Nassiri v. Green Tree Servicing CA2/6

Filed 9/20/16 Nassiri v. Green Tree Servicing CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CHRIS NASSIRI et al., 2d Civil No. B269582 (Super. Ct. No. 56-2014-00448803-CU- Plaintiffs and Appellants, OR-VTA) (Ventura County) v.

GREEN TREE SERVICING, LLC,

Defendant and Respondent.

Chris Nassiri and Kelly Nassiri appeal from a judgment entered in favor of Green Tree Servicing, LLC, respondent. The trial court sustained, without leave to amend, respondent’s demurrer to eight of nine causes of action in appellants’ first amended complaint (“complaint”). It granted respondent’s motion for summary judgment on the sole remaining cause of action. Appellants do not contest the granting of the motion for summary judgment. They argue that the trial court erroneously sustained the demurrer to three causes of action and abused its discretion in not permitting them to amend their complaint. We affirm. Facts1 In 2004 appellants purchased a condominium in Simi Valley for $394,000. In 2007 appellants executed a promissory note for $405,000. The lender was America’s

1 The facts are taken from the complaint.

Wholesale Lender, Inc. The note was secured by a deed of trust on the condominium. Respondent is the “current servicer of the loan.” In October 2013 a notice of default and election to sell the condominium was recorded. In January 2014 a notice of trustee’s sale was recorded. The sale was scheduled for February 20, 2014. On February 13, 2014, appellants sent to respondent a loan modification application and requested that it postpone the sale date. The sale was postponed. On February 19, 2014, appellants “submitted a complete first lien loan modification application to [respondent].” “On or about May 12, 2014, there was a scheduled sale date, but this was cancelled.” Order Sustaining the Demurrer: Causes of Action at Issue Appellants challenge the sustaining of the demurrer to only three causes of action: the fourth, fifth, and seventh. The fourth cause of action alleged that, in violation of Civil Code section 2923.5, respondent had failed to “initiate contact with [appellants] prior to issuing the Notice of Default” and was not “willing to work with them in order to discuss [their] financial condition and the options available to avoid foreclosure.” The fifth cause of action alleged that respondent’s conduct constitutes unfair and fraudulent business practices in violation of Business and Professions Code section 17200 et seq. The seventh cause of action alleged that respondent had negligently failed to properly process appellants’ loan modification application. Standard of Review for Order Sustaining Demurrer “A demurrer tests the legal sufficiency of factual allegations in a complaint. [Citation.] A trial court’s ruling sustaining a demurrer is erroneous if the facts alleged by the plaintiff state a cause of action under any possible legal theory. [Citations.]” (Lee Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 73, 78.) “[W]e apply the de novo standard of review in an appeal following the sustaining of a demurrer . . . .” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “[W]e assume the truth of all facts properly pleaded in the complaint and its exhibits or attachments, as well as those facts that may fairly be implied