Rochambeau v. Wells Fargo Bank CA1/1

Filed 8/21/14 Rochambeau v. Wells Fargo Bank CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

RODRIQUE ROCHAMBEAU et al., Plaintiffs and Appellants, A139088 v. WELLS FARGO BANK, N.A. et al., (Humboldt County Super. Ct. No. DR120434) Defendants and Respondents.

Plaintiffs Rodrique Rochambeau and Prince Song Cambilargiu appeal, in propria persona, from a judgment of dismissal following the sustaining, without leave to amend, of demurrers by defendants Wells Fargo Bank, N.A. (Wells Fargo) and HSBC Bank USA, N.A. (HSBC). On appeal, plaintiffs contend they alleged sufficient facts in their first amended complaint to support causes of action for breach of contract, wrongful foreclosure, and quiet title. We conclude otherwise and affirm the judgment of dismissal. BACKGROUND In December 2005, plaintiff Rodrique Rochambeau obtained a $359,650 loan from First Magnus Financial Corporation (First Magnus) secured by a deed of trust that named Mortgage Electronic Registration Systems, Inc. (MERS) as beneficiary and sole nominee for the lender, its successors, and assigns. In 2006, Wells Fargo became the servicer of Rochambeau’s loan. By the end of 2008, Rochambeau was behind in his payments by $24,348.29, and NDex West, LLC (NDex), “as agent for Beneficiary,” recorded a notice of default in

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December of that year, despite not being formally substituted as trustee under the deed of trust until January 2009. Also in January 2009, MERS, as nominee for First Magnus, assigned the deed of trust to HSBC, as “TRUSTEE FOR DBALT 2006-AFI.” According to plaintiffs, the recordation of the deed of trust was irregular because it was done over three years after the mortgage pool trust, DBALT 2006-AFI, allegedly closed in March of 2006. In June 2011, the property was sold through a foreclosure sale. The balance then due on Rochambeau’s loan was $452,880.08. Two months after the sale, Cambilargiu, on behalf of Rochambeau, sent Wells Fargo a “draft” in the amount of $387,500.1 The document, which plaintiffs attached to their operative pleading, did not identify an account from which funds could be taken and required the bearer to process the draft through the Department of Treasury. In 2012—a year after the trustee’s sale and his interest in the property ended— Rochambeau recorded a quitclaim deed, purportedly transferring a 5 percent interest in the property to plaintiff Cambilargiu. Later that year, Rochambeau and Cambilargiu filed a complaint against Wells Fargo, HSBC and First Magnus. Amongst various causes of action, plaintiffs asserted three against Wells Fargo and HSBC: breach of contract, quiet title, and wrongful foreclosure. Wells Fargo and HSBC demurred to the initial complaint. As to the breach of contract, quiet title, and wrongful foreclosure claims, Wells Fargo and HSBC primarily argued plaintiffs had not alleged tender of the full loan obligation. The trial court sustained the demurrers as to these three causes of action, but granted plaintiffs leave to amend. 1 At defendants’ request, the trial court took judicial notice of the date of the foreclosure sale. Taking judicial notice of the legal effect of recorded documents, on demurrer, is appropriate, even if they contradict allegations of a complaint. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264–267 (Fontenot) [“a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity”].)