Raiano v. Ocwen Loan Servicing, LLC CA2/3

California Court of Appeal May 17, 2022 No. B311671Unpublished

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Holding. The court held that a plaintiff alleging a violation of Civil Code section 2924b for failure to serve notice of default and trustee's sale must allege resulting prejudice, and that the trial court did not abuse its discretion in denying further leave to amend after the plaintiff failed to cure this defect over multiple iterations of the complaint.

Issues

Whether a cause of action for violation of Civil Code section 2924b requires an allegation of prejudice resulting from the lack of notice.
Whether the trial court abused its discretion in sustaining a demurrer without leave to amend after the plaintiff failed to cure pleading defects across multiple amended complaints.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Courts will not elevate form over substance when it is obvious that the plaintiff had actual notice of the default and the trustee’s sale.”

“Raiano’s general allegation that he would have paid the arrears had he been served with the notices is belied by his actual knowledge of the pending foreclosure”

Filed 5/17/22 Raiano v. Ocwen Loan Servicing, LLC CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

HUMBERTO RAIANO, B311671

Plaintiff and Appellant, (Los Angeles County Super. Ct. v. No. 19VECV00832)

OCWEN LOAN SERVICING, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Huey P. Cotton, Jr., Judge. Affirmed. Tamer Law and Steven Michael Tamer for Plaintiff and Appellant. Houser, Robert W. Norman, Jr., and Neil J. Cooper for Defendant and Respondent. ——————————

Humberto Raiano appeals from a judgment after the trial court sustained Ocwen Loan Servicing, LLC’s (Ocwen) demurrer to his third amended complaint without leave to amend. We affirm. BACKGROUND Because this appeal comes to us after the trial court sustained a demurrer without leave to amend, we recite the facts as alleged in the third amended complaint and those matters that have been judicially noticed. In 2006, Rosa Portillo purchased a house in Los Angeles (the property) from Raiano. Portillo obtained a loan secured by a first- position deed of trust against the property. Ocwen is the loan servicer and The Mortgage Law Firm, PLC (MLF) is the trustee for the purchase money loan. Portillo subsequently borrowed money from Raiano, and the loan was secured by a junior deed of trust on the property. In 2015, Portillo defaulted on the purchase money loan and the loan from Raiano. Raiano foreclosed on and took possession of the property. In March 2016, Ocwen recorded a notice of default and, in November 2017, MLF recorded a notice of trustee’s sale on behalf of the first lienholder. In December 2017, Raiano sued Ocwen and MLF, alleging a violation of Civil Code1 section 2924b, subdivision (c)(2)(A) and(B) on the ground that they failed to serve him with the notice of default and notice of trustee’s sale. Although it is not clear from the record, Ocwen represented, and Raiano did not dispute, that the parties settled the prior lawsuit after Ocwen

Raiano v. Ocwen Loan Servicing, LLC CA2/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

HUMBERTO RAIANO, B311671

OCWEN LOAN SERVICING, LLC,

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