Abuan v. Nationstar Mortgage CA4/2 (2015) · DecisionDepot
Abuan v. Nationstar Mortgage CA4/2
California Court of Appeal Sep 15, 2015 No. E061047Unpublished
Filed 9/15/15 Abuan v. Nationstar Mortgage CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
MHARLOWE ABUAN et al.,
Plaintiffs and Appellants, E061047
v. (Super.Ct.No. MCC1301305)
NATIONSTAR MORTGAGE LLC, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.
Affirmed.
Thomas W. Gillen for Plaintiffs and Appellants.
Law Offices of Les Zieve, John C. Steele and Stephen D. Britt for Defendant and
Respondent.
1
Plaintiffs and appellants Mharlowe and Shannon Abuan are property owners who
have defaulted on a real estate loan. They appeal from a judgment of dismissal, entered
after the court sustained defendant and respondent Nationstar Mortgage LLC’s demurrer
to the first and second causes of action of their first amended complaint (FAC) without
leave to amend. Plaintiffs argue that the court lacked jurisdiction to sustain the demurrer
to the first cause of action and that they pled sufficient facts to support the first and
We base our summary of the facts on the complaint and the real property records
attached to defendant’s request for judicial notice. (Etheridge v. Reins Internat.
California, Inc. (2009) 172 Cal.App.4th 908, 914 [courts may consider matters which
may be judicially noticed when reviewing a ruling on a demurrer].)1 Plaintiffs purchased
a property in Temecula in 2005 and secured a loan against the property in the amount of
$458,550. In August 2005, plaintiffs entered into a Second Modification and Additional
1 “[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. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)
2
Advance Agreement with Bank of America, N.A.2 Plaintiffs subsequently defaulted on
their loan obligation. On August 4, 2011, Recontrust Company, N.A. recorded a notice
of default and, on November 7, 2011, recorded a notice of trustee’s sale.3
In September 2012, plaintiffs applied for a first loan modification with Bank of
America. In October 2012, Bank of America gave plaintiffs a trial payment plan, which
required them to make three consecutive payments in the amount of $3,718.26 over the
next three months. Because the trial payment amount was higher than their original
monthly mortgage payment, plaintiffs believed the amount was in error and they
“requested in writing that Bank of America provide an accounting.” Bank of America
allegedly told plaintiffs that they were only entitled to “such detailed accounting” if their
modification application was denied.
On February 27, 2013, following plaintiffs’ participation in the trial payment plan,
Bank of America sent them “a letter of approval for a loan modification.” Plaintiffs
“appealed” this offer.
2 Bank of America, N.A., a named defendant in the original complaint and the FAC, is not a party to this appeal. In their opening brief, plaintiffs state that Bank of America is no longer involved in this case.
3 Recontrust Company, N.A. is also a named defendant in the original complaint and the FAC, and also is not a party to this appeal.
3
On March 3, 2013, Bank of America recorded a notice of trustee’s sale. On March
30, plaintiffs “submitted a new loan modification application” to Bank of America. On
April 9, Bank of America denied plaintiffs’ application. On May 5, a notice of trustee’s
sale was recorded.4 In August 2013, plaintiffs received notice that defendant was taking
over the servicing of plaintiffs’ loan, effective September 1, 2013.
Plaintiffs filed their original complaint on September 9, 2013, asserting the
following two claims against defendant: (1) a claim styled as an injunction and based on
alleged violations of the Homeowner Bill of Rights (HBOR);5 and (2) accounting.
Defendant demurred to both claims, arguing that the HBOR claim was preempted by
federal law and that the accounting claim failed because plaintiffs failed to allege that it
owed them money. The court (Judge Bruce Disenhouse) overruled the demurrer to the
HBOR claim on the ground that federal law did not preempt plaintiffs’ claim. The court
sustained the demurrer on the accounting claim on the ground that plaintiffs had not
alleged that defendant owed them money.
4 Plaintiffs allege that an unspecified “Defendant” recorded the notice.
plaintiff is not entitled to seek an equitable remedy where there is an available and
adequate legal remedy].)
Second, even if we assume plaintiffs could obtain an equitable remedy where the
statute provides a legal remedy, plaintiffs have not pled a RESPA violation. In order to
do so, they “must cite the specific provisions of RESPA that defendant [is] alleged to
have violated.” (Kelley v. Mortg. Electronic Registration Systems (N.D. Cal. 2009) 642
F.Supp.2d 1048, 1058.) The FAC contains no citations to RESPA provisions; it simply
alleges that defendant “has not responded to plaintiffs’ QWR ‘Qualified Written Request’
as required under RESPA.” Plaintiffs have failed to state which provision of RESPA
defendant’s failure to respond violated and they have failed to allege facts to support a
finding that a failure to respond even constitutes a RESPA violation. Additionally, many
courts have held that RESPA “require[es] a showing of pecuniary damages in order to
11
state a claim.” (See, e.g., Allen v. United Financial Mortg. Corp. (N.D. Cal. 2009) 660
F.Supp.2d 1089, 1097 [“This pleading requirement has the effect of limiting the cause of
action to circumstances in which plaintiffs can show that a failure of notice has caused
them actual harm”].) Plaintiffs have not alleged that defendant’s failure to respond to
their “Qualified Written Request” caused them pecuniary harm. They alleged only that
they are “entitled to attorney fees and costs.” This allegation does not salvage plaintiffs’
claim. A “ ‘conclusory allegation that as a result of defendants’ failure to respond,
defendants are liable for actual damages, costs, and attorney fees’ ” is insufficient to state
an allegation of actual pecuniary harm. (Ibid.)
Plaintiffs do not address these flaws in their accounting claim. Instead, they cite to
various provisions of RESPA and offer the conclusory statement that “a reasonable
reading of [those] authorities is that they establish a legal relationship that permits
Appellants to state a cause of action for accounting.” Plaintiffs have not met their burden
of affirmatively demonstrating error in the court’s ruling sustaining the demurrer to the
accounting claim. (Fonteno v. Wells Fargo Bank, N.A., supra, 228 Cal.App.4th at
p. 1380.) We therefore affirm the court’s ruling sustaining defendant’s demurrer.
5. Leave to Amend
It is plaintiffs’ burden to demonstrate how a complaint could be amended to state a
cause of action. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
12
Because plaintiffs do not discuss amendment, we conclude that the trial court did not
abuse its discretion in denying leave to amend. (Ibid.)
III
DISPOSITION
We affirm the judgment. As the prevailing party, defendant shall recover its costs
on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
13
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the dismissal of the plaintiffs' complaint, holding that the plaintiffs failed to state a claim for violations of the Homeowner Bill of Rights (HBOR) or for an accounting against the defendant mortgage servicer.
Issues
Whether the trial court had jurisdiction to sustain a demurrer to a cause of action that a previous judge had overruled in an earlier complaint.
Whether the plaintiffs sufficiently pled a violation of the Homeowner Bill of Rights (HBOR) regarding dual tracking.
Whether the plaintiffs sufficiently pled a cause of action for an accounting.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Where a plaintiff adds new allegations to a claim, as plaintiffs did here, a defendant can demur to that claim regardless of whether the court overruled a previous demurrer to the same claim.”
“In short, plaintiffs cannot allege that defendant engaged in dual tracking.”
“Plaintiffs do not allege that defendant owes them money, and therefore they did not state a claim for an accounting.”