Filed 4/3/18 Wilson v. Bank of America 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
----



MARK WILSON,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A. et al.,

Defendants and Respondents.
C080994

(Super. Ct. No. PC20130378)




Plaintiff Mark Wilson brought a wrongful foreclosure action against defendants Bank of America, N.A. (Bank of America) and ReconTrust Company, N.A. (ReconTrust). Wilson contends he was a part owner of property with Linda Catron. After Catron defaulted on her loan, defendants foreclosed. Wilson filed suit, arguing he was entitled to notice of the subsequent sale, the notice of sale was improper, fraudulent concealment, negligence, and violation of the automatic bankruptcy stay. The trial court dismissed Wilson’s first amended complaint without leave to amend. Wilson appeals. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Loan and Default
In February 2006 Catron borrowed $3,508,000 from a third party lender to refinance a loan on residential property she owned. Catron executed a deed of trust secured by the property.
In 2009 Catron began defaulting on her monthly payments. On May 5, 2010, in response to a notice of default, Catron filed a wrongful foreclosure complaint against Bank of America and ReconTrust. The trial court granted Bank of America and ReconTrust’s motion for entry of judgment in February 2011.
After Catron fell behind over $1 million in payments, ReconTrust recorded a notice of default on August 27, 2012. After Catron failed to cure the default, a notice of trustee’s sale was recorded on February 12, 2013, listing an unpaid balance of $4,971,455.21. The property was sold at a trustee’s sale to a third party for $2,695,000. The deed upon sale was recorded on March 15, 2013.
In April 2013, following the trustee’s sale, Catron filed a second wrongful foreclosure complaint against Bank of America and ReconTrust. The trial court sustained Bank of America and ReconTrust’s demurrer and dismissed the action with prejudice. Catron did not appeal from either dismissal.
Wilson’s Litigation
Three days prior to the trustee’s sale, Wilson learned about the sale from his agent. Wilson filed for bankruptcy on March 6, 2013, the day of the sale. Wilson claimed a partial interest in the property in the form of a quitclaim deed from Catron. According to Wilson, the quitclaim deed from Catron conveyed a 50 percent interest in the property to Wilson. The deed was not recorded.
On April 12, 2013, Wilson filed a complaint in bankruptcy court requesting damages because the foreclosure sale violated the automatic bankruptcy stay. Wilson also argued the foreclosure sale was void. In July 2013 the bankruptcy court dismissed Wilson’s complaint finding he was not eligible to be a debtor pursuant to title 11 of the United States Code sections 109(h) and 521(a).
Wilson brought the current action on July 16, 2013, seeking damages for Bank of America and ReconTrust’s failure to provide formal notice of the sale. Bank of America and ReconTrust filed a demurrer to the complaint.
Wilson filed a first amended complaint, alleging causes of action for negligence, fraudulent and negligent misrepresentation, conspiracy, and concealment. The complaint alleged that, faced with foreclosure, Catron quitclaimed 50 percent of her ownership interest in the property to Wilson. Wilson argued that, as a result of the deed, he should have received formal notice of the trustee’s sale since he owned a partial interest in the property and was entitled to notice under the nonjudicial foreclosure statutes. Wilson also contended Bank of America and ReconTrust undertook a duty through oral promises to provide him with notice. Finally, Wilson claimed his interest made him an assignee of a restrictive covenant agreement recorded on the property in April 1958 that entitled him to “notification of any pending offer/sale of the Property and a first right of refusal.”
Bank of America and ReconTrust filed a motion for judgment on the pleadings.
The Trial Court’s Order
Following oral argument, the trial court adopted its tentative order as its final order and dismissed Wilson’s complaint without leave to amend.
In its tentative order the trial court found: “[T]he adjudication of all claims of violation of the automatic [bankruptcy] stay would lie within the exclusive federal jurisdiction of the bankruptcy court. [Wilson] admits that while a temporary injunction was issued by the bankruptcy judge related to the sale of the property by the party that purchased the property at the trustee’s sale, there was never any final judgment or order on the merits finding that there was a violation of the automatic stay by sale of the subject property at the trustee’s sale and the bankruptcy action was dismissed. Therefore, there being no final judgment or order that finds there was a violation of the bankruptcy stay issued by the court with exclusive jurisdiction to make such a decision, [Wilson] has essentially admitted in the 1st amended complaint that he can not prove such violation as a ground for an award of damages due to an allegedly void trustee’s sale.”
The court also considered Wilson’s claim that he was entitled to notice of the sale. The court noted Wilson admitted that, for a significant period of time prior to the trustee’s sale, he had actual notice that foreclosure proceedings were pending. Nor did Wilson allege the quitclaim deed was ever recorded prior to the sale or that he requested special notice of the foreclosure proceedings pursuant to Civil Code section 2924b, subdivision (a). This failure to record the quitclaim deed or request notice was fatal to Wilson’s claim that he was entitled to notice.
Wilson also argued he had standing to maintain the action because he had filed a mechanic’s lien against the property. The court disagreed: “Assuming for the sake of argument only that the mechanic’s lien remains a valid lien despite the passage of time, merely recording a mechanic’s lien years prior to the initiation of nonjudicial foreclosure proceedings and years before the ultimate trustee’s sale does not give rise to any duty to serve notice on the party recording such a junior lien. Junior liens are subject to the request for notice statutory provision.” The court also found the negligence and conspiracy cause of actions also were premised on the existence of a duty to serve notice.
As for Wilson’s fraud cause of action, the court determined that Wilson failed to allege the names of the persons who made the alleged representations of postponement and rescinding of the March 6, 2013 sale, specific facts of reliance on these representations, or that his inaction was caused by the representations. The court found no reasonable possibility Wilson’s complaint could be amended to cure these defects and granted the motion for judgment on the pleadings without leave to amend.
Wilson filed a timely notice of appeal.
DISCUSSION
Standard of Review
A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for demurrer has expired. The rules applicable to demurrers apply to motions for judgment on the pleadings. (Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.)
The purpose of a demurrer is to test the sufficiency of the pleadings to state a cause of action as a matter of law. (Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 740.) We must assume the truth of all properly pleaded facts as well as those that are judicially noticeable. (Yhudai v. IMPAC Funding Corp. (2016) 1 Cal.App.5th 1252, 1255; Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561.) We are not concerned with the plaintiff’s ability to prove the allegations or with any possible difficulties in making such proof. Our review is de novo. (Kan, supra, at p. 740.)
Where, as here, the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff can cure the defect with an amendment. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 813.) If we find that an amendment could cure the defect, we must find the court abused its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Notice
Wilson contends Bank of America and ReconTrust had a duty to notify him of the trustee’s sale. He argues that, as successor to a partial interest in Catron’s property, the nonjudicial foreclosure statutes entitled him to notice.
However, Wilson never recorded the quitclaim deed. Section 2924b, subdivision (c)(1) requires a trustee to give notice of sale to a variety of parties “provided that the estate or interest of any person entitled to receive notice . . . is acquired by an instrument sufficient to impart constructive notice of the estate or interest in the land or portion thereof that is subject to the deed of trust or mortgage being foreclosed, and provided the instrument is recorded in the office of the county recorder so as to impart that constructive notice prior to the recording date of the notice of default . . . .” (§ 2924b, subd. (c)(1); see also Estate of Yates (1994) 25 Cal.App.4th 511, 517-519.)
Wilson’s complaint does not allege the quitclaim deed was ever recorded prior to the foreclosure sale. Section 2924b, subdivision (c) requires constructive notice by a recorded instrument. Bank of America and ReconTrust had no statutory duty to provide Wilson notice of the sale.
Even if Bank of America and ReconTrust did not have a statutory duty to notify him, Wilson argues “such duty nonetheless attached itself to Bank of America/Recontrust as one they undertook.” Wilson presents a series of allegations without any citation to the record, none of which support his claim. Moreover, as the trial court found, Wilson admitted that for a significant period of time prior to the sale he had actual notice the foreclosure proceedings were pending. Given that knowledge, Wilson could have requested special notice of the foreclosure proceedings under section 2924b, subdivision (a).
Wilson also asserts that the notice of trustee’s sale was improper because the named signer “was a notorious robo-signor.” We addressed this issue in Mendoza v. JPMorgan Chase Bank N.A. (2016) 6 Cal.App.5th 802. The plaintiff in Mendoza argued that a robo-signed assignment is a void assignment, which would unravel the entire nonjudicial foreclosure. (Id. at p. 809.) We found: “Although the robo-signing allegation has been launched in many cases, plaintiff fails to cite any authority in which a court set aside a trustee’s sale based on a robo-signed document. To the contrary, a federal court explained: ‘[T]o the extent that an assignment was in fact robo-signed, it would be voidable, not void, at the injured party’s option.’ [Citation] The bank, not the borrower, would be the injured party.” (Id. at p. 819.)
Fraud
Wilson also contends he pled facts sufficient to state a cause of action for fraud based on misrepresentation or concealment. In his amended complaint Wilson alleged an unnamed agent of ReconTrust told him the March 6, 2013 sale would be postponed, but that Wilson should check back later that day. After Wilson filed for bankruptcy, an unnamed agent of ReconTrust informed Wilson that the scheduled foreclosure sale of March 6, 2013, was rescinded.
The elements of negligent misrepresentation are: (1) a misrepresentation of a material fact; (2) made without reasonable ground for believing it to be true; (3) made with the intent to induce another’s reliance; (4) justifiable reliance; and (5) resulting damage. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196.) Fraud further requires scienter, or knowledge of falsity, and an intent to defraud. The plaintiff must plead fraud specifically and with factual particularity. General or conclusory allegations are insufficient. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, 184.)
Here, as the trial court noted, Wilson failed to allege the names of the persons who made the representations of postponement and rescinding of the March 6, 2013 sale. In addition, Wilson admitted he did not rely on the representations concerning the March 6, 2013 sale. Wilson alleged “given Reconstrust’s prior bad faith” he believed he had no choice other than to file for bankruptcy in order to stop the foreclosure sale. He filed for bankruptcy on March 6, 2013. We agree with the trial court’s assessment that the face of the first amended complaint sets forth facts establishing Wilson did not believe ReconTrust’s alleged misrepresentations related to the postponement of the trustee’s sale and took the only course of action available to him to prevent the sale. Wilson’s first amended complaint failed to state a cause of action for fraud based on intentional misrepresentation or concealment.
Automatic Bankruptcy Stay
Wilson contends the trial court erred in finding the automatic bankruptcy stay did not invalidate the subsequent sale of the property. The trial court found there was no final judgment from the bankruptcy court and, in addition, it lacked jurisdiction to determine the scope of the automatic stay.
In the present case, Wilson filed for bankruptcy approximately a half an hour prior to the March 6, 2013 sale of the property. With some exceptions, all proceedings against a debtor or a debtor’s property are stayed during the pendency of the bankruptcy. The automatic stay is self-executing and is effective upon the filing of the bankruptcy petition. Any action, including any judicial proceeding, taken in violation of the automatic stay is void. A state court does not have concurrent jurisdiction to determine the scope of the automatic stay with respect to a core bankruptcy proceeding. (In re Gruntz (9th Cir. 2000) 202 F.3d 1074, 1082-1083.)
In his amended complaint, Wilson acknowledges that while a temporary injunction was issued by the bankruptcy judge related to the sale of the property, there was never any final judgment or order on the merits finding a violation of the automatic stay. The bankruptcy action was subsequently dismissed.
Accordingly, Wilson’s complaint reveals he cannot prove a violation of the bankruptcy stay as grounds for an award of damages due to an allegedly void trustee’s sale. Nor does the first amended complaint seek relief based upon any alleged violation of the stay.
Leave to Amend
To show an abuse of discretion, Wilson must show how his complaint could be amended to state a cause of action. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 992.) Here, Wilson fails to meet this burden and the trial court did not abuse its discretion in granting the motion for judgment on the pleadings without leave to amend.
DISPOSITION
The judgment is affirmed. Bank of America and ReconTrust shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



RAYE , P. J.



We concur:



BUTZ , J.



HOCH , J.