Filed 1/23/18 Dehorney v. Deutsche Bank National Trust Co. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DEATRA DEHORNEY,

Plaintiff and Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY ETC. et al.,

Defendants and Respondents.


E065493

(Super.Ct.No. CIVDS1401592)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

We deny Dehorney’s petition for rehearing and modify the opinion filed in this matter on January 5, 2018, by deleting footnote 10 at the bottom of page eight.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:

RAMIREZ
P. J.

McKINSTER
J.

Filed 1/5/18 Dehorney v. Deutsche Bank National Trust Co. CA4/2 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



DEATRA DEHORNEY,

Plaintiff and Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY ETC. et al.,

Defendants and Respondents.


E065493

(Super.Ct.No. CIVDS1401592)

OPINION


APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Deatra Dehorney, in pro. per., and for Plaintiff and Appellant.
Wright, Finlay & Zak, Jonathan D. Fink, and Bradford E. Klein, for Defendants and Respondents.
In December 2006, plaintiff and appellant, Deatra Dehorney, obtained two loans secured by deeds of trust on real property—the house where she has since lived. In 2007, her loans were securitized under third party pooling and servicing agreements (PSAs) which called for her deeds of trust to be assigned to securitized asset trusts. By 2014, she had gone into default, and her mortgage servicing provider warned it would initiate foreclosure proceedings. Roughly contemporaneous with the foreclosure warning, the mortgage holder’s nominee belatedly assigned one of the loans to one of the securitized asset trusts, seemingly in preparation to foreclose.
Dehorney sued the assignee, the mortgage service provider, and the mortgage holder’s nominee to short circuit foreclosure. She sought to cancel the original deed of trust because she did not receive a truth in lending disclosure and sought to cancel the assignment because the nominee lacked authority to initiate foreclosure. She also claimed the original deed of trust was invalid because she was fraudulently induced to take the loan and make payments; she asked the court to quiet title in her favor; and she claimed the mortgage service provider inflicted emotional distress by the way it threatened foreclosure. The trial court sustained the bank’s demurrer without leave to amend on all but her cancellation claim and later granted summary judgment on the cancellation claim because she lacked standing and because the statute of limitations had run. We affirm the judgment in all respects.
I
FACTUAL BACKGROUND
A. Overview
Dehorney bought a house in Victorville in December 2006, just before the onset of the financial crisis of 2007 and 2008. She paid $386,768 and financed the purchase with two loans from New Century Mortgage Corporation (New Century)—a primary loan for $309,414 (first loan) and a subordinated loan for $77,353 (second loan). The sale closed and Dehorney moved into the house on December 23, 2006. The house has been her primary residence ever since.
The first loan is evidenced by a promissory note, which Dehorney executed on December 23, 2006. The note was secured by a deed of trust which Dehorney executed the same day and which New Century recorded on December 27, 2006. The deed of trust named Deatra Scott as the borrower, New Century as the lender, Mortgage Electronic Registration Systems, Inc. (MERS) as New Century’s nominee, and First American Title as the trustee. Both the note and the deed of trust show the first loan was a 30-year adjustable rate mortgage with a three-year rate lock, and a five-year interest only period. The loan carried an initial interest rate of 5.625 percent, but the rate would change every six months beginning January 1, 2010 based on the London Interbank Offered Rate (LIBOR), subject to a 12.625 percent rate cap.
The second loan is evidenced by a second promissory note, which Dehorney also executed on December 23, 2006. The second note is secured by a second, subordinated deed of trust, which Dehorney executed on the same day and which New Century recorded on December 27, 2006. The second deed of trust also named Deatra Scott as the borrower, New Century as the lender, MERS as the nominee, and First American Title as the trustee. The second loan is a 30-year fixed rate mortgage carrying an interest rate of 11.55 percent.
In April 2007, New Century entered PSAs for two large bundles of securitized mortgages with Barclays Bank PLC (Barclays) and Goldman Sachs Mortgage Company (Goldman Sachs). New Century’s parent corporation, New Century Financial Corporation, filed for bankruptcy the same month. Dehorney’s first loan was part of the Barclays pool and her second loan was part of the Goldman Sachs pool. Barclays’ and Goldman Sachs’ mortgage servicing businesses handled the servicing of Dehorney’s loans until defendant and respondent Ocwen Financial Corporation doing business as Ocwen Loan Servicing, LLC (Ocwen) acquired them.
For several years, Dehorney made payments to the mortgage servicing entities. At first, she paid $1,872.91 a month on the first loan, and $768.98 on the second loan. The payments on the first loan increased over the years, eventually reaching about $2,300. In September 2008, Dehorney requested and obtained a modification of the first loan, which reduced her interest rate to five percent and her monthly payments from $2,280.46 to $1,887.26.
However, after suffering some health and financial problems, Dehorney stopped making payments on her loans. She was the victim of an attack in 2008, which led her to leave a regular nursing position and take up per diem work that paid less. She filed for bankruptcy on November 4, 2010. In December 2010, she obtained a second modification of her first loan, which reduced her interest rate to two percent and her monthly payment to $1,183.05 for five years.
Subsequently, Dehorney suffered additional setbacks. She was injured at work in May 2011, stopped working in June 2011, had additional very serious health problems in 2012, and began receiving disability benefits. She indicates she stopped paying her second mortgage when she entered bankruptcy, but continued making payments to Ocwen on the first loan until June 2013, when her disability benefits decreased. In the meanwhile, she attempted to modify the first mortgage again, but Ocwen ultimately refused, saying the payment options available under applicable guidelines required a higher income than she could claim.
She says Ocwen informed her by letter dated January 25, 2014 that she was in default and her home would be sold on March 17, 2014. According to Dehorney, no one ever recorded a notice of default. Ocwen did, however, record an assignment of the deed of trust five days later. The document says MERS, acting as nominee for New Century, assigned all rights, title, and interest in the first loan to Deutsche Bank National Trust Company (Deutsche Bank) as trustee for the Securitized Asset Backed Receivables LLC Trust 2007-BR4 Mortgage Pass-Through Certificates, Series 2007-BR4 (2007-BR4 Trust). Leticia N. Arias signed the document before a notary public on January 14, 2014, acting on behalf of MERS under the title assistant secretary.
On February 14, 2014, Dehorney filed a complaint against the 2007-BR4 Trust, Ocwen, MERS, and First American Title Insurance Company alleging 11 causes of action. Counsel representing Ocwen, MERS, and Deutsche Bank responded to the complaint by filing a demurrer. The trial court sustained the demurrer as to all Dehorney’s claims, but allowed her to amend. On June 17, 2014, Dehorney filed an amended complaint stating seven claims against defendants and respondents, Deutsche Bank, Ocwen, and MERS (collectively, defendants). This appeal concerns the trial court’s orders dismissing six of those claims on a second demurrer and dismissing the seventh claim on summary judgment.
B. Plaintiff’s Factual Allegations
Dehorney says the process of obtaining the loans on her house was unusual. She says she visited a development in Victorville with her real estate agent on December 13, 2006, where she filled out a card expressing interest. Three days later, they asked her to return to fill out paperwork because she qualified to purchase a home. She returned with her agent to the sales office, completed an application, signed loan documents, and provided pay stubs. They asked her to return to sign additional documents twice over the next week. On December 27, 2006, her real estate agent delivered the keys, and she moved into the house.
Her amended complaint identifies alleged problems with the approval and execution of her loans. She says her signature was forged on the final federal truth in lending statement for her first loan. She also says she did not meet the stated qualifications for obtaining the loans, but concludes the loan documents were “pushed through” anyway, causing escrow to close. She says if she had been told the house was unaffordable or she did not qualify for the loan she would have kept looking. Later, she says she “did not ever meet the conditions as noted in the addendum to escrow instruction for the second loan.” According to Dehorney, New Century pushed through her loans, despite her failure to qualify, because they needed to populate pools of securitized mortgages in the deals with Barclays and Goldman Sachs.
Dehorney also challenges the January 14, 2014 assignment of the deed of trust on the first loan. She has two separate theories why the assignment was void or voidable. First, she says the assignment was improper because Leticia N. Arias, the person who signed the document on behalf of MERS, was a “known robo-signer for defendant Ocwen.” On appeal, she extends this theory by claiming Arias was not an authorized agent of MERS. Thus, she contends Arias did not have authority to sign the assignment.
Second, she says the assignment was not performed in a timely fashion. She says New Century transferred her first loan to Barclays as part of an agreement to securitize mortgages initiated in 2006 and completed in 2007. As support, she attaches portions of a PSA between New Century and Barclays. She says the PSA shows New Century transferred her first loan to Barclays as part of a pool of mortgages and New Century was required to assign the deed of trust on her first loan to the 2007-BR4 Trust by June 17, 2007. However, she says no assignment was made until January 14, 2014, when MERS (acting as New Century’s nominee) assigned the loan to Deutsche Bank (acting as trustee for the 2007-BR4 Trust). Dehorney concludes “the trustee [did] not transfer the mortgage into the trust” in the manner required by the agreement, so “the trust [did] not own the mortgage” and could not assign it.
Dehorney contends for both these reasons the assignment was invalid. She says she did not discover the facts giving rise to her claims until she received her loan file from attorneys representing the New Century trustee on or around January 9, 2014.
Finally, Dehorney says the threat of foreclosure and Ocwen’s conduct in pursuing it caused her extreme emotional distress. She says she “could not sleep, she cried, and yelled at her kids because she did not know what to do.” She found men snooping around the house on several occasions, one of whom identified himself as being from Ocwen. She says the threats and snooping made her fearful. She “started taking pictures of documents out of fear something would happen to her, the evidence, or her house.”
C. Dehorney’s Causes of Action
Based on these allegations, Dehorney asserted seven causes of action.
In her first three claims, she sought relief for fraudulent conduct during the sale of her property. Claim one alleges New Century committed fraud by intentionally misrepresenting or concealing from her the fact she was not qualified for her loans. Claim two alleges defendants worked together to fraudulently conceal the fact she was not qualified for her loans. Claim three alleges defendants conspired to keep her from learning she was not qualified for her loans to induce her to make her mortgage payments each month over the course of seven years.
In three other claims, she attacked Deutsche Bank’s right to foreclose. Claim four sought cancellation of the deed of trust assigned to Deutsche Bank as trustee based on the allegation defendants used a robo-signer to assign the deed of trust. Claim five sought to require defendants to produce the original note on her property before beginning foreclosure proceedings. Claim seven sought to quiet title in her property (Code Civ. Proc., § 761.020) because Deutsche Bank “is claiming ownership via the mortgage assignment that was fraudulently obtained.” She alleges Deutsche Bank does not have any right, claim or interest in the property and requests a declaration that as of December 23, 2006 (the purchase date) all right, title, and interest in the property be vested in her.
In claim 6, she alleged defendants intentionally inflicted emotional distress by threatening her with letters, phone calls, and visits as part of their efforts to foreclose on her property. She alleged defendants “tried to scare [me] out of the house with a fake sale date letter, . . . NOD letters, men peeking into [my] window,” and in general created a fear she would be locked out of her home.
D. Trial Court Ruling on Demurrer
On November 7, 2014, the trial court sustained defendants’ demurrer in part, dismissing six of Dehorney’s seven causes of action without leave to amend. The court dismissed her claims for fraud (claim 1) and fraudulent concealment (claim 2) because her allegations that defendants misrepresented and concealed her qualifications for the loan do not establish she reasonably relied upon those representations or that they caused her damages. It dismissed her claim for conspiracy (claim 3) because conspiracy is not a stand-alone cause of action, and her claim is based on her deficient fraud allegations. It dismissed her claim demanding defendants produce the original note (claim 5) because, under California law, the note need not be produced in a nonjudicial foreclosure. The court dismissed her claim for intentional infliction of emotional distress (claim 6) because she did not allege facts showing extreme and outrageous conduct by the defendants—the alleged conduct was permissible in a nonjudicial foreclosure. Finally, the court dismissed her quiet title claim (claim 7) because she failed to allege she had or would tender the amounts secured by the deeds of trust, required in a quiet title action.
However, the trial court declined to dismiss Dehorney’s claim for cancellation (claim 4). The court read her cancellation claim broadly, refusing to dismiss it because she alleged someone had forged her signature on a Truth in Lending Act disclosure statement on the original loan. The court wrote the forgery, if true, would support cancellation and rescission even absent tender of the amounts secured by the deeds of trust. Dehorney’s cancellation claim proceeded through discovery, whereupon defendants challenged it at the summary judgment stage.
E. Summary Judgment on the Cancellation Claim
There are two potential bases for Dehorney’s cancellation claim. As she stated the claim in her amended complaint, Dehorney seeks to cancel the deed of trust assigned to Deutsche Bank in January 2014 on the basis it is void or voidable because it was signed by a robo-signer. On appeal she presses a variation of that argument, claiming the person who executed the agreement did not have authority to do so. The trial court recognized a second potential claim to cancel the original deed of trust based on the allegation someone had forged her signature on the federal truth in lending disclosure form.
1. Evidence related to the alleged robo-signing
In support of their motion for summary judgment, defendants submitted a declaration by Katherine A. Ortwerth, a loan analyst working for Ocwen, in which she identified business records Ocwen keeps in the regular course of business as the servicer of Dehorney’s loans. She described the contents of those documents and attached true and correct copies as exhibits.
Among those documents, Ortwerth reviewed the assignment to Deutsche Bank of the deed of trust on the first loan. She says the records she reviewed show “on January 30, 2014, an Assignment of DOT1 (‘ADOT1’) was recorded in the Official Records of the San Bernardino County Recorder’s Office, assigning all beneficial interest under the [deed of trust] from the beneficiary” to Deutsche Bank as trustee for the 2007-BR4 Trust. As we have noted, the assignment indicates Leticia N. Arias executed the document before a notary public on January 14, 2014, acting on behalf of MERS under the title assistant secretary.
Dehorney challenges the validity of the assignment based on Arias’s signature. She alleges Arias is a “known robo-signer.” At her deposition, she described the factual basis for that allegation. Asked “[w]hy do you believe that she is a robo-signer?” Dehorney responded, “Because her name is on that document as an assistant secretary. But when you look under MERS, and their list of employees and on their official website, there is no . . . Leticia Arias, she is not listed as an assistant secretary.” She explained “on their website, you can pull up their—I’m trying to think of the word—like their chairman, who the secretary is, who the CEO is. It lists all of those people. And she is not listed.” In short, Dehorney’s allegation that Arias was a robo-signer is based entirely on the fact that Arias did not appear on an online list MERS publishes of its officers and the members of its board of directors. She indicated she believed someone with the title assistant secretary would be included on such a list. She admitted she had no other information to suggest Arias was not authorized to act as an agent of MERS.
2. Evidence related to the allegedly forged truth in lending signature
Ortwerth submitted a copy of the federal truth in lending disclosure form related to Dehorney’s first loan, which she identified as a business record Ocwen keeps in the regular course of business as the servicer of Dehorney’s loans. That statement discloses the terms of the loan and includes a signature over the typewritten name Deatra Scott, dated December 23, 2006.
At her deposition, Dehorney admitted signing or initialing almost all the documents in the mortgage contract, including other truth in lending disclosure forms. However, she specifically denied the signature on the federal truth in lending disclosure statement on her first loan was her own. She said the signature did not look like her signature, though she admitted signatures vary, particularly when signing repeatedly on multiple documents.
F. Trial Court Ruling on Summary Judgment
On December 18, 2015, the trial court granted defendants’ motion for summary judgment on the cancellation claim. The trial court held, without elaboration, that Dehorney lacked standing to bring the claim and her claim was time-barred.
II
DISCUSSION
A. Orders Sustaining Demurrer on Claims 1-3 and 5-7
We may review the portions of the order sustaining demurrer on Dehorney’s first through third and fifth through seventh causes of action as part of the appeal of the judgment of dismissal and as an “intermediate ruling . . . which involves the merits or necessarily affects the judgment or order appealed from.” (Code Civ. Proc., § 906.)
In reviewing a judgment of dismissal after the trial court sustained demurrers without leave to amend, we treat the pleadings as establishing all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.) We are “not bound by the trial court’s construction of the complaint.” (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) Rather, we independently evaluate the complaint, construing it liberally as well as to determine whether it states a cause of action and whether defects can be cured by amendment. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The burden of proof is on the plaintiff, and if there is no liability as a matter of law, leave to amend should not be granted. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397.) We will affirm the judgment of dismissal if it is supported by any of the grounds stated in the demurrers, whether or not the trial court relied on them. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
“We may also consider matters subject to judicial notice. [Citation.] To determine whether the trial court should, in sustaining the demurrer, have granted plaintiff leave to amend, we consider whether on the pleaded and noticeable facts there is a reasonable possibility of an amendment that would cure the complaint’s legal defect or defects.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. omitted (Yvanova).) “We may also take notice of exhibits attached to the complaint. If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)
To show abuse of discretion in denying leave to amend, “a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) “Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44 (Rakestraw).)
1. Fraud-based claims (claims 1-3)
Dehorney brought three causes of actions based on alleged fraud during the sale of the property. In claim 1, she alleged defendants committed fraud by intentionally misrepresenting or concealing from her the fact that she did not qualify for her mortgages. She concludes that by concealing those facts, she was induced to take the loan and make payments she could not afford. In claim 2, she alleged defendants worked together to fraudulently conceal the fact she did not qualify for her mortgages to induce her to continue making her payments and, ultimately, to submit to foreclosure. In claim 3, she alleged defendants conspired to keep her from learning the same facts to induce her to make her mortgage payments each month over the course of seven years. All three claims turn on the allegations she did not qualify for her loans.
The elements of fraud are (i) a misrepresentation (false representation, concealment, or nondisclosure), (ii) knowledge of falsity, (iii) intent to defraud (induce reliance), (iv) justifiable reliance, and (v) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Dehorney’s fraud-based claims fail because she was not entitled to rely on her lender’s determination about her qualifications. Lender qualification standards exist to protect the lender from the borrower’s default, not to protect the borrower. “[A]bsent special circumstances . . . a loan transaction is at arm’s length and there is no fiduciary relationship between the borrower and lender. [Citations.]” (Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 466.) A lender “owes no duty of care to the [borrowers] in approving [a] loan” (Wagner v. Benson (1980) 101 Cal.App.3d 27, 35), and has no duty ‘“to determine the borrower’s ability to repay the loan . . . The lender’s efforts to determine the creditworthiness and ability to repay by a borrower are for the lender’s protection, not the borrower’s.”’ (Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434-436.)
Here, then, New Century’s efforts to ensure Dehorney met its loan qualification standards were for its own benefit. They set and applied those standards, for better or worse, based on their own appetite for risk. It is commonplace now that the overheated market for securitized mortgages prior to the financial crisis of 2007 and 2008 distorted the risk judgments of organizations in the mortgage industry. However, that does not change the fact that Dehorney was not entitled to rely on those assessments of her qualifications in deciding whether she should take on the debt. What she was entitled to rely on were the lender’s disclosures, but she did not identify any disclosure failures as a basis for her fraud claims.
We therefore conclude the trial court did not err in sustaining the demurrer to her first through third causes of action on the basis she failed to allege facts that could, if proven, show she had justifiably relied on false representations she met their qualification standards. Dehorney has identified no basis for thinking there is a reasonable possibility she could cure this pleading deficiency through amendment, so we have no basis to conclude the trial court abused its discretion by refusing leave to amend. (Rakestraw, supra, 81 Cal.App.4th at p. 44.)
It also bears noting Dehorney’s misrepresentation claims rest on a misunderstanding. Her amended complaint points to escrow instructions for the second loan, which say “[s]econdary financing . . . is NOT approved by Lender.” According to Dehorney, this document shows she never met New Century’s conditions. But the language she points to indicates only that New Century would not approve a mortgage that was subordinate to the second mortgage. It does not indicate, as Dehorney believes, that the first mortgage, which had priority over the second, had not been approved. Indeed, the closing instructions for the first loan specifically say secondary financing “is approved in the amount of $77,353”—the amount of the second loan. (Italics added.) Thus, Dehorney’s fraud-based claims also fail because documents she submitted as exhibits with her amended complaint show she was approved, and therefore there was no misrepresentation. It may have been unwise to issue the loans, and certainly it was unfortunate given what we now know about the financial condition of the mortgage and housing markets and Dehorney’s later struggles, but it was not fraudulent.
2. Produce the note claim (claim 5)
Dehorney asks us to hold defendants are required to produce the note on the property prior to beginning the foreclosure process. This request is contrary to California law.
As the Fourth District, Division One has explained, “California’s nonjudicial foreclosure scheme is set forth in Civil Code sections 2924 through 2924k, which ‘provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.’ [Citation.] ‘These provisions cover every aspect of exercise of the power of sale contained in a deed of trust.’ [Citation.] . . . ‘Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute.’” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154.) This scheme does not require a party to produce the original note at a nonjudicial foreclosure. We conclude allowing defaulting mortgagors to seek a judicial order requiring a party seeking to start the nonjudicial foreclosure process to produce the original note would be inconsistent with this clear statutory scheme.
Dehorney has provided no basis for thinking there is a reasonable possibility she could cure this pleading deficiency through amendment, so we have no basis for concluding the trial court abused its discretion by refusing leave to amend. (Rakestraw, supra, 81 Cal.App.4th at p. 44.) We will therefore affirm the trial court order dismissing Dehorney’s fifth cause of action.
3. Infliction of emotional distress
Dehorney asks us to reinstate her claim that defendants inflicted emotional distress in the way they invoked their purported right to foreclose on her home. On appeal, she contends she brought a claim for negligent, not intentional, infliction of emotional distress. We will address each claim.
a. Intentional infliction of emotional distress
A plaintiff claiming intentional infliction of emotional distress must allege and prove (i) defendant committed extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress, (ii) plaintiff suffered severe or extreme emotional distress, and (iii) defendant’s outrageous conduct actually and proximately caused plaintiff’s injuries. (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) The question we face is whether the alleged conduct was sufficiently extreme and outrageous to support the claim.
For conduct to be considered outrageous, it must be so extreme as to “‘“exceed all bounds of that usually tolerated in a civilized community.”’” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) That the defendant knew the plaintiff had a special susceptibility to emotional distress is a factor which may be considered in determining whether the alleged conduct was outrageous. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1226.)
Dehorney’s amended complaint did not allege facts sufficient to establish defendants engaged in outrageous conduct. The kinds of conduct Dehorney complains about—letters, phone calls, and visits—are tools creditors standardly use to enforce their rights through nonjudicial disclosure. Being on the receiving end of such communications can be deeply disturbing, but they do not form the basis for an intentional infliction of emotional distress claim. (See Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334 [“It is simply not tortious for a commercial lender to lend money, take collateral, or to foreclose on collateral when a debt is not paid”].) “An assertion of legal rights in pursuit of one’s own economic interests does not qualify as ‘outrageous.’” (Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1398.)
Though in debtor/creditor cases a creditor may be liable “where the creditor uses outrageous and unreasonable means in seeking payment” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 745, fn. 4, italics added), their exposure does not extend to “‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . [P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.’” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Dehorney has not alleged conduct that exceeds these boundaries.
b. Negligent infliction of emotional distress
Dehorney also contends defendants inflicted emotional distress by “engag[ing] in negligent conduct and willful violation of statutory standards that they should have been aware of considering their positions and business.” On appeal, she contends this allegation stated a claim for negligent infliction of emotional distress.
There is no independent tort of negligent infliction of emotional distress; rather, “[t]he tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 984.) “That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Id. at p. 985.)
California courts have concluded “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) Dehorney has identified no special relationship between herself and defendants that could give rise to such a duty, nor has she alleged anything to suggest defendants exceeded their conventional roles. We therefore conclude the trial court did not err in dismissing her emotional distress cause of action.
For all these reasons, we affirm the trial court order sustaining demurrer against Dehorney’s claim for emotional distress, whether of the intentional or negligent variety.
4. Quiet title
In her seventh cause of action, Dehorney sought to quiet title to the property and alleged, “Plaintiff is the ‘mortgagor,’ and Defendant Deutsche is claiming ownership via the mortgage assignment that was fraudulently obtained, thereby an interest in the property adverse to the Plaintiff . . . However, that claim is without any right or merit whatsoever, and said Defendant Deutsche does not have equitable right, claim, or interest in Plaintiff’s property.”
“A borrower may not, however, quiet title against a secured lender without first paying the outstanding debt on which the mortgage or deed of trust is based.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86.) Dehorney’s amended complaint does not allege she tendered the money to pay the balance owed on the mortgage. Nor does she allege the deed of trust is void on the face of the record. (Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 876-878 [debtor not required to tender amounts due under note where face of the record shows the deed is void].) Thus, she has failed to state a claim for quiet title. “The cloud on the title remains until the debt is paid.” (Lueras v. BAC Home Loans Servicing, LP, at p. 86.)
Inasmuch as Dehorney relies on equity in seeking quiet title (see Estate of Phelps (1990) 223 Cal.App.3d 332, 340 [quiet title action is equitable in nature]), she fails to plead a basis to show it would be equitable for her to retain title to the property without fulfilling her payment obligation. Nor has she provided any basis for thinking she can amend her complaint to state a successful quiet title cause of action. We therefore affirm the trial court’s dismissal of that claim
B. Summary Judgment on Cancellation Claim (Claim 4)
Dehorney contends she should be able to cancel the deed of trust assigned to Deutsche Bank as trustee for the 2007-BR4 Trust for two reasons. First, MERS assigned the deed of trust after the deadline for doing so set by the PSA. Second, the person who executed the assignment for MERS was a robo-signer or otherwise unauthorized to act on MERS account. The trial court concluded Dehorney did not have standing to challenge the assignment on these grounds and we agree.
“Standing is a threshold issue, because without it no justiciable controversy exists.” (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 445.) The party seeking to cancel an assignment “must be able to demonstrate that . . . she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 315; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 270, disapproved on other grounds in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13 [“the burden rested with plaintiff affirmatively to plead facts demonstrating the impropriety” in assignment].)
Dehorney alleges the deed of trust on her first loan was assigned to Deutsche Bank as trustee for the securitized asset trust in an untimely manner under the PSA. Specifically, she contends the assignment was void under the PSA because MERS did not assign the deed of trust until years after the closing date. Dehorney also alleges the signature of “Leticia N. Arias” on the assignment document was robo-signed and that Arias lacked authority to execute the assignment.
Dehorney lacks standing to pursue these theories. At bottom, her position is she may bring a preemptive action to determine whether Deutsche Bank may initiate a nonjudicial foreclosure on behalf of the trust. However, California courts do not allow such preemptive suits because they “would result in the impermissible interjection of the courts into a nonjudicial scheme enacted by the California Legislature.” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513, disapproved on other grounds in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.)
The California Supreme Court has held a borrower has standing to sue for wrongful foreclosure where an alleged defect in the assignment renders the assignment void. (Yvanova, supra, 62 Cal.4th at pp. 942-943.) However, Yvanova’s ruling is expressly limited to wrongful foreclosure claims brought after the foreclosure process has completed. (Id. at pp. 934-935 [expressly reserving issue whether a borrower could preempt a nonjudicial foreclosure].) Because Dehorney brings a preforeclosure suit challenging defendants’ right to foreclose, Yvanova does not affect her standing.
Moreover, Yvanova recognizes borrower standing only where the defect renders the assignment void, rather than voidable. (Yvanova, supra, 62 Cal.4th at pp. 942-943.) The PSA at issue is governed by New York Law, under which unauthorized acts by trustees are generally subject to ratification by the trust beneficiaries. (Rajamin v. Deutsche Bank Nat’l Trust Co. (2d Cir. 2014) 757 F.3d 79, 88.) “The principle that a trustee’s unauthorized acts may be ratified by the beneficiaries is harmonious with the overall principle that only trust beneficiaries have standing to claim a breach of trust. If a stranger to the trust also had such standing, the stranger would have the power to interfere with the beneficiaries’ right of ratification.” (Id. at p. 89.) Because “a trust’s beneficiaries may ratify the trustee’s otherwise unauthorized act, and because ‘a void act is not subject to ratification,’ [citation], such an unauthorized act by the trustee is not void but merely voidable by the beneficiary.” (Ibid.) It follows Dehorney lacks standing to challenge alleged defects in the MERS assignment of the deed of trust to Deutsche Bank as trustee for the securitized asset trust.
To the extent Dehorney’s claim is based on the allegation Leticia N. Arias was a robo-signer or lacked authority to act on behalf of MERS, it is also without factual support. Dehorney admitted the only evidence that Leticia N. Arias did not have authority to execute the assignment was information gleaned from MERS’s website. She said she assumed Arias—whose title was assistant secretary—would be included on the MERS list of officers and members of the board of directors. When she found Arias’s name did not appear on that list, Dehorney concluded Arias did not have the authority to act for MERS. Dehorney’s assumption that only officers and board members could act as MERS’s agents is completely unfounded, and not a sufficient evidentiary basis to survive summary judgment. Arias need only be an authorized agent of MERS to execute the assignment, and by her own admission, Dehorney has provided no evidence to show Arias acted without authorization or that she was a “robo-signer.”
Dehorney’s cancellation cause of action does not mention her allegation that someone forged her signature on the federal truth in lending disclosure form for her first loan. However, the trial court—presumably construing the complaint liberally—overruled the demurrer on that cause of action based on the alleged forgery.
The Truth in Lending Act of 1968 (TILA) “protects a consumer from fraud, deception, and abuse by requiring the creditor to disclose to the consumer certain information about the subject financing. (15 U.S.C. § 1601; see, e.g., 12 C.F.R. §§ 1026.17-1026.23 (2016).) It generally entitles a consumer who has secured a credit transaction with a lien on the consumer’s principal dwelling . . . to rescind a loan transaction within three business days. ([15 U.S.C.] § 1635(a).) Moreover, the rescission period is extended to ‘three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first,’ if the TILA disclosures (including notice of the right to rescind) are not provided. ([15 U.S.C.] § 1635(f); see 12 C.F.R. § 1026.23(a)(3)(i) (2016).)” (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 779-780.)
As these principles make clear, the failure by a lender to make required disclosures allows a borrower to rescind a home sale for up to three years. We construe Dehorney’s claim that someone forged her signature on the truth in lending disclosure form to allege her lender failed to give her the required disclosures. Her testimony to that effect would be sufficient to present the issue to the jury. Her claim fails nevertheless, because her right of rescission under the TILA extends only three years from the completion of the transaction. Thus, to the extent it concerns defects in disclosures related to the original deed of trust on her first loan, her claim is not timely.
We therefore conclude the trial court correctly granted summary judgment on Dehorney’s cancellation claim.
III
DISPOSITION
We affirm the judgment. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.