Brown v. Deutsche Bank National Trust Co.

Filed 5/09/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CECILIA E. BROWN, Plaintiff and Appellant, A144339 v. DEUTSCHE BANK NATIONAL TRUST (Alameda County COMPANY, as Trustee, etc., et al., Super. Ct. No. RG13688953) Defendants and Respondents.

Appellant Cecilia Brown defaulted on her home mortgage, and foreclosure proceedings commenced. She brought three lawsuits to stop the foreclosure by alleging that it was initiated on behalf of an entity to which the deed of trust was never validly assigned. In this third lawsuit, defendants Deutsche Bank National Trust Company (Deutsche Bank), JPMorgan Chase Bank, N.A. (Chase), and California Reconveyance Company (CRC) demurred to her amended complaint, and the trial court sustained the demurrer without leave to amend. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 2004, Brown obtained a $450,000 loan secured by a deed of trust recorded against her property in Oakland. The deed of trust identifies Washington Mutual Bank, F.A. (Washington Mutual) as the lender and beneficiary and CRC as the trustee. Washington Mutual failed in 2008, and the Federal Deposit Insurance Corporation (FDIC) was appointed its receiver. As receiver, the FDIC agreed to sell to Chase many of Washington Mutual‟s assets and liabilities, including loans, loan commitments, and

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mortgage-servicing rights. This transaction was memorialized in a September 2008 Purchase and Assumption Agreement (P&A Agreement). In March 2011, CRC recorded a notice of default as trustee for Chase, claiming that Brown was in arrears on her loan in the amount of $60,984.42. The next month, Chase assigned the deed of trust to Deutsche Bank with CRC remaining as the trustee. Two months after that, CRC recorded a notice of sale. In January 2012, Brown filed the first of three lawsuits challenging the foreclosure proceedings. Over the next year and a half, she voluntarily dismissed the first lawsuit without prejudice, filed a second lawsuit when a new notice of sale was executed, and, after defendants‟ demurrer was sustained with leave to amend, voluntarily dismissed that lawsuit without prejudice as well. In July 2013, CRC executed a third notice of sale. Two days later, Brown filed her third lawsuit, which is the case now before us. In her complaint, Brown alleged that the assignment of the deed of trust to Deutsche Bank was invalid and the foreclosure proceedings were initiated without authority. Defendants filed a demurrer and a request for judicial notice. In July 2014, the trial court granted the request for judicial notice, sustained the demurrer, and gave Brown leave to amend her complaint. This time, instead of dismissing the suit, Brown amended her complaint. In the amended complaint, she asserted six causes of action: cancellation of instruments under Civil Code1 section 3412; unfair competition under Business and Professions Code section 17200 et sequitur; foreclosure commenced by entity lacking a beneficial interest in violation of sections 2924, subdivision (a)(6) and “2924(f)(3)” [sic]; declaratory relief; and two causes of action for violation of the California Homeowner Bill of Rights (HBOR) (Assem. Bill No. 278; Sen. Bill No. 900 (2011-2012 Reg. Sess.)). No cause of action described as a claim for wrongful foreclosure was asserted, and there was no allegation that the property had been sold: rather, Brown alleged that she “continue[d] to be the