Montenegro v. Bank of America CA2/8

Filed 4/22/15 Montenegro v. Bank of America CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

ESTEBAN MONTENEGRO, B255460

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. EC060050) v.

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

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Doyle, Judge. Reversed.

Esteban Montenegro, in pro. per.; and Steven E. Smith for Plaintiff and Appellant.

Bryan Cave, John W. Amberg and Sharon K. Brown for Defendants and Respondents.

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Plaintiff and appellant Esteban Montenegro sued Bank of America, N.A. and Recontrust Company, N.A. (collectively respondents) after it foreclosed on his real property. The trial court sustained a demurrer to Montenegro’s third amended complaint, and Montenegro now challenges the ensuing judgment of dismissal. Because we conclude he stated a cause of action for violation of Civil Code section 2924.171—which requires accurate and complete declarations in connection with a foreclosure—we reverse the judgment of dismissal. FACTS AND PROCEDURE According to the third amended complaint, on December 1, 2006, Montenegro entered an agreement to purchase property located at 9825 Sunland Boulevard in Sunland, California (Property). Montenegro obtained an adjustable rate note and deed of trust securing a loan on the property but, according to him, did not receive a signed copy of the deed of trust and note. The recorded deed contains Montenegro’s signature. According to the complaint, Recontrust Company was the trustee on the deed of trust. In 2009, there was a foreclosure sale. The trustee’s deed of sale was rescinded on March 9, 2012. At that time, Montenegro attempted to negotiate a new loan with Bank of America. Montenegro was not permitted on the Property because of the foreclosure sale and could not access his mail there. On October 2, 2012, Bank of America issued a new notice of default. The declaration attached to the October 2, 2012 notice of default was void because it was signed by a “robosigner” and was dated almost two years earlier. On January 4, 2013, Bank of America recorded a notice of trustee’s sale. The notice of trustee sale violated former section 2923.54 and was signed by a “robosigner” not qualified to sign the document. (Former section 2923.54 was repealed on January 1, 2011. The statute concerned loan modification programs.) A