Diller v. JPMorgan Chase Bank CA2/6

Filed 6/30/16 Diller v. JPMorgan Chase Bank 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DENISE A. DILLER, 2d Civil No. B260857 (Super. Ct. No. 1439864) Plaintiff and Appellant, (Santa Barbara County)

v.

JPMORGAN CHASE BANK, N.A.

Defendant and Respondent.

Denise A. Diller appeals from a judgment in favor of JPMorgan Chase Bank, N.A. (Chase). The judgment was entered after the trial court sustained, without leave to amend, Chase's demurrer to Diller's second amended complaint (SAC). Diller does not contest the sustaining of the demurrer. She argues that the trial court abused its discretion in not granting leave to amend the SAC. We affirm. FACTS AND PROCEDURAL BACKGROUND In July 2007, Diller obtained a $1,800,000 loan from Washington Mutual Bank, FA (WaMu) to purchase real property located at 4317 Cuna Drive in Santa Barbara. The loan was evidenced by a promissory note and secured by a deed of trust on the property. The deed of trust identifies WaMu as the lender and beneficiary and California Reconveyance Company (CRC) as the trustee. The deed

of trust provides that the "Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower." In September 2008, the Federal Deposit Insurance Corporation (FDIC) was appointed as WaMu's receiver. The FDIC and Chase entered into a purchase and assumption agreement whereby Chase purchased WaMu's assets, which included many loans, including Diller's. Diller defaulted on her loan. In March 2011, CRC recorded a notice of default showing arrearages of $27,867.75. When Diller failed to cure the default, CRC recorded a notice of foreclosure sale. On January 21, 2014, the deed of trust was assigned to Chase by Chase as "attorney in fact" for the FDIC as receiver for WaMu. Chase thereafter substituted ALAW as trustee in place of CRC. The following week, Diller filed a complaint against Chase and ALAW for violations of the statutes governing nonjudicial foreclosures (Civ. Code, §§ 2924, 2924.17),1 cancellation of instruments and violation of Business and Professions Code section 17200 et seq. Chase demurred to the complaint and requested judicial notice of several documents, including the purchase and assumption agreement between the FDIC and Chase. The tentative ruling was to sustain the demurrer without leave to amend. Diller responded by filing a first amended complaint, which added a slander of title cause of action. Chase again demurred. The trial court sustained the demurrer and granted Diller leave to amend because "new counsel appeared at the hearing and argued for the opportunity to file an amended complaint . . . ." Diller's SAC dropped all of her claims except one and added 12 new causes of action: (1) injunctive relief, (2) declaratory relief, (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress,