Bookout v. MUFG Union Bank CA2/6

Filed 9/28/16 Bookout v. MUFG Union Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

WILLIAM A. BOOKOUT, 2d Civil No. B269942 (Super. Ct. No. 15CV-0265) Plaintiff and Appellant, (San Luis Obispo County)

v.

MUFG UNION BANK,

Defendant and Respondent.

William A. Bookout brought an action against a bank for breach of contract, fraud, perjury, breach of fiduciary duty and negligence. The trial court sustained the bank’s demurrer on the grounds of res judicata and statute of limitations without leave to amend. We affirm the ensuing judgment in favor of the bank. FACTS First Amended Complaint Bookout’s first amended complaint alleges as follows: Bookout obtained a loan from a predecessor in interest to MUFG Union Bank, N.A. (MUFG Union Bank and its predecessors herein collectively “Bank”.) The loan was secured by Bookout’s residential and business real properties. Bookout defaulted on the loan. In June 2007, Bookout and the Bank entered into a forbearance agreement. Bookout alleges that the Bank immediately breached the agreement by using an improper amortization schedule to calculate monthly payments.

Bookout further alleges: In 2011, the Bank recorded improper notices of default against the properties that secured the loan. Also in 2011, the Bank improperly added $45,171.20 to the loan and falsified loan documents. The Bank did not have the right to add $57,676.17 for attorney fees to its proof of claim in Bookout’s bankruptcy. The Bank did not have the right to set the minimum bid price for the trustee’s sale of the Oceano property at $189,000. The Bank foreclosed on Bookout’s rock inventory without giving credit for the sale proceeds. Demurrer The Bank demurred to Bookout’s first amended complaint based on res judicata and statute of limitations. In support of its demurrer, the Bank requested that the trial court take judicial notice of documents filed in Bookout’s bankruptcies. The court granted the Bank’s motion for judicial notice. Bookout filed for bankruptcy under chapter 13 on September 15, 2011. The Bank filed a proof of claim arising out of the loan. On December 15, 2011, Bookout filed an objection to the proof of claim. The objection alleged the Bank had: (1) not properly amortized the loan and forbearance agreement; (2) changed the loan documents; (3) filed fraudulent notices of default; and (4) breached the forbearance agreement. The bankruptcy court dismissed the bankruptcy on December 20, 2011, due to Bookout’s failure to make payments under the plan. On December 27, 2011, Bookout again filed for bankruptcy under chapter 13. The Bank filed another proof of claim. The parties stipulated that the Bank could foreclose on Bookout’s commercial property and apply the proceeds of the sale to the outstanding loan balance. The Bank foreclosed and applied the proceeds to the loan balance. The Bank filed an amended proof of claim to reflect the reduced balance. Bookout again objected to the Bank’s proof of claim as follows: The Bank improperly reduced the minimum bid price at the foreclosure sale and improperly charged Bookout $57,676.17 for attorney fees and costs associated with his default on the loan.