Brothers v. Bank of America CA6

Filed 6/11/24 Brothers v. Bank of America CA6 Opinion after vacating prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

JEFF BROTHERS, H050684 (Monterey County Plaintiff and Appellant, Super. Ct. No. 21CV001730)

v.

BANK OF AMERICA, N.A., et al.,

Defendants and Respondents.

After plaintiff Jeff Brothers defaulted on a mortgage loan, a notice of default was recorded. Alleging that the notice of default failed to account for one of his monthly payments and thus denied him an accurate reinstatement quote, Brothers sued the beneficiary under the deed of trust and the servicer, pleading violations of Civil Code sections 2924, subdivision (a)(1)(C) and 2924c.1 He did not allege that he would or could reinstate the loan, if provided an accurate quote. The trial court ultimately sustained defendants’ demurrer without leave to amend.2 We affirm. I. BACKGROUND According to his second amended complaint, Brothers owns real property in Carmel Valley subject to a mortgage loan. The loan, in the amount of $1.575 million,

1 Undesignated statutory references are to the Civil Code. 2 Defendants are Bank of America, N.A. and the Bank of New York Mellon fka The Bank of New York. The two defendants jointly demurred.

was issued in 2006. Brothers made all payments required on the loan through and including December 2018, at which point Brothers “fell on hard times and was no longer able to make his payments.” A notice of default was recorded in September 2019. The notice of default incorrectly reflected that Brothers had failed to make the December 2018 payment. The total default, as of August 29, 2019, was stated as $93,285.84. Defendants have refused Brothers’s informal requests to correct the recorded document.3 Brothers first alleged three causes of action: (1) violation of section 2924c; (2) violation of section 2924, subdivision (a)(1)(C); and (3) violation of the unfair competition law (UCL). He amended the complaint once with a demurrer pending and a second time after the trial court sustained a demurrer with leave to amend only the first two causes of action. In his second amended complaint, Brothers alleged that defendants violated sections 2924, subdivision (a)(1)(C) and 2924c because they caused a false notice of default to be reported, harming him by rendering him unable to obtain “an accurate reinstatement quote . . . that accounts for the December 1, 2018 payment.” Brothers prayed for various forms of relief, including permanent injunctive relief “preventing [d]efendants . . . from collecting on the subject loan and from causing the [p]roperty to be sold,” “damages, disgorgement,” and “exemplary damages.” The trial court sustained defendants’ demurrer to the second amended complaint without leave to amend and entered a written dismissal. Brothers timely appealed. II. DISCUSSION “In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) 3 Although there are two defendants named in the second amended complaint, the complaint frequently ambiguously refers to “Defendant” in the singular. For present purposes we presume that the plural was intended.