Van Horst v. JP Morgan Chase Bank CA2/6

Filed 7/22/13 Van Horst v. JP Morgan Chase Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

EZIO AUGUSTO VAN HORST, et al., 2d Civil No. B241982 (Super. Ct. No. 56-2009- Plaintiffs and Appellants, 00360919-CU-OR-SIM) (Ventura County) v.

JP MORGAN CHASE BANK, N.A., et al., Defendants and Respondents.

Ezio and Vergie Van Horst appeal from the judgment entered after the trial court sustained, without leave to amend, a demurrer to their fourth amended complaint. Appellants filed this action against the beneficiary and trustee of the deed of trust securing their home loan, alleging respondents breached a contract to modify the terms of the loan. Alternatively, appellants alleged, respondents' refusal to modify the loan created a cause of action for promissory estoppel. The trial court found no "reasonable probability" appellants could amend their complaint to state a cause of action on either theory because they had not identified the terms of any executed contract and because they had previously asked the court to take judicial notice of a letter in which appellants acknowledged that respondents had not promised to renegotiate or modify the loan. Appellants now contend the trial court erred in concluding they had not alleged a cause of action for promissory estoppel, in relying on the letter and in using "reasonable

probability" rather than "reasonable possibility" as the standard for determining whether to grant leave to amend. We affirm. Facts Appellants financed the purchase of their house in Simi Valley with a loan secured by a deed of trust on the property. Respondents are the beneficiary and trustee of the deed of trust. As relevant here, appellants' fourth amended complaint alleges that they filed for bankruptcy protection in August 2009. In September 2009, appellants filed an adversarial complaint against respondents in the bankruptcy action. Appellants allege that counsel for respondents assured them respondents would renegotiate the terms of their loan if appellants dismissed the adversarial complaint. They did so, but the loan has still not been renegotiated and respondents are threatening to initiate a foreclosure proceeding. In opposing respondents' demurrer to their second amended complaint, appellants requested that the trial court take judicial notice of correspondence between the parties. One of the letters included in the request for judicial notice was written by appellant Ezio Van Horst and was sent to an attorney representing respondent Chase Home Finance LLC. It states: "Based on our conversation you stated to me that if I voluntarily dismiss the Adversary Complaint that you and/or attorney Chris Yoo would send me the Loan Modification documents to begin and/or to pursue negotiations of a loan modification/workout of our secured property 25 Humboldt St., Simi Valley, CA 93065 with your client Chase again. [¶] I understand that there is no guarantee that a loan modification will be granted that it is dependent on your client Chase to review the information provided and to accept or grant a Loan Modification/Workout. However what assurances do I have that we will be provided the necessary time to actually try and work on a Loan Modification/Workout with your client Chase before any foreclosure sale is scheduled?" Appellants' fourth amended complaint attempts to allege a cause of action for promissory estoppel, based on respondents' breach of a promise to renegotiate or modify the terms of the loan. Relying on the letter quoted above, the trial court sustained