Lemke v. Wells Fargo Bank CA3

Filed 3/22/21 Lemke v. Wells Fargo Bank CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) ----

JOHN F. LEMKE, C079415

Plaintiff and Appellant, (Super. Ct. No. 13CV39159)

v.

WELLS FARGO BANK, N.A. et al.,

Defendants and Respondents.

In 2006, plaintiff John F. Lemke borrowed $455,000 from defendant LoanCity, secured by a deed of trust on Lemke’s residence located in Copperopolis, Calaveras County, California. A little over six years later, the property was sold in a nonjudicial foreclosure to US Bank National Association (US Bank), as trustee for the entity who was then the note holder—Credit Suisse First Boston Mortgage Securities Corp., CSMC Mortgage-Backed Pass-Through Certificates, Series 2006-7 (Credit Suisse). US Bank, as trustee for Credit Suisse, later sold the property to Henry and Julie Martinez.

1

Plaintiff brought this action alleging causes of action for cancellation of instruments, wrongful foreclosure, quasi-contract, accounting, slander of title, and violation of Business and Professions Code section 17200 et seq. The first amended complaint (complaint) does not dispute that plaintiff failed to pay the amounts owed, or that he never tendered the amount of the debt. Instead, plaintiff alleged he was not required to tender the amount owed because the note and deed of trust, as well as every document recorded in the foreclosure action, were void. The theory of plaintiff’s case is that because the money he borrowed actually came from investors, LoanCity was not really the lender, thus the note and deed of trust did not represent the “true” lenders. For this and other reasons, every other instrument was void. The trial court sustained defendants’ demurrer without leave to amend on the grounds the complaint failed to state a cause of action and was uncertain. On appeal, plaintiff makes no argument that the trial court erred in sustaining the demurrer. Plaintiff’s only arguments are that the trial court abused its discretion in denying leave to amend the complaint and in expunging the lis pendens. Because plaintiff’s brief does not set forth the elements of his causes of action and demonstrate how he can amend his pleading to cure the deficiencies in the complaint, plaintiff has not satisfied his burden on appeal. Additionally, the order expunging the lis pendens is not appealable. We shall therefore affirm the judgment of the trial court. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff’s first amended complaint omits allegations describing the loan transaction that is the source of this action. We can ascertain from the exhibits to the complaint that in 2006 plaintiff borrowed the sum of $455,000 from LoanCity, secured by a deed of trust on a single family home located in Calaveras County. The original trustee was Sterling Title Company, and MERS (Mortgage Electronic Registration Systems, Inc.) was a nominee for the lender and the beneficiary under the deed of trust.