Caplin v. U.S. Bank CA2/6

Filed 7/24/14 Caplin v. U.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BRUCE L. CAPLIN, 2d Civil No. B250032 (Super. Ct. No. 56-2012-00414752) Plaintiff and Appellant, (Ventura County)

v.

U.S. BANK, N.A., as Trustee, etc., et al.,

Defendants and Respondents.

Bruce L. Caplin appeals from the judgment entered after the trial court sustained a demurrer to his second amended complaint without leave to amend. Caplin filed this action against JP Morgan Chase Bank, N.A. (JPMC), California Reconveyance Company (CRC) and U.S. Bank, N.A. (U.S. Bank) to enjoin the sale of a property securing his promissory note and to recover monetary damages. He contends the illicit business plan of the originator of the loan – not a party to these proceedings – renders it invalid. We affirm. FACTUAL AND PROCEDURAL HISTORY In February 2007, Caplin executed a note for $700,000 that was secured by real property he owned in Ojai. Caplin conveyed an interest in the property to CRC to hold as security for the loan. The deed of trust gives the

lender/beneficiary the power to instruct the trustee to sell the property if Caplin failed to make the payments required by his note. The deed of trust identifies Washington Mutual Bank (WaMu) as the lender and beneficiary, CRC as the trustee, and Caplin as the borrower. Caplin's secured note was assigned to WaMu Asset Acceptance Corp. and then to HY4Trust, a pool of securitized loans that investors paid a WaMu subsidiary to service. In September 2008, the Office of Thrift Supervision declared WaMu to be a failed bank and appointed the Federal Deposit Insurance Corporation (FDIC) as its receiver. On September 25, 2008, FDIC transferred certain of WaMu's assets and liabilities to JPMC pursuant to a Purchase and Assumption Agreement that explicitly provides JPMC did not assume any liability for claims made for damages or for other relief arising out of the loans WaMu made before September 25, 2008. Caplin made payments on the loan until January 2011. He applied for a modification of the loan but his application was denied because his income was insufficient to warrant either a new loan or new loan terms. On August 31, 2011, the deed of trust was assigned to U.S. Bank and a notice of default and election to sell was recorded. As of August 29, 2011, Caplin was $25,773 in arrears. A Notice of Trustee's Sale was recorded on December 1, 2011, that declares Caplin then owed $745,887 on the loan. The trustee's sale was postponed and has not yet been rescheduled. Caplin has not tendered all or any part of the present balance of principal and interest due on the loan. Caplin's original complaint was superseded by a first amended complaint. Respondents' demurrers were sustained with leave to amend. Caplin's second amended complaint, filed on January 18, 2012, alleges his secured promissory note is invalid because (1) there was "no second party to [the] loan contract"; (2) the loan was "against public policy"; (3) the loan was "unlawful"; (4) the loan was "unconscionable"; (5) JPMC committed "fraud by omission" by not telling him his promissory note was invalid; and (6) the assignment of the deed of trust was fraudulent.