Mason v. Wells Fargo Bank CA2/6

Filed 7/30/14 Mason v. Wells Fargo Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JEANNIE MASON, 2d Civil No. B251976 (Super. Ct. No. 1416426) Plaintiff and Appellant, (Santa Barbara County)

v.

WELLS FARGO BANK, N.A.,

Defendant and Respondent.

Appellant Jeannie Mason and her husband obtained a home loan in 2003 and made payments for six years. In 2012, the lender initiated nonjudicial foreclosure proceedings. Mason filed this action seeking rescission and cancellation of the note and deed of trust, quiet title, restitution, damages, and injunctive relief. Citing numerous pleading defects, the trial court sustained respondent Wells Fargo Bank, N.A.'s demurrer to the first amended complaint without leave to amend. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In her first amended complaint, Mason alleged that on or about August 21, 2003, she and her husband entered into "some type of mortgage transaction" with Wells Fargo concerning the real property in Santa Barbara where she currently resides. Wells Fargo presented an application to Mason, which she completed and Wells Fargo accepted. Wells Fargo then presented Mason with a promissory note setting forth the mortgage's terms and conditions and instructed her to sign it, which she did. The note

was for the principal amount of $582,000 to be repaid over 30 years. For the first 10 years the annual interest rate was fixed at 5.25 percent and monthly payments were fixed at $3,213.83. Thereafter, both the interest rate and monthly payments were to become variable. Mason alleges that she "paid money on this mortgage transaction"—she does not say to whom—"for over 6 years at a total of $428,097.00." It is unclear whether this amount includes the "10% of the value of the loan [sic]" that Mason alleged she "gave . . . as a down payment." Wells Fargo never tendered "money or other tangible type of currency" to Mason and "did not use its own money from its vault to fund this transaction." Rather, it "monetized [Mason's] signature on the note to create negotiable instruments to facilitate a further sell, transfer or assignment of the 'Note' for profit within the Uniform Commercial Code system." The note was not counter-signed by an officer of Wells Fargo. On July 27, 2012, Mason received a notice of default from respondent First American Title Insurance Company indicating that First American, as either the original or substitute trustee or the agent for the trustee or beneficiary under the deed of trust, was foreclosing on the property on behalf of Wells Fargo.1 The notice informed Mason that as of July 25, 2012, she was behind on her payments in the amount of $17,011.87. Nowhere in her pleadings does Mason suggest that she will pay for the home. Mason filed this lawsuit on April 2, 2013. After the trial court sustained Wells Fargo's demurrer to the original complaint, Mason filed a first amended complaint containing substantially the same factual allegations and legal claims. The trial court sustained Wells Fargo's demurrer to the first amended complaint without leave to amend. This appeal followed. DISCUSSION "We review an order sustaining a demurrer de novo, exercising our independent judgment to determine whether a cause of action has been stated under any