Tustin v. Bank of America CA6

Filed 7/31/14 Tustin v. Bank of America CA6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

WAYNE TUSTIN, 2d Civil No. B251211 (Super. Ct. No. 1402435) Plaintiff and Appellant, (Santa Barbara County)

v.

BANK OF AMERICA, N.A., et al.,

Defendant and Respondent.

Wayne Tustin appeals a judgment entered after the trial court sustained a demurrer to his second amended complaint without leave to amend. (Code Civ. Proc., § 581d.) Appellant's action seeks (1) to rescind the secured promissory note and deed of trust he executed in favor of Countrywide Bank, N.A. (Countrywide); (2) to enjoin foreclosure proceedings emanating from his default; and (3) to recover compensatory and punitive damages. We affirm. FACTUAL AND PROCEDURAL HISTORY On March 25, 2008, Appellant executed a promissory note for $1 million that was secured by real property he and his wife owned in Santa Barbara. The deed of trust identifies Countrywide as the lender, ReconTrust Company (ReconTrust) as the trustee and "MERS" as the lender's nominal

beneficiary. The deed of trust invests the trustee with a power of sale in the event the borrowers default. The loan closed and, based upon the recording date of the deed of trust, it appears the funds were distributed on or about April 1, 2008. In July 2008, Bank of America (the Bank) and Countrywide merged. Appellant made monthly payments of $4,895 until July 2011. On October 19, 2011, MERS assigned its beneficial interest in the deed of trust executed by Appellant to the Bank. The assignment was recorded on October 25, 2011. The Bank then instructed ReconTrust to execute and record a Notice of Default and Election to sell the property securing Appellant's promissory note. Appellant's arrearage at that time was said to be $44,835.59. A Notice of Trustee's Sale has not yet been scheduled. In April 2012, Appellant sent the Bank a letter declaring he was rescinding the promissory note and deed of trust. He has never tendered the balance of the principal and interest due on the loan or any part of it. On June 22, 2012, Appellant filed the first version of his complaint against Respondents. Respondents' demurrers were sustained with leave to amend. On October 11, 2012, Appellant filed a first amended complaint that also drew a demurrer that was sustained with leave to amend. The most recent version of Appellant's second amended complaint was filed on March 25, 2013. The second amended complaint alleges that Countrywide did not make a loan to him. Instead, he claims that he was induced to execute a promissory note that was "later monetized . . . to create some sort of 'Bearer Instrument' which [Countrywide] later sold to third party-investors." He asserts Countrywide then counted "Appellant's obligation as an asset at a 'hyper-inflated value in a transaction account for the purpose of creating new money for itself without disclosure to [Appellant].'" Appellant alleged that Countrywide's practice was an "investment transaction scheme" that "duped [him] into loaning himself his own []money." Appellant asserts that Countrywide did not disclose its strategy to him and contends it was unjustly enriched at his expense.