Tervalon v. Bank of America CA2/6

Filed 12/1/14 Tervalon v. Bank of America 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KENNETH TERVALON et al., 2d Civil No. B254174 (Super. Ct. No. 58-2013- Plaintiffs and Appellants, 00430689-CU-OR-VTA) (Ventura County) v.

BANK OF AMERICA et al.,

Defendant and Respondent.

Borrowers on a note secured by a deed of trust on their residence bring this action to prevent foreclosure and for damages. They claim transfers of the debt have made it impossible for the bank and its agents to prove they have the power to initiate foreclosure. The trial court sustained the bank's demurrer to the second amended complaint without leave to amend. We affirm the ensuing judgment. FACTS The second amended complaint alleges as follows: In April 2007 Kenneth and Marie Tervalon obtained a loan from the Bank of America (BofA) secured by a deed of trust on their residence in Simi Valley, County of Ventura. BofA later attempted to transfer the note into an investment trust. There is, however, no record of any assignment prior to the closing of the trust on September 27,

2007. The attempted assignment was a failed attempt to transfer and securitize the Tervalons' note. The claim of endorsements on the note has been broken and the beneficial interest in the note cannot be proven. The Tervalons fell behind on their payments.1 In August 2011 Quality Loan Service Corporation was substituted as trustee under the deed of trust, and a notice of default was recorded. (BofA and Quality are hereafter collectively "BofA" unless the context indicates otherwise.) BofA intentionally deceived the Tervalons by claiming they would be reviewed for loan modifications. While review was pending, no foreclosure proceedings would be commenced. BofA commenced foreclosure proceedings and caused multiple notices of sale to be recorded. BofA made the representation in order to induce the Tervalons to forestall pursuing any other means or remedies they had to fight the pending wrongful foreclosure. The complaint does not allege that foreclosure has taken place and BofA claims it has not. The Tervalons' complaint alleges causes of action for cancellation of void contract, quiet title, fraud, violation of Business and Professions Code section 17200 et seq. and declaratory relief. The trial court sustained the BofA's demurrer to the second amended complaint without leave to amend. DISCUSSION I. The function of a demurrer is to test whether, as a matter of law, the facts alleged in the complaint state a cause of action under any legal theory. (Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4th 1047, 1052.) We assume the truth of all facts properly pleaded, as well as facts of which the trial court properly took judicial