McCann v. J.P. Morgan Chase Bank CA1/2

Filed 4/16/14 McCann v. J.P. Morgan Chase Bank CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

WILLIAM D. McCANN, Plaintiff and Appellant, A137413 v. J.P. MORGAN CHASE BANK, et al., (Contra Costa County Super. Ct. No. CIV MSC 1101729) Defendants and Respondents.

I. INTRODUCTION In November 2011, appellant, a Nevada attorney, and his former wife, Debra McCann, filed a 13-cause of action first amended complaint against respondents seeking to set aside a trustee’s sale of a piece of residential property in Danville, Contra Costa County, apparently occupied by Ms. McCann. Appellant was a plaintiff as to only one of the 13 causes of action, one for quiet title. The trial court sustained respondents’ demurrer to that cause of action and entered judgment in favor of respondents and against appellant on that cause of action because appellant had failed to allege that he had title to any portion or interest in the property. We agree and affirm the subsequent judgment entered in favor of respondents and against appellant. II. FACTUAL AND PROCEDURAL BACKGROUND In June 2007, Ms. McCann, then an “unmarried woman,” secured a $1 million loan from Washington Mutual Bank, F.A., a predecessor in interest to respondent J. P. Morgan Chase Bank (Chase), in order to purchase a house on Kuss Road in Danville. The loan papers did not show appellant as a borrower. Indeed, previously, i.e., via an

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Interspousal Transfer Deed recorded on February 14, 2002, appellant had conveyed any ownership interest he may have had in the Danville property to Ms. McCann. In September 2008, Chase acquired many assets and liabilities of Washington Mutual, including its interest in that loan. In, apparently, 2011, Ms. McCann defaulted on the loan. A “Notice of Default and Election to Sell Under Deed of Trust” was recorded on February 8, 2011, with the Contra Costa County Recorder’s Office. On May 9, 2011, a Notice of Trustee’s Sale in connection with the deed of trust was recorded in the same office; it indicated that a trustee’s sale would take place on May 31, 2011. On July 27, 2011, appellant and Ms. McCann filed their original complaint, containing 14 causes of action against respondents Chase and California Reconveyance Company. The following day, July 28, they filed an Application for an Order to Show Cause (OSC) and temporary restraining order. On August 26, 2011, respondents filed a demurrer to that complaint and all of its causes of action. A hearing on the OSC was held on September 16, 2011. In its opinion after that hearing, the trial court denied the McCanns’ request for a preliminary injunction, stating that their arguments based on Civil Code section 2923.5 and other bases “lack merit,” and that the court was “concerned about what is apparently a continuing deterioration in the physical condition of the subject residence.” With regard to the demurrer filed the previous month by respondents, rather than opposing it, Ms. McCann and appellant opted to file a First Amended Complaint (FAC) on November 8, 2011. It consisted of 13 causes of action, only one of which named appellant as a plaintiff, i.e., the 10th cause of action for Quiet Title. It alleged that respondent Chase “has cast a cloud on the Plaintiff William D. McCann’s undivided 10% (Ten percent) interest in the property.” Ms. McCann was not a party plaintiff as to that cause of action. On June 22, 2012, respondents filed a demurrer to the FAC and all of its causes of action. As to the 10th cause of action, that pleading stated that it failed to state facts sufficient to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e).