Clark v. Transpack Corp.

Filed 9/25/07 Clark v. Transpack Corp. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

Defendants Transpack Corporation (Transpack) and Buckley & Associates, Inc. (Buckley) obtained judgment in their favor after prevailing on a motion for summary judgment against plaintiffs Craig and Christina Clark. The action was filed after (1) the Clarks defaulted on a secured loan owned by Transpack and (2) Buckley, acting as trustee, sold the property.

In their main headings in their opening brief on appeal, the Clarks assert the trial court erred by concluding (1) they could not obtain legal remedies as a result of the trustees sale because they did not tender to Transpack the full amount of their indebtedness, (2) the facts did not support a cause of action for wrongful foreclosure, and (3) the facts did not support causes of action for negligence, fraud, and the breach of the covenant of good faith and fair dealing. Although the legal arguments in the briefs do not necessarily match the main headings, we nevertheless find that the Clarks have failed to establish that the trial court erred by granting summary judgment.

STANDARD OF REVIEW

Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] We review the trial courts decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.] (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

THE PARTIES

The plaintiffs, Craig and Christina Clark, were the owners of real property located at 209 West Elkhorn Road in Rio Linda.

Defendant Transamerica Home Loan (Transamerica) is a mortgage lender that loaned the Clarks money in exchange for a promissory note and a second deed of trust on their real property. Transamerica settled with the Clarks for $2,500 and is no longer a party to this litigation.

Defendant Transpack, an Illinois corporation whose owner is Christopher Foreman, purchased the Clarks note and deed of trust from Transamerica.

Defendant Buckley became the trustee on the Clarks note by Transpacks election.

Defendant Wilshire Credit Corporation (Wilshire) is a lender. The Clarks voluntarily dismissed Wilshire early in the proceedings.

The Clarks included OCWEN Federal Bank (OCWEN) as a defendant in their complaint but never served OCWEN.

Therefore, the parties remaining in this case are the Clarks as plaintiffs and Transpack and Buckley as defendants.

FACTUAL BACKGROUND

In 1992, the Clarks borrowed $49,846.23 from Transamerica. They signed a promissory note, agreeing to make monthly payments of $789 until 2002. They also executed a deed of trust in favor of Transamerica on their West Elkhorn Road property. In 1996, the Clarks stopped making payments on the note.

In 2001, Transamerica assigned the promissory note and deed of trust to Transpack. After it became the beneficiary under the deed of trust, Transpack exercised its right to accelerate the loan on default and substituted Buckley for the original trustee.

On November 26, 2001, Buckley recorded a notice of default and election to sell and, on December 3, mailed the notice to the Clarks. On March 4, 2002, Buckley recorded a notice of trustees sale, with a sale date of March 27. The notice was posted at the West Elkhorn Road property and was published.

After two postponements, the trustees sale of the Elkhorn Road property was scheduled for April 30, 2002. On April 25, however, Christina Clark filed for bankruptcy. On January 16, 2003, the bankruptcy court dismissed the bankruptcy petition because Christina failed to cure her default in those proceedings.

After several postponements, Buckley sold the property at a public auction on February 5, 2003. Transpack submitted the winning bid of $84,000.

Further details are provided in the discussion, below.

PROCEDURE

The Clarks filed a complaint in the Sacramento Superior Court alleging 10 causes of action against the defendants, including a federal claim for violation of the Fair Debt Collections Act. Defendant Wilshire removed the action to federal court because of the federal claim. In the federal court, the Clarks filed a first amended complaint alleging 10 causes of action, as follows:

1. Quiet title to property at 209 Elkhorn Road in Rio Linda against all defendants.

2. Breach of the covenant of good faith and fair dealing against Transpack, Buckley, and Transamerica.

3. Wrongful foreclosure against Transpack, Buckley, Transamerica, and Wilshire with a prayer for restoration of the property and for damages.

4. Breach of contract against Transpack, Buckley, and Transamerica.

5. Fraud against Transpack and Buckley.

6. Declaratory relief against all defendants seeking a judicial declaration that the foreclosure was wrongful because (a) it was based on an amount exceeding the Clarks indebtedness, (b) the property was sold for an inadequate price to Transpack, who was not a bona fide purchaser, and (c) the sale was irregular.

7. An accounting of the amount due on the Clarks account against all defendants.

8. Negligence against all defendants.

9. Violation of the federal Fair Debt Collections Act against Transpack and Buckley.

10. Violation of the Unfair Competition Law against all defendants.

Transpack and Buckley answered the complaint and filed a motion for summary judgment. The trial court granted the motion for summary judgment, ruling on each cause of action as follows:

1. The Clarks did not tender to Transpack the amount due on the promissory note, which is a prerequisite to a quiet title cause of action; therefore, the quiet title cause of action was without merit.

2. The breach of the covenant of good faith and fair dealing cause of action was without merit because there was no evidence that Transpack or Buckley breached a contract.

3. The wrongful foreclosure cause of action was without merit because the Clarks did not plead facts supporting the cause of action and did not present evidence sufficient to raise a triable issue of fact. The Clarks also failed to tender to Transpack the amount due on the promissory note.

4. There was no evidence that Transpack or Buckley breached a contract.

5. The Clarks failed to present evidence supporting each element of a fraud cause of action.

6. There is no basis for declaratory relief because, at best, the Clarks alleged only a past wrong.

7. No accounting is necessary because the Clarks retained no right of redemption after the trustees sale.

8. The Clarks failed to identify any disputed material fact concerning negligence.

9. There was no need to rule on the cause of action for violation of the Fair Debt Collections Act because summary adjudication was granted in the federal court on that cause of action.

10. The Clarks failed to identify any disputed material fact concerning the violation of the Unfair Competition Law.

The trial court also expressed its conclusions concerning specific contentions affecting the Clarks causes of action, as follows:

A. The Clarks presented no evidence of a tender to cure their default on the loan.

B. The Clarks presented no evidence that (1) Transpack or Buckley breached any duty under the deed of trust or the governing statutes or (2) that there were any irregularities in the trustees sale.

C. The deed of trust was not void, and the trustees sale was not invalid.

Having granted the motion for summary judgment of both remaining defendants, the trial court entered judgment of dismissal.

DISCUSSION

I

Standing

To obtain equitable remedies (for example, quiet title or redemption) after a trustees sale, a plaintiff must allege and prove tender of the full amount of the debt for which the real property served as security. (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.) This rule is premised upon the equitable maxim that a court of equity will not order that a useless act be performed. (Id. at pp. 578-579.) Although, for reasons unique to an action in equity, full tender is necessary to obtain equitable remedies, legal remedies (damages) apparently may still be available, without a full tender, for illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust. (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.)^[1]

The Clarks contend that the trial court overlooked their legal remedies when it ruled that they could not prevail on their wrongful foreclosure cause of action because they had not tendered the full amount of the debt. The contention is without merit. The trial court, in addition to correctly rejecting the Clarks equitable claims, also correctly found that the evidence that the Clarks presented did not raise a triable issue of fact based on their legal claims.

In ruling on the third cause of action -- namely, wrongful foreclosure -- the trial court found that the Clarks failed to tender the amount of the debt. The trial court also found, as to all causes of action, that the Clarks presented no evidence that Transpack or Buckley breached any duty under the deed of trust or the trustees sale statutes.

As to the equitable relief sought, the failure to tender the amount owed on the debt justified summary judgment. As to the legal relief sought, the failure to present evidence raising a triable issue of fact concerning the liability of Transpack or Buckley justified summary judgment. Therefore, the Clarks argument that they could recover legal damages even if they did not tender the amount owed on the debt, though possibly true in the abstract, fails on the facts of this case.

This same analysis applies to all of the Clarks other causes of action based on legal rather than equitable theories. The trial court determined, from the evidence presented in support of and opposition to the motion for summary judgment, that Transpack and Buckley had breached no duty under the deed of trust or the trustees sale statutes. Hence, the Clarks legal theories, based on breach of duty or statute, are without merit.

II

Wrongful Foreclosure

The Clarks assert the facts supported a cause of action
for wrongful foreclosure. Although they do not discuss the elements of a wrongful foreclosure cause of action, the Clarks assert Transpack and Buckley committed the following wrongs: (1) Transpack and Buckley failed to give the Clarks notice of the exact amount due, (2) Transpack and Buckley failed to
abide by a payment plan which the Clarks allege was negotiated, (3) the notice of sale stated an incorrect address for the real property, (4) the notice of sale was untimely, (5) the postponements did not conform to the statutes, and (6) Transpack was not registered to do business in California. We conclude that each of these assertions is either without merit or does not support a cause of action for wrongful foreclosure.

1. Notice of Amount Due

A notice of default is the first notice to a delinquent borrower or trustor under a deed of trust (here, the Clarks) in the process leading up to a trustees sale. The notice of default must correctly set forth the amount required to cure the default. (Sweatt v. Foreclosure Co. (1985) 166 Cal.App.3d 273, 278.) The notice of default recorded by Buckley stated an amount of indebtedness, and the Clarks do not contend it was substantially incorrect. At times after the recording of the notice of default, however, the notices provided to the Clarks stated different amounts due on the Clarks indebtedness to Transpack. The Clarks assert these later discrepancies resulted in failure of Buckley to give them proper notice of the amount due and therefore rendered the trustees sale invalid. We disagree.

The notice of default, recorded on November 26, 2001, stated $53,415.10 as the amount due as of November 21, 2001. The notice warned that the amount will increase until your account becomes current. Thereafter, the following notices were issued:

• Buckley issued a debt validation notice to the Clarks, dated December 3, 2001, stating that the amount of the debt owed, as of November 21, 2001, was $53,415.10, consistent with the notice of default. This debt validation notice also warned that [t]he amount will increase daily until the debt has been paid in full.
• Buckley issued a notice of trustees sale on February 27, 2002. This notice stated that the [a]mount of unpaid balance and other charges was $85,362.61.
• On October 24, 2002, Wilshire issued to the Clarks a notice that the servicing of the loan was being transferred from Transamerica to Wilshire. The amount due on the loan was stated as $60,521.15.
• Finally, the trustees deed upon sale, recorded on February 10, 2003, after the trustees sale of the property, stated that the amount of the unpaid debt was $92,245.00.^[2]

From these notices, we see that Buckley notified the Clarks that their indebtedness was $53,415.10 as of November 21, 2001. After that, the amount increased, as the notice of default said it would, until the property was sold. The only aberration is the notice that the Clarks received from Wilshire, not from Buckley or Transpack, which stated an amount lower than the previous notice the Clarks had received from Buckley. Because this notice did not come from Buckley or Transpack, it does not amount to an inconsistency in the amounts stated by Buckley in its notices. Therefore, since Buckley gave the Clarks proper notice of the amount due on the indebtedness in the notice of default and thereafter, the Clarks assertion that the trustees sale was invalid is without merit.

2. Negotiated Payment Plan

The Clarks contend that Buckley and Transpack failed to abide by a payment plan negotiated between the Clarks and Transpack. Very simply, the Clarks contention is without merit because there is no admissible evidence of a negotiated payment plan.

In her declaration in opposition to summary judgment, Christina Clark declared: Our friend Greg Watts called Christopher Foreman [owner of Transpack] on our behalf and offered an initial $2,000 payment and $799 monthly payments thereafter. In response, Christopher Foreman called my husband and demanded $8,000. Then he changed his mind and demanded $10,000 by Friday to avoid the foreclosure sale. I withdrew $10,000 from my 401(k) account with my employer to meet Mr. Foremans demands as I did not want to lose my home. . . . However, when we tried to give Mr. Foreman the money in accordance with our agreement, he reneged. He stated that he wanted $90,000 or nothing and the house would be sold.

The Clarks cite to this declaration in support of their contention on appeal that Transpack reneged on a negotiated payment plan. Transpack and Buckley, however, objected to the portion of Christina Clarks declaration, just quoted, because she did not have personal knowledge and the statements were based on hearsay. The trial court sustained the objection. The only admissible evidence on this topic is the declaration of Christopher Foreman, in which he states that he did not enter into a negotiated payment plan with the Clarks.

The Clarks assertion that Transpack reneged on a negotiated payment plan has no evidentiary support and is, therefore, without merit.^[3]

3. Address of Real Property

The Clarks contend that Buckley put the wrong address on the notice of trustees sale and, therefore, the sale was invalid. Instead of 209 West Elkhorn Road, the notice listed 209 Elkhorn Rd., without West. The only authority that the Clarks give for the assertion that this circumstance invalidated the sale is the general principle that nonjudicial foreclosure sales must be fair and regular. (See System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 153.) We disagree that the address discrepancy invalidated the sale. The address was not materially wrong.

The evidence submitted in connection with the summary judgment motion did not establish that West in the address was essential to identifying the subject property. Initially, we note that the Clarks, themselves, listed the address without the West in their complaint, alleging that the property is commonly known as 209 Elkhorn Road. However, the Clarks state, in their brief, that there is no such address as 209 Elkhorn Road. If the property was commonly known as 209 Elkhorn Road, and there was no other property with which it could have been confused, there is no merit to the argument that leaving West out of the address invalidated the sale. In any event, the correct assessors parcel number was listed on the notice. (See Civ. Code,  2924f, subd. (b)(1) [sale valid if assessors parcel number and common designation of property correct].)

The Clarks argue: Potential good faith purchasers for value were prevented from bidding on the property since the wrong address was published. This fact is essential to the Clarks attempt to invalidate the sale, yet they provide no citation to the record to support this allegation. Without more, it is unreasonable to infer that potential buyers were misled simply because the notice did not include West. Accordingly, the Clarks contention that the sale was invalid because the notice of trustees sale stated the wrong address is without merit.

4. Timeliness of Notice of Sale

Twenty days before a trustees sale, the trustee must mail to the trustor and others a notice of the time and place of sale. (Civ. Code,  2924b, subd. (b)(2).) An employee of Buckley signed an affidavit of mailing stating that, on March 1, 2002, she mailed to the parties listed in the affidavit, including the Clarks, the notice of time and place of sale. The notice was for the sale that was to occur on March 27, 2002, but was postponed. Civil Code section 2924b, subdivision (e) provides that [i]n the absence of fraud, the affidavit required by this subdivision shall establish a conclusive presumption of mailing.

The Clarks, however, assert that the mailing took place on March 11, 2002, and, therefore, was not timely. They argue that, because this notice of the original sale date was untimely, Buckley was required to reinitiate the notice procedures and could not simply use the postponement procedures. The Clarks base their assertion concerning when the notice was mailed on what appears to be a stamp affixed by the post office to a list of recipients of the mailing. The stamp appears to be for March 1, 2002, but there is a mark next to the 1 in the date. That mark is a straight vertical line, but it does not match the font of the 1 in the date. It does not appear to be part of the date. The affidavit of mailing is therefore conclusive evidence of timely mailing, and the Clarks assertion does not raise a triable issue of material fact.

5. Postponements

The Clarks contend the postponements of the trustees sale did not conform to the statutory requirements and, therefore, the sale was invalid. They appear to rely on two different theories in making this contention: (1) there is no proof that the postponements were publicly announced at the time and place of the noticed sale and (2) Buckley sent a notice to the Internal Revenue Service (IRS) while the stay associated with Christinas bankruptcy was still in force. The first theory fails because it is legally unconvincing, and the second fails because the Clarks offer no authority in support of the proposition.

a. Public Announcement

Any postponement shall be announced at the time and location specified in the notice of sale for commencement of the sale . . . . (Civ. Code,  2924g, subd. (a).) After quoting this provision, the Clarks state that, in the evidence submitted by Transpack and Buckley, there is no Certificate of Postponement stating the postponement was publicly announced for the following dates . . . . (Underscoring in original.) The Clarks then list the various postponements in the trustees sale. They also allege that [t]here is no proof that the above-referenced purported postponements were executed via public announcement at the time and location specified in the notice of sale. No notice of any of the purported postponements was provided to [the Clarks]. As such they were deprived of the right of redemption.

This meandering argument fails to establish error in granting summary judgment for three reasons. First, the Clarks offer no authority for the proposition that, in order to obtain summary judgment, a defendant must file a certificate showing that public announcements were made. Second, the Clarks fail to explain what announcing the postponements publicly has to do with providing notice to them. And third, the Clarks reference to their right of redemption provides no explanation or authority.

It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and all intendments and presumptions are indulged in favor of its correctness. [Citation.] (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600.) An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784785.) (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.)

Here, although the Clarks attempt to make a point, it is not supported with reasoned argument and citations to authority. For example, that Buckley provided no certificate stating that postponement was publicly announced has no legal weight unless there is authority for the proposition that such a certificate is necessary to fulfill the statutory requirement. Accordingly, we reject the assertion that the sale was invalid.

b. Notice to Internal Revenue Service

The Clarks apparently alternative argument is that Buckley violated the bankruptcy stay by sending a notice to the IRS before the stay was lifted. While it is unclear how this argument relates to public announcement of a postponement, it is made under the same heading. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be stated under a separate subheading and must be supported by authority].) In any event, the Clarks provide no authority for their argument. We therefore will not consider it. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)

6. Transpacks California Registration

The Clarks contend that Transpack, an Illinois corporation, lacked standing to foreclose on the Elkhorn property because Transpack was not registered to do business in California until March 5, 2003, which was after the trustees sale. In making this contention, the Clarks fail to acknowledge that Corporations Code section 191, subdivision (d) allows a foreign corporation, such as Transpack, to engage in the types of activities in which Transpack engaged, such as ownership of a loan and foreclosure, without registering to do business in California. This failure to acknowledge applicable authority is especially egregious in light of the fact that the trial court relied on Corporations Code section 191 when it rejected the same contention in connection with the summary judgment motion.^[4] The contention is therefore without merit.

III

Negligence, Fraud, and Bad Faith

Under a heading stating that Transpack and Buckley are liable for negligence, fraud, and the breach of the covenant of good faith and fair dealing, the Clarks assert that Transamerica, Transpack, and Buckley failed to send the Clarks the notices required by the Real Estate Settlement Procedures Act.^[5] The assertion is without merit because the statute applies to the transfer of the servicing of the loan not the transfer of the loan itself.

Each servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person. (12 U.S.C.  2605(b)(1).) Although this statute refers only to the transfer of the serving of the loan, the Clarks claim it applies anytime, in their words, the loan is transferred to another party. Based on this mistaken application of the law, the Clarks contend Transpack and Buckley are liable to them for damages because Transpack and Buckley did not give notice of the transfer of the loan. Since the statute applies to the transfer of loan servicing, not to the transfer of the loan itself, the Clarks fail to establish error in the granting of the summary judgment motion.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

NICHOLSON , J.

We concur:

SIMS , Acting P.J.

MORRISON , J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1] There is a lack of clarity in the law concerning whether a plaintiff can recover legal damages in a wrongful foreclosure case if the plaintiff did not tender the full amount of the debt owed. One case uses broad language and states that, in order to maintain any cause of action for irregularity in the sale procedure, the plaintiff must tender the amount owed. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109, emphasis added.) But Abdallah does not discuss the availability of legal damages. Munger, on the other hand, states that legal damages are available for an illegal sale, but it does not discuss whether a tender of the amount owed is necessary to maintaining such an action. (Munger v. Moore, supra, 11 Cal.App.3d at p. 7.) It would seem that, because tendering the amount owed is relevant to equitable remedies such as setting aside the sale and restoring the property to the plaintiffs, the purpose for requiring the tender does not apply to legal damages, which can be calculated without regard to whether the amount owed has been tendered. In any event, this is not the case to clarify the law because the Clarks fail to present evidence sufficient to create a triable issue of fact on the legal theories.

^[2] A trustees sale guarantee, dated November 21, 2001, by First American Title Company, stated $44,392.97 as the liability. This appears to be a title insurance contract between First American Title Insurance Company, as the insurer, and both Buckley and Transpack, as the insureds. There is no indication in this document that it was ever presented to the Clarks. We therefore fail to see any significance of this document to this contention.

^[3] Without informing the appellate court that the crucial evidence was excluded by the trial court, it is unprofessional for counsel to cite the evidence to the appellate court in an attempt to have the court rely on it in considering the contentions raised. (See Cal. Rules of Prof. Conduct, rule 5-200(B) [unprofessional to mislead the court].) Counsel for the Clarks does so in her opening brief, even though she was also trial counsel and knew the evidence had been excluded. After the respondents brought the status of the cited evidence to the attention of this court in their respondents brief, counsel for the Clarks failed to withdraw, correct, explain, or even to mention the problem in her reply brief.

^[4] It is unprofessional to mislead the court concerning the state of the law. (Cal. Rule of Prof. Conduct, rule 5-200(B).)

^[5] In an apparently unrelated contention thrown in without citation to authority to give the Clarks claims any legal foundation, counsel for the Clarks makes some apparently serious accusations. She states, Furthermore, the trustee, Respondent Buckley & Associates, Inc. misrepresented itself as a law firm, and Respondent Transpack Corporations principal, Christopher Foreman, stole Appellant Craig Alan Clarks identity in order to resume payments of a nonassumable first mortgage on the Elk Horn Blvd. [sic] property. These accusations are without foundation. In fact, the latter accusation, that Foreman stole Craig Clarks identity was asserted as a fact by the Clarks. But Buckley and Transpack objected to this fact as without foundation, and the trial court sustained the objection. (Cal. Rules of Prof. Conduct, rule 5-200(B).)