Salcedo v. Bank of America CA4/3

Filed 6/12/14 Salcedo v. Bank of America CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

HORACIO SALCEDO et al.,

Plaintiffs and Appellants, G048373

v. (Super. Ct. No. 30-2012-00574015)

BANK OF AMERICA, N.A., OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Law Offices of John Thomas Dzialo and John T. Dzialo for Plaintiffs and Appellants. Reed Smith, David S. Reidy, Matthew J. Brady, John Cooper Green and Michael Gerst for Defendant and Respondent.

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After plaintiffs and appellants, Horacio and Isabel Salcedo, defaulted on a mortgage loan, the predecessor in interest of defendant and respondent, Bank of America, N.A., foreclosed and then filed an unlawful detainer action. Plaintiffs sued defendant for fraud and quiet title. By the time plaintiffs filed the second amended complaint (SAC), the only cause of action against defendant was for quiet title. The court sustained defendant’s demurrer to the SAC without leave to amend on the ground that, because the property had been sold and plaintiffs had no interest in it, a quiet title action did not lie. Judgment was entered against plaintiffs. Plaintiffs appeal, claiming the trust deed securing the loan was void because the underlying note was forged. Thus the trustee’s deed is void because title never transferred to defendant. Plaintiffs also seek leave to amend. We conclude the demurrer was properly sustained because plaintiffs failed to plead tender or an adequate excuse from tender and there is no basis to grant leave to amend. Thus, we affirm. FACTS AND PROCEDURAL HISTORY According to the SAC, in 2007 plaintiffs were renting a residence (Property) from Graciela Cabrera. Graciela’s husband, Ausencio, and his son Michael were managers of Coastal Real Estate and Loan Center, owned by Joan Marie Lowrance. Ausencio allegedly induced plaintiffs to purchase the Property from Graciela. Lowrance brokered plaintiffs’ $532,000 loan from BSM Financial (BSM). Plaintiffs allege all of these parties, plus Ultimate Escrow Service and Omar Cabrera, who notarized documents, all named defendants, conspired to defraud them. Plaintiffs plead they signed a purchase agreement, loan application and fixed rate note. The loan closed in June 2007. BSM sold the loan to Countrywide Bank, FSB, predecessor in interest to defendant. In December 2007 plaintiffs received their first payment coupon from Countrywide and, “[t]o their dismay,” it showed an adjustable rate loan. On contacting Countrywide, plaintiffs learned it had purchased a loan