Selzer v. HSBC Bank USA CA1/3

Filed 10/31/13 Selzer v. HSBC Bank USA CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

I. LIONEL SELZER, Plaintiff and Appellant, v. A136528 HSBC BANK USA, N.A., et al., (Marin County Defendants and Respondents. Super. Ct. No. CIV1100824)

Plaintiff I. Lionel Selzer, acting in propria persona, appeals from a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend. Selzer does not challenge the order sustaining the demurrer but instead claims the judgment should be set aside because the trial court erred in ruling on two earlier, nondispositive motions—a defense motion to dissolve a preliminary injunction and a motion by Selzer seeking leave to amend the complaint to add a defendant. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND We begin by noting that the record of what transpired in the trial court is far from complete. Where necessary to understand the procedural history of the case, we will refer to the register of actions supplied by the trial court. The operative complaint below is the third amended verified complaint for damages (hereafter, third amended complaint), which Selzer filed on April 26, 2012. According to the third amended complaint, Selzer stopped making mortgage payments to his lender in 2008 after he suffered a financial setback. He allegedly sought to modify or

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restructure the loan secured by his residence but failed in that effort. He alleges the lender proceeded to foreclose even though it failed to comply with a statute requiring a mortgagee to explore options to avoid foreclosure. Selzer asserts ten causes of action in the third amended complaint, including claims for breach of contract, quiet title, fraud, unfair business practices, and violation of Civil Code section 2932.6. Selzer seeks to set aside the foreclosure sale and requests compensatory and punitive damages. Respondents HSBC Bank USA, N.A. (HSBC) and OneWest Bank, F.S.B. (OneWest) are named as defendants in the third amended complaint. The lawsuit was originally filed in 2011, as confirmed by the register of actions. In July 2011, the trial court issued a preliminary injunction preventing the defendants from selling the subject property or removing Selzer from the property as long as he paid $1,500 per month in rent. In August 2011, the trial court dissolved the preliminary injunction on the ground that Selzer had failed to comply with his obligation to pay reasonable rent. The record before this court does not include the original preliminary injunction, the motion to dissolve the preliminary injunction, or the order dissolving the preliminary injunction. The only pleading or order in the record that relates to the preliminary injunction is a copy of Selzer’s opposition to the motion to dissolve the preliminary injunction. The register of actions reflects that Selzer moved to amend the complaint at some point in the first half of 2012. The trial court granted the motion in part but denied Selzer’s request to add a new party. In his appellate brief, Selzer claims he sought to add as a defendant Merscorp, Inc. dba Mortgage Electronic Registration System, Inc. (MERS). The record on appeal does not include any of the pleadings or orders related to Selzer’s motion to amend the complaint. Following the ruling allowing Selzer to file an amended complaint, he filed his third amended complaint, which is the operative complaint described above. HSBC and OneWest filed a demurrer to the third amended complaint. In their brief in support of the demurrer, HSBC and OneWest pointed out that the subject property had been sold to HSBC in a foreclosure sale conducted in 2010. Among other arguments advanced by