McIntyre v. BNC Mortgage CA2/3

Filed 8/14/14 McIntyre v. BNC Mortgage CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

GAIL JOHNSON-MCINTYRE, B200061

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. YC050841 v. c/w YC054052)

BNC MORTGAGE, INC., et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew Kaufman, Judge. Stay lifted. Appeal dismissed. Law Offices of Tshombe Sampson and Tshombe Sampson for Plaintiff and Appellant. Houser & Allison, Eric D. Houser and Jeffrey S. Allison for Defendants and Respondents. _________________________

INTRODUCTION Gail Johnson-McIntyre (appellant) appealed from the judgment entered against her after the trial court sustained the demurrer of defendant BNC Mortgage, Inc. (BNC), among others, and denied her leave to amend. We reversed the judgment with respect to the cause of action alleged against BNC for cancellation of trust deed and other instruments secured by appellant’s real property. However, BNC filed for bankruptcy court protection (In re BNC Mortgage LLC (case No. 09-10137-SCC) (BNC bankruptcy) and so we stayed our disposition as to appellant pending notification from the bankruptcy court. We have since received notification from BNC of a plan confirmation in the BNC bankruptcy precluding all claimants in that proceeding from pursuing any claim against BNC. Meanwhile, BNC obtained a separate judgment against appellant finally adjudicating BNC’s rights in the trust deed secured by appellant’s property. Therefore, the instant appeal is moot and so we lift the stay and dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND 1. Appellant’s lawsuit against BNC Appellant’s complaint against BNC, among others, sought inter alia cancellation of a trust deed and other instruments secured by appellant’s real property. On February 19, 2009, this court filed its opinion in this case reversing the order sustaining BNC’s demurrer to that cause of action. We concluded, although appellant’s cause of action for cancellation of instruments did not identify a defendant, and although the allegations about whether the trust deeds were cancelled were vague, that appellant could amend her complaint to state a cause of action against BNC for cancellation of the trust deed. Our opinion holds only that appellant should be allowed to amend her complaint to state a cause of action. We made no statement, and reached no conclusion, about whether appellant would eventually succeed on such a cause of action against BNC.