted, [the plaintiffs] had the burden to plead ‘affirmatively’ facts showing Aztec lacked authority to record the notice of default.”].)

Defendant contends she did plead such facts, or should be granted leave to amend her answer to so plead, but the only fact relied on is the absence of a recorded assignment of the beneficial interest in the deed of trust to Wilmington Trust.[3] As Wilmington Trust argues, there is no requirement that such assignments be recorded. (Haynes v. EMC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336 [“where a deed of trust is involved, the trustee may initiate foreclosure irrespective of whether an assignment of the beneficial interest is recorded”].) Accordingly, this fact is insufficient to rebut the presumption of propriety. To the extent Defendant challenges Nationstar’s authority to initiate foreclosure proceedings or to assign the beneficial interest to Wilmington Trust, she similarly fails to allege or assert facts rebutting the presumption that the foreclosure sale was conducted properly. Accordingly, Defendant fails to demonstrate the trial court erred in granting Wilmington Trust’s motion for judgment on the pleadings with respect to the quiet title claim.[4]

In her opening brief, Defendant raises no independent challenge to the trial court’s order with respect to the remaining claims. For the first time in her reply brief, Defendant challenges the award of damages for slander of title. She forfeited the contention by failing to raise it in her opening brief. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“ ‘ “ ‘points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before’ ” ’ ”].) Contrary to Defendant’s argument, the invited error doctrine does not preclude our finding that Defendant forfeited the issue, nor does it render such a finding unjust. (See Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 [“ ‘Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.’ ” (italics added)].) Defendant offers no good reason for failing to raise the issue in her opening brief and we decline to exercise our discretion to excuse the forfeiture. We accordingly affirm the judgment with respect to the remaining claims.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.