Attili v. ETrade Bank CA2/6

Filed 6/19/13 Attili v. E*Trade Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAD ATTILI, 2d Civil No. B242534 (Super. Ct. No. 56-2010-00373496-CU- Plaintiff and Appellant, OR-SIM) (Ventura County) v.

E*TRADE BANK et al.,

Defendants and Respondents.

Appellant Jad Attili borrowed $1 million to purchase a home, secured by a deed of trust on the property. When Attili stopped making his monthly payments, the loan servicer, respondent OneWest Bank, FSB (OneWest), appointed a successor trustee to institute nonjudicial foreclosure proceedings. Attili failed to cure the default, and the trustee sold the property at a foreclosure sale. Attili's fourth amended complaint seeks damages against OneWest and respondent E*Trade Bank (E*Trade) for, inter alia, wrongful foreclosure, intentional infliction of emotional distress and promissory estoppel. The trial court dismissed Attili's claim for intentional infliction of emotional distress and granted respondents' motion for summary judgment as to the remaining claims. Attili contends triable issues of fact exist that preclude the grant of summary judgment. We disagree and affirm.

FACTS AND PROCEDURAL BACKGROUND In June 2006, MortgageIt, Inc. (MortgageIt) loaned Attili $1 million to purchase a $1,265,980 single-family residence located at 4244 Copperstone Avenue in Simi Valley (Property). To secure repayment of the loan, Attili signed a promissory note and deed of trust. The deed of trust gave the lender, its nominee and its successors and assigns the power to sell the Property upon default, and provided that the note "can be sold one or more times without prior notice" to the borrower. It also provided that a successor trustee could be appointed, and that "the successor trustee shall succeed to all the title, powers and duties conferred upon the [original] Trustee . . . ." MortgageIt reportedly sold the note to IndyMac Bank, FSB (IndyMac) which retained the servicing rights to the loan, but sold the note to UBS Real Estate Securities Inc. (UBS) under a master loan purchasing and servicing agreement. UBS subsequently assigned the note to E*Trade. After IndyMac failed, OneWest acquired the servicing rights to the loan. Attili disputes whether MortgageIt effectively transferred ownership of the note, but admits that OneWest serviced his loan between March 2009 and May 2010. Citing a decrease in income, Attili sought a loan modification from OneWest. Attili claims that he spoke with approximately 20 OneWest servicing representatives between June and September 2009, and that "one or two" of the representatives told him he would not be considered for a loan modification unless he first defaulted on his loan payments. Based on this "advice," Attili stopped making payments in June 2009. OneWest purportedly sent at least two letters to Attili advising him of the default and outlining options to avoid foreclosure. In October 2009, OneWest substituted Quality Loan Service Company (Quality) as trustee under the deed of trust. After Quality recorded a notice of default against the Property, OneWest advised Attili that he did not qualify for a loan modification due to its contractual obligations with the owner of the loan. Attili made no attempt to cure the default, and Quality recorded a notice of trustee's