Mendoza v. HSBC Bank USA, Nat. Assn. CA4/3

Filed 4/28/16 Mendoza v. HSBC Bank USA, Nat. Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

FIDEL MENDOZA,

Plaintiff and Appellant, G050953

v. (Super. Ct. No. 30-2014-00714317)

HSBC BANK USA, NATIONAL OPINION ASSOCIATION, as Trustee, etc.

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. Affirmed. Law Office of Joseph De Clue, Joseph De Clue and Stephen F. Lopez for Plaintiff and Appellant. Green & Hall, Howard D. Hall and Kevin S. Kim for Defendant and Respondent.

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Plaintiff Fidel Mendoza defaulted on a loan secured by a promissory note and deed of trust (DOT) on residential property (property). Following several assignments of the DOT, the last one being to defendant HSBC Bank USA, National Association, as Trustee for Holders of BCAP LLC Trust 2006-AA2 (subject trust), the property was foreclosed on and sold at a trustee’s sale to defendant. Plaintiff filed a complaint for declaratory relief, wrongful foreclosure, quiet title, and cancellation of instruments, alleging the foreclosure sale was void because the assignment of the DOT to defendant was illegal. The trial court sustained defendant’s demurrer to the complaint without leave to amend. Relying on this court’s opinion in Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 515 (Jenkins), subsequently disapproved by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova), the court found plaintiff did not have standing to challenge the foreclosure based on transactions to which he was not a party and had failed to allege how he was prejudiced by the claimed defect in the loan transfer. Plaintiff contends this was error because under the laws governing Real Estate Mortgage Investment Conduit (REMIC) trusts, the loan here was untimely placed into the subject trust (based on the dates set forth in the trust’s Pooling and Servicing Agreement (PSA)), making the loan’s assignment to defendant invalid and the foreclosure sale void. He also argues he was not required to tender to defendant the amounts claimed due under the promissory note, as required in order to bring a wrongful foreclosure claim, because “as illustrated by the decision in Glaski v. Bank of America[ (2013) 218 Cal.App.4th 1079, 1100 (Glaski)], “‘[t]ender is not required where the foreclosure sale is void, rather than voidable, such as when a plaintiff proves that the entity lacked the authority to foreclose on the property.’” Lastly, plaintiff asserts the court erroneously relied on Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th