Brown v. Foigelman CA4/3

Filed 10/8/13 Brown v. Foigelman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CYNTHIA LOUISE BROWN,

Plaintiff and Appellant, G048422

v. (Super. Ct. No. 30-2008-00113526)

MARTIN FOIGELMAN et al., OPINION

Defendants and Respondents;

THE BANK OF NEW YORK MELLON,

Defendant and Appellant.

Appeal from judgments of the Superior Court of Orange County, Luis A. Rodriguez and William D. Claster, Judges. Motion to dismiss appeal granted. Appeal dismissed as to Respondent America‟s Servicing Company. Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton and Jon D. Ives, for Defendant and Respondent America‟s Servicing Company.

Glaser Weil Fink Jacobs Howard Avchen & Shapiro, Andrew Baum and Craig H. Marcus, for Defendant and Appellant The Bank of New York Mellon. * * * THE COURT:* We dismiss plaintiff‟s appeal as to respondent America‟s Servicing Company (ASC) as untimely. I Plaintiff sued multiple defendants in connection with an allegedly fraudulent deed of trust recorded against her property. Plaintiff included ASC, which serviced the loan, as a named defendant, along with defendant The Bank of New York Mellon (“Bank”), and others. ASC demurred to the sixth and eighth causes of action of plaintiff‟s third amended complaint, which were the only causes of action directed against ASC. In March 2010, the court (Judge Rodriguez) sustained ASC‟s demurrer without leave to amend. In May 2010, the court signed and filed an order dismissing ASC from the litigation with prejudice. Plaintiff never appealed from the signed order of dismissal. Following the dismissal order, plaintiff‟s lawsuit proceeded against the remaining defendants. The operative complaint is the fifth amended complaint. In September 2012, plaintiff filed a notice of motion to file a sixth amended complaint to allege “newly discovered facts regarding the failure to have been given notice of her right to cancel [the loan in this case] and failure to have been given two copies of the document to use for cancellation.” In November 2012, the court denied plaintiff‟s motion to amend.