De Nunzio v. J.P. Morgan Chase CA2/6

Filed 7/27/16 De Nunzio v. J.P. Morgan Chase CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

HERMAN A. DE NUNZIO ET AL., 2d Civil No. B267949 (Super. Ct. No. 1459423) Plaintiffs and Appellants, (Santa Barbara County)

v.

J.P. MORGAN CHASE N.A.,

Defendant and Respondent.

Proceeding in propria persona, appellants Herman A. De Nunzio and Vivi M. De Nunzio appeal from a judgment of dismissal in favor of respondent JPMorgan Chase Bank, N.A., erroneously sued as “J.P. Morgan Chase N.A.” The judgment was entered after the trial court had sustained, without leave to amend, respondent’s demurrer to appellants’ Fourth Amended Complaint. We affirm. Facts In November 2004 a deed of trust encumbering appellants’ Solvang residence was recorded. The deed of trust secured a $520,000 loan to appellants from Washington Mutual Bank. In 2008 respondent became the successor in interest to Washington Mutual.1 On March 30, 2011, respondent sent an “Annual Escrow Account Statement” to appellants. The statement said that the escrow account “is used to pay

1 In their opening brief, appellants allege that respondent “acquired [Washington Mutual] through an order by the FDIC.”

items such as your property taxes and insurance premiums when they are due.” The statement informed appellants that they had an “escrow account shortage” of $19,760.94. By a check dated July 11, 2011, appellants paid the $19,760.94. On July 28, 2011, California Reconveyance Company (CRC), a debt collector, wrote appellants a letter stating that their home loan was delinquent in the amount of $34,388.32 because they had failed to make 11 monthly payments. CRC did not mention the $19,760.94 that appellants had paid to cover the escrow account shortage. On September 20, 2011, appellant Herman De Nunzio sent an email to Ronald Anderson, the manager of respondent’s Santa Maria branch office. Appellant said that CRC had “called and told [him] that [he] owed $38,800.” Anderson replied: “I was told that money [the $19,760.94 paid by appellants in July] went towards your delinquent property taxes. The $38,000+ is for delinquent loan paymen[ts and] . . . the loan was approximately 1 year behind.” In March 2012 the residence was sold for $253,952 at a nonjudicial foreclosure sale. The amount of the unpaid debt together with costs was $585,378.64. Fourth Amended Complaint The Fourth Amended Complaint consists of three causes of action: declaratory relief, accounting, and unfair business practices. In the cause of action for declaratory relief, appellants “claim that there is a credit due, and owing, based upon their payment [to respondent] of a lump sum of $19,760.94 on 7/11/2011, and that [respondent] never paid all of such sums on taxes to the County of Santa Barbara.” Appellants assert: “A determination is required . . . as to the parties’ duties and obligation as to the disputed funds.” The cause of action for an accounting seeks “an explanation as to the dispersal, credit, or disposition of the funds paid by [appellants] to [respondent] as loan payments and impound charges for tax payments.” The cause of action for unfair business practices alleges that respondent failed “to actually credit, account for, and administer the escrow impound accounts, in their custody, care, and