DiPietro v. Wachovia Mortgage CA1/5

Filed 4/8/13 DiPietro v. Wachovia Mortgage CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE

JAMES DiPIETRO, Plaintiff and Appellant, A134181 v. WACHOVIA MORTGAGE, FSB, (Napa County Super. Ct. No. 26-36809) Defendant and Respondent.

The trial court sustained, without leave to amend, a demurrer filed by defendant Wachovia Mortgage, FSB (respondent), to a complaint filed by plaintiff James DiPietro (appellant). We affirm. BACKGROUND1 Appellant is the owner of real property located in Napa County. In April 2006, appellant received in the mail an offer from defendants Svetlana Conway and Dirk Kuivenhoven to refinance the loan on the house. At that time, Conway and Kuivenhoven were acting on behalf of defendant Transamerican Financial Corporation—a California corporation performing real estate services by and through a corporate officer licensed as a real estate broker.2 Conway presented a proposed loan to appellant that appellant found acceptable.

1 Because this matter was resolved at the pleading stage of the litigation by way of demurrer, the following summary of the facts is derived from the allegations set forth in appellant‟s operative complaint. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 2 Conway, Kuivenhoven, and Transamerican are not parties to this appeal. Neither is another defendant, Chicago Title Company. 1

Appellant signed certain loan documents at his home with Conway, Kuivenhoven, and a notary present. During the signing, appellant noticed the loan terms were different than those he had agreed upon. Appellant refused to sign any more documents and rejected the loan. Conway and/or Kuivenhoven forged appellant‟s signature on the remaining loan documents and completed the loan transaction. The lender was World Savings & Loan, FSB, succeeded by respondent.3 Appellant filed second and third amended complaints. The third amended complaint alleged causes of action for cancellation of instrument, quiet title, fraud, negligent misrepresentation, constructive fraud, tortuous breach of a licensee‟s duties, economic duress, intentional infliction of emotional distress, financial elder abuse, breach of contract, negligent breach of contract, and breach of fiduciary duty. In June 2010, appellant filed a petition seeking relief from creditors under Chapter 13 of the Bankruptcy Code and a notice of automatic stay in the civil case. Appellant sought to remove the action to bankruptcy court and, in June 2011, the bankruptcy court issued an order to remove and retain jurisdiction over appellant‟s cancellation of instrument and quiet title causes of action, as well as a cross-complaint filed by respondent. The court severed and remanded all the other causes of action to the state court. Following a court trial, the bankruptcy court entered judgment in favor of respondent. Prior to entry of the bankruptcy court‟s judgment, appellant had filed a fourth amended and operative complaint (Complaint) in the present action. Following entry of the bankruptcy court‟s judgment, respondent demurred to the causes of action against it in the Complaint, including cancellation of instrument, quiet title, fraud, negligent misrepresentation, constructive fraud, and financial elder abuse. The trial court sustained the demurrer to those causes of action without leave to amend and entered a judgment dismissing respondent from the action. This appeal followed.