Werner v. OneWest Bank Group CA2/6

Filed 9/23/15 Werner v. OneWest Bank Group CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

LLEWELLYN C. WERNER, AS 2d Civil No. B260032 TRUSTEE OF THE WERNER LIVING (Super. Ct. No. 56-2013- TRUST DATED 1/28/99, 00444503-CU-CO-VTA) (Ventura County) Plaintiff and Appellant,

v.

ONEWEST BANK GROUP, LLC, et al.,

Defendants and Respondents.

Llewellyn C. Werner, as Trustee of the Werner Living Trust dated 1/28/99, appeals from the judgment entered in favor of respondents OneWest Bank Group, LLC, and Deutsche Bank National Trust Company. The judgment was entered after the trial court had sustained respondents' demurrer without leave to amend. Appellant contends that the trial court erroneously concluded that he had failed to state causes of action for breach of an agreement to postpone a foreclosure sale and for negligently misrepresenting that the foreclosure sale would be postponed. We affirm.

Facts Our summary of the facts is based on appellant's first amended complaint and attached exhibits.1 Respondents refer to a second amended complaint, but the record on appeal contains no such document. We disregard the section in respondents' brief entitled "Statement of the Case." This section summarizes facts contained in documents that respondents asked the trial court to judicially notice. The court denied the request for judicial notice, and the documents are not included in the record on appeal. Appellant purchased two single family residences: one on Ocean Drive in Oxnard (the Ocean Drive Property) and the other on Calle Madrid in Rowland Heights (the Calle Madrid Property). Loans for the properties were secured by deeds of trust in favor of IndyMac Bank. In 2009 respondent OneWest Bank acquired IndyMac Bank's loan portfolio. In February 2011 the beneficial interest in the first deed of trust on the Ocean Drive Property was assigned to respondent Deutsche Bank. Appellant fell behind on the loan payments. On July 10, 2012, appellant and Nicholas Deal of IndyMac Mortgage Services, a division of OneWest Bank, orally agreed that appellant "would put the Calle Madrid Property up for sale and use the proceeds to bring the loan on the Ocean Drive Property current." Appellant wrote a letter to Deal confirming the agreement. He asked Deal to "please make sure foreclosure proceedings are not commenced on either property as this will complicate our lives." On April 18, 2013, Deal sent an email to appellant offering him "a 3 month Forbearance Plan while you attempt to sell your home [the Calle Madrid Property]." The forbearance plan required appellant to make three payments, each in the amount of $1,500. The payments were due on April 23, May 15, and June 15, 2013. Appellant accepted the offer. On April 22, 2013, he sent to Deal the signed forbearance agreement 1 In violation of rule 8.204(a)(2)(C) of the California Rules of Court, appellant's opening brief does not "[p]rovide a summary of the significant facts." (Ibid.) We elect to "[d]isregard the noncompliance." (Id., rule 8.204(e)(2)(C).) In view of appellant's omission of a summary of the facts, he "cannot be heard to complain that we have overlooked any . . . material facts. [Citation.]" (Lopez v. C.G.M. Development Inc. (2002) 101 Cal.App.4th 430, 436, fn. 2.)