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User Name: Charles Cox Date and Time: 03/30/2013 12:27 PM EDT Job Number: 2452912 Document(1) 1.Intenganv.BAC Home Loans Servicing LP, 2013 Cal. App. LEXIS 225Client/matter: Cox| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright ? 2013 LexisNexis. Charles Cox No Shepard’s Signal? As of: March 30, 2013 12:27 PM EDT Intenganv.BAC Home Loans Servicing LP Court of Appeal of California, First Appellate District, Division Five March 22, 2013, Opinion Filed A135782Reporter: 2013 Cal. App. LEXIS 225; 2013 WLARDEN M. INTENGAN, Plaintiff and Appel-lant, v. BAC HOME LOANS SERVICING LP et al., Defendants and Respondents.Notice: CERTIFIED FOR PARTIAL PUBLI-CATION*Prior History: [*1] Superior Court of San Ma-teo County, No. CIV 505111, RaymondSwope, Judge.Core Termsdemurrer, judicial notice, borrower, trust deed, cause of action, foreclosure, notice, thirdamended complaint, notice of default, beneficiary, sustain a demurrer, wrongfulforeclosure, due diligence, lender, default, modify, mortgage, trustee sale, telephone, foreclosure sale, trial court, recording of a notice, foreclose, purportedCase SummaryProcedural PosturePlaintiff borrower’s third amended complaint sought to preclude corporate defendants from foreclosing on her property. Plaintiff contended that defendants lacked authority to foreclose under the relevant deed of trust and notice of de-fault. The San Mateo County Superior Court,1180435California, entered a judgment of dismissal af-ter it sustained defendants’ demurrer to thethird amended complaint without leave to amend.OverviewPlaintiff alleged that defendants did not contact her or attempt to contact her with due dili-gence as required by Civ. Code, § 2923.5. The court held that judicial notice could not be taken of defendants’ compliance with § 2923.5.While judicial notice could be properly taken of the existence of a declaration of compli-ance, it could not be taken of the facts of com-pliance asserted in the declaration, at least where plaintiff alleged and argued that the declara-tion was false and the facts asserted in the dec-laration were reasonably subject to dispute.Even if the ?facts stated in the declaration could be the subject of judicial notice, the declara-tion contained only a conclusory assertion that defendant bank complied with the statute; no-where did it state when, how, or by whom the el-ements of due diligence were accomplished, or how the declarant knew if they were. The most these averments could do was create a fac-tual dispute as to whether defendants com-plied with the statute. Because plaintiff stated a cause of action for wrongful foreclosure based on the purported failure to comply with §2923.5before recordation of the notice of de-fault, it was error to sustain the demurrer.OutcomeThe judgment of dismissal was reversed. * Pursuant to California Rules of Court, rules 8.1105(b)and 8.1110, this opinion is certified for publication with the exception of parts II.A.2.-10., B. and C. Charles Cox Page 2 of 11 2013 Cal. App. LEXIS 225, *1 her property without offering to repay what heLexisNexis? HeadnotesCivil Procedure > ... > Responses > Defenses, Demur-rers & Objections > DemurrersCivil Procedure > Appeals > Standards of Re-view > De Novo ReviewEvidence > Judicial Notice > General OverviewHN1 In its de novo review of an order sustain-ing a demurrer, the appellate court assumesthe truth of all facts properly pleaded in the com-plaint or reasonably inferred from the plead-ing, but not mere contentions, deductions, or conclusions of law. The appellate court then de-termines if those facts are sufficient, as a mat-ter of law, to state a cause of action underany legal theory. In making this determination, the appellate court also considers facts ofwhich the trial court properly took judicial no-tice.Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > DemurrersEvidence > Judicial Notice > General OverviewHN2 A demurrer may be sustained where judi-cially noticeable facts render the pleading de-fective, and allegations in the pleading may be disregarded if they are contrary to facts judi-cially noticed.Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > DemurrersCivil Procedure > Appeals > Standards of Re-view > General OverviewHN3 In order to prevail on appeal from an or-der sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. The appellate court will affirm the ruling if there is any ground on which the demurrer could have been properly sustained.Real Property Law > Financing > Foreclo-sures > General OverviewHN4 As a general rule, a plaintiff may not chal-lenge the propriety of a foreclosure on his oror she borrowed against the property. A valid tender of performance must be of the full debt, in good faith, unconditional, and with the abil-ity to perform. Civ. Code, §§1486, 1493, 1494, 1495.Real Property Law > Financing > Foreclo-sures > General OverviewHN5 See Civ. Code, § 2923.6.Real Property Law > Financing > Foreclo-sures > General OverviewHN6 Civ. Code, § 2923.6, does not grant a right to a loan modification. To the contrary, it merely expresses the hope that lenders will of-fer loan modifications on certain terms and con-spicuously does not require lenders to take any action. In other words, there is no ?duty un-der § 2923.6to agree to a loan modification.Real Property Law > Financing > Foreclo-sures > General OverviewHN7 Civ. Code, § 2923.5, subd. (a)(1), pre-cludes a trustee or mortgage servicer from re-cording a notice of default until 30 days after the loan servicer has made initial contact with the borrower to assess the borrower’s financial situ-ation and explore options for avoiding foreclo-sure, or has satisfied the due diligence require-ments of the statute. Due diligence requires sending a letter by first class mail, makingthree attempts to contact the borrower by tele-phone, and sending a certified letter if no re-sponse is received within two weeks of the tele-phone attempts. § 2923.5, subd. (e).Evidence > Judicial Notice > General Overview Real Property Law > Financing > Foreclosures > Gen-eral OverviewHN8 Civ. Code, § 2923.5, requires not only that a declaration of compliance be attached to the notice of default, but that the bank actu-ally perform the underlying acts (i.e., contact-ing the borrower or attempting such contact with due diligence) that would constitute compli-ance. While judicial notice may be properly taken of the existence of the declaration, it may Charles Cox Page 3 of 11 2013 Cal. App. LEXIS 225, *1not be taken of the facts of compliance as-serted in the declaration, at least where the bor-rower has alleged and argued that the declara-tion is false and the facts asserted in the declaration are reasonably subject to dispute.Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > DemurrersHN9 A demurrer is not the appropriate proce-dure for determining the truth of disputed facts.Headnotes/SyllabusSummaryCALIFORNIA OFFICIAL REPORTS SUM-MARYPlaintiff’s third amended complaint sought to preclude corporate defendants from foreclosing on her property. Plaintiff contended that defen-dants lacked authority to foreclose under the rel-evant deed of trust and notice of default. Ac-cording to plaintiff, defendants did not contact her or attempt to contact her with due dili-gence as required by Civ. Code, § 2923.5. The trial court entered a judgment of dismissal af-ter it sustained defendants’ demurrer to thethird amended complaint without leave to amend. (Superior Court of San Mateo County, No. CIV505111, Raymond Swope, Judge.)The Court of Appeal reversed the judgment of dismissal. The court held that judicial notice could not be taken of defendants’ compliance with Civ. Code, § 2923.5. While judicial notice could be properly taken of the existence of a declaration of compliance, it could not be taken of the facts of compliance asserted in the dec-laration, at least where plaintiff alleged and ar-gued that the declaration was false and thefacts asserted in the declaration were reason-ably subject to dispute. Even if the “facts” stated in the declaration could be the subject of judi-cial notice, the declaration contained only aconclusory assertion that defendant bank com-plied with the statute; nowhere did it statewhen, how, or by whom the elements of due dili-gence were accomplished, or how the de-clarant knew if they were. The most these aver-ments could do was create a factual disputeas to whether defendants complied with the stat-ute. Because plaintiff stated a cause of action for wrongful foreclosure based on the pur-ported failure to comply with § 2923.5before recordation of the notice of default, the trial court erred in sustaining the demurrer. (Opin-ion by Needham, J., with Jones, P. J., and Brui-niers, J., concurring.)HeadnotesCALIFORNIA OFFICIAL REPORTS HEAD-NOTESCA(1) (1)Mortgages § 28 > Foreclosure > Offer to Repay Debt > Tender of Performance.As a general rule, a plaintiff may not challenge the propriety of a foreclosure on his or herproperty without offering to repay what he or she borrowed against the property. A valid ten-der of performance must be of the full debt, in good faith, unconditional, and with the abil-ity to perform ( Civ. Code, §§1486, 1493, 1494, 1495).CA(2) (2)Mortgages § 28 > Foreclosure > Loan Modification. Civ. Code, § 2923.6, does not grant a right to a loan modification. To the contrary, it merely expresses the hope that lenders will offer loan modifications on certain terms and conspicu-ously does not require lenders to take any ac-tion. In other words, there is no “duty” under § 2923.6to agree to a loan modification.CA(3) (3)Mortgages § 28 > Foreclosure > Notice of De-fault > Due Diligence. Civ. Code, § 2923.5, subd. (a)(1), precludes a trustee or mortgage servicer from recording a notice of default until 30 days after the loan servicer has made initial contact with the bor-rower to assess the borrower’s financial situa-tion and explore options for avoiding foreclo-sure, or has satisfied the due diligencerequirements of the statute. Due diligence re-quires sending a letter by first-class mail, mak-ing three attempts to contact the borrower by Charles Cox Page 4 of 11 2013 Cal. App. LEXIS 225, *1telephone, and sending a certified letter if no re-sponse is received within two weeks of the tele-phone attempts ( § 2923.5, subd. (e)).CA(4) (4)Mortgages § 28 > Foreclosure > Notice of De-fault > Declaration of Compliance > Judicial No-tice > Facts Reasonably Subject to Dispute. Civ. Code, § 2923.5, requires not only that a dec-laration of compliance be attached to the no-tice of default, but that the bank actually per-form the underlying acts (i.e., contacting the borrower or attempting such contact with due diligence) that would constitute compliance. Thus, in an action for wrongful foreclosure, ju-dicial notice could not be taken of defendants’ compliance with § 2923.5. While judicial no-tice could be properly taken of the existence of a declaration of compliance, it could not betaken of the facts of compliance asserted in the declaration, at least where the borrower al-leged and argued that the declaration was false and the facts asserted in the declaration were reasonably subject to dispute.[ Cal. Forms of Pleading and Practice (2013) ch. 555, Trust Deeds and Real Property Mort-gages, § 555.52.]Counsel: Arden M. Intengan, in pro. per., for Plaintiff and Appellant.Severson & Werson,Jan T. ChiltonandM. Eliza-beth Holtfor Defendants and Respondents.Judges: Opinion byNeedham, J., withJones, P. J., andBruiniers, J., concurring.Opinion by: Needham, J.OpinionNEEDHAM, J.—Arden M. Intengan (Inten-gan) appeals from a judgment of dismissal en-tered after the court sustained the demurrer to her third amended complaint without leaveto amend. Essentially, Intengan sought to pre-clude respondents from foreclosing on herproperty, contending they lack authority to do so under the relevant deed of trust and notice ofdefault. In this appeal, Intengan argues that the demurrer should not have been sustained be-cause she alleged facts sufficient to state a cause of action, including a claim based on respon-dents’ alleged failure to contact her or attempt with due diligence to contact her before re-cording the notice of default ( Civ. Code, § 2923.5). She also contends the court should have ruled on her motion to strike the demurrer.We will reverse the judgment. In the published portion of our opinion, we conclude that judi-cial notice could not be taken of respondents’[*2] compliance with Civil Code section 2923.5, and Intengan’s allegations that respon-dents did not comply with the statute were suf-ficient to state a cause of action for wrongful foreclosure. In the unpublished portion of the opinion, we conclude that Intengan failed to state any other cause of action and the court did not err in denying leave to amend.I. FACTS AND PROCEDURAL HISTORYOn June 26, 2006, Intengan borrowed $696,500 from Countrywide Bank, N.A. (Countrywide). The loan was secured by a deed of trust on In-tengan’s real property in Daly City. Underthe deed of trust, the beneficiary was Mortgage Electronic Registration Systems, Inc. (MERS), the trustee was respondent ReconTrust Com-pany, N.A. (ReconTrust), and BAC HomeLoans Servicing LP (BAC) serviced the note. BAC’s successor is respondentBank of America, N.A.On or about December 28, 2010, MERS as-signed its beneficial interest in Intengan’s deed of trust to “TheBank of New York Mellonfka TheBank of New York,as Successor Trustee to-JPMorgan ChaseBank, N.A., as Trustee forthe Holders of SAMI II Trust 2006-AR7, Mort-gage Pass-Through Certificates, Series 2006-AR7” (Bank of New York).On December 28, 2010, ReconTrust, as agent [*3] for the beneficiary under the deed of trust, recorded a notice of Intengan’s default on In-tengan’s loan; the notice of default and elec-tion to sell under deed of trust indicated that she was more than $46,000 in arrears. Charles Cox Page 5 of 11 2013 Cal. App. LEXIS 225, *3Purportedly accompanying the notice of default was a declaration by Samantha Jones, “MLO Loan Servicing Specialist of BAC Home Loans Servicing, LP,” in which she states under pen-alty of perjury thatBank of America“tried with due diligence to contact the borrower in accor-dance with California Civil Code Section2923.5.” The declaration does not provide any facts to support this conclusion, such as the specifics of any attempt to contact Intengan.A notice of trustee’s sale was recorded by Re-conTrust on April 5, 2011, setting a sale date of April 26, 2011. Intengan does not allege that the sale occurred, and the respondents’ brief represents that no sale took place and that Inten-gan has been in possession of the property for nearly two years without making payments on her loan.A.Original, First Amended, and Second Amended ComplaintsOn April 25, 2011—the day before the sched-uled foreclosure sale—Intengan filed a com-plaint against defendants, including BAC and ReconTrust, [*4] asserting causes of action for declaratory relief, injunctive relief, and an ac-counting. Before any defendant responded, In-tengan filed a first amended complaint andthen a second amended complaint.BAC and ReconTrust filed a demurrer to Inten-gan’s second amended complaint. The courtsustained their special demurrer to the first and second causes of action, with leave to amend in order to state a violation of Civil Code sec-tion 2923.5. The court also sustained theirgeneral demurrer to the third cause of action for an accounting, without leave to amend.B.Third Amended ComplaintIntengan filed her third amended complaint in January 2012 against BAC, ReconTrust, and oth-ers. This time, she purported to assert causes of action for wrongful foreclosure, fraud, inten-tional misrepresentation, breach of contract,breach of the implied covenant of good faith and fair dealing, slander of title, quiet title, declara-tory relief, violation of Business and Profes-sions Code section 17200, unjust enrichment,and injunctive relief seeking to enjoin the pend-ing foreclosure sale.In February 2012, respondents filed a demurrer to the third amended complaint. Although the demurrer is central to the issues [*5] on ap-peal, neither Intengan nor respondents in-clude the demurrer in the record. The record does contain, however, respondents’ request for judicial notice in support of their demurrer,by which they sought judicial notice of the deed of trust on Intengan’s property, the notice of de-fault, the assignment of the deed of trust to-Bank of New York,and the notice of trustee’s sale.In June 2012, Intengan filed an opposition and “motion to strike” the demurrer, “on thegrounds that Defendant[]Bank of America’sDemurrer does not state facts suffi-cient to constitute a demurrer, is uncertain, is ambiguous, is unintelligible, is irrelevant, is false, contains improper matters and/or is not drawn or filed in conformity with the laws of California.” She urged that the demurrer mis-stated facts and ignored the law, and therefore it should be stricken or denied. The purported motion was not accompanied by a notice of hear-ing.The court granted respondents’ request for judi-cial notice and sustained their demurrer to the third amended complaint without leave toamend. A judgment of dismissal was entered on June 15, 2012.This appeal followed. II. DISCUSSIONAs mentioned, Intengan argues that the court [*6] erred in sustaining the demurrer and fur-ther erred in failing to rule on her motion to strike the demurrer.A.DemurrerHN1 In our de novo review of an order sustain-ing a demurrer, we assume the truth of allfacts properly pleaded in the complaint or rea-sonably inferred from the pleading, but notmere contentions, deductions, or conclusions of Charles Cox Page 6 of 11 2013 Cal. App. LEXIS 225, *6law. ( Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986 [74 Cal. Rptr. 3d 47].) We then determine if those facts are suffi-cient, as a matter of law, to state a cause of ac-tion under any legal theory. ( Aguilera v. Hei-man (2009) 174 Cal.App.4th 590, 595 [95 Cal. Rptr. 3d 18].)In making this determination, we also consider facts of which the trial court properly took ju-dicial notice. (E.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165, fn.12 [41 Cal. Rptr. 3d 299, 131 P.3d 383].)HN2 A demurrer may be sustained where judicially no-ticeable facts render the pleading defective( Evans v. City of Berkeley (2006) 38 Cal.4th 1,6 [40 Cal. Rptr. 3d 205, 129 P.3d 394]), and al-legations in the pleading may be disregarded if they are contrary to facts judicially noticed ( Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 [102 Cal. Rptr. 3d 72](Hoffman); see Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265[129 Cal. Rptr. 3d 467](Fontenot) [in sustaining[*7] demurrer, court properly took judicial no-tice of recorded documents that clarified and to some extent contradicted plaintiff’s allega-tions]).HN3 In order to prevail on appeal from an or-der sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. ( Cantu v. Resolution Trust Corp. (1992) 4Cal.App.4th 857, 879-880 [6 Cal. Rptr. 2d 151].) We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained. ( Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 946 [112 Cal. Rptr. 2d 329].)1.Wrongful Foreclosure (First Cause of Action)The first purported cause of action in Inten-gan’s third amended complaint is for “wrong-ful foreclosure.” Intengan alleges there was “an unauthorized Trustee, document irregularities, improper signatories, and [a] defective Notice ofDefault”; she further alleges that “due to the chain of assignments, it is now unknown and doubtful who is the current lender/beneficiary/ assignee with legal authority and standing re-garding the mortgage on [the] [*8] subject prop-erty.” Intengan also claims that BAC andReconTrust failed to comply with a number of Civil Code sections regulating nonjudicialforeclosures, including the requirement of con-tacting the borrower, or attempting to do so with due diligence, under Civil Code section 2923.5.a.Failure to tenderHN4 CA(1) (1)As a general rule, a plaintiff may not challenge the propriety of a foreclo-sure on his or her property without offering to re-pay what he or she borrowed against the prop-erty. ( Karlsen v. American Sav. & LoanAssn. (1971) 15 Cal.App.3d 112, 117 [92 Cal-.Rptr. 851][judgment on the pleadings properly granted where plaintiff attempted to set aside trustee’s sale for lack of adequate notice, be-cause “[a] valid and viable tender of pay-ment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust”]; see United States Cold Storage v.Great Western Savings & Loan Assn. (1985) 165 Cal.App.3d 1214, 1222-1223 [212 Cal. Rptr. 232][“the law is long-established that atrust-oror his successor must tender the obligation in full as a prerequisite to [a] challenge of theforeclosure sale”]; FPCI RE-HAB 01 v. E & G In-vestments, Ltd. (1989) 207 Cal.App.3d 1018,1021-1022 [255 Cal. Rptr. 157][tender rule is based on “the [*9] equitable maxim that a court of equity will not order a useless act per-formed … [?] … if plaintiffs could not have re-deemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs”].)Intengan’s third amended complaint alleges her willingness “to tender the appropriate and rea-sonable mortgage payments.” That allegation, however, is plainly insufficient. A valid ten-der of performance must be of the full debt, in good faith, unconditional, and with the abil-ity to perform. ( Civ. Code, §§1486, 1493, 1494, 1495.) Charles Cox Page 7 of 11 2013 Cal. App. LEXIS 225, *9Intengan’s third amended complaint also as-serts that “tender is not required inasmuch as there is [a] void foreclosure, not a voidable one.” (See Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 877-878 [97 Cal. Rptr. 2d 255].) However, Intengan does not allege that she was fraudulently induced into the loan;nor does she otherwise attack the validity of the debt. Nor do her allegations indicate a de-fect in the foreclosure procedure that would ren-der a resulting sale voidon its face, particu-larly when considered in light of the documents that were judicially noticed. On the otherhand, as we shall discusspost, Intengan has[*10] alleged a defect in the foreclosure pro-cedure—the failure to comply with CivilCode section 2923.5—which, if true, would ren-der the foreclosure either void or voidable.Whether or not this would remove the need to al-lege tender is an issue we need not address,since an allegation of tender is unnecessary for another reason.According to the allegations of the third amended complaint—as well as representations in the respondents’ brief—no foreclosure sale had occurred as of the time of the ruling on the demurrer. While the tender requirement may apply to causes of action toset asidea foreclo-sure sale, a number of California and federal courts have held or suggested that it does not apply to actions seeking toenjoina foreclosure sale—at least where the lenders had alleg-edly not complied with a condition precedent to foreclosure. (See, e.g., Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1280-1281 [150 Cal. Rptr. 3d 673][fail-ure to allege tender of full amount owed did not bar declaratory relief or injunctive relief based on wrongful foreclosure, where lenders had not yet foreclosed and borrowers alleged that lenders had not complied with servicing regulations that were a [*11] condition prec-edent to foreclosure]; Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 225 [110 Cal. Rptr. 3d 201](Mabry) [borrower not re-quired to tender full amount of indebtedness in seeking to enjoin foreclosure sale based on al-leged failure to comply with Civ. Code, § 2923.5]; Barrionuevo v. Chase Bank, N.A . (N.D-.Cal. 2012) 885 F.Supp.2d 964, 969-970 &fn. 4(Barrionuevo) [no tender requirement where foreclosure sale had not yet occurred, in case where noncompliance with Civ. Code, § 2923.5was alleged].)b.Wrongful foreclosure theoriesIntengan contends that the foreclosing benefi-ciary under the deed of trust,Bank of New York,has not been shown to have standing to foreclose. She alleges: “Defendants made trans-fers, assignments of the subject loan and that due to the chain of assignments, it is now un-known and doubtful who is the current lender/ beneficiary/assignee with legal authority and standing regarding the mortgage on the sub-ject property.”Intengan fails to allege wrongful foreclosure on this ground. The records of which the court took judicial notice, without Intengan’s objec-tion, identify the foreclosing beneficiary to be theBank of New York. [*12] Specifically, the recorded deed of trust names MERS as the origi-nal beneficiary, the recorded assignment ofthe deed of trust assigns all beneficial interest under the deed of trust from MERS toBank of New Yorkas the new beneficiary, and the no-tice of trustee sale was dated and recorded after-Bank of New Yorkbecame the beneficiary.(See Fontenot, supra , 198 Cal.App.4th at pp. 264-265[court may take judicial notice of the fact of the existence and legal effect of legally operative documents, such as the identity of the beneficiary designated in the deed of trust, where not subject to reasonable dis-pute]; Scott v.JPMorgan ChaseBank, N.A. (Mar. 18, 2013, A132741) 214 Cal.App.4th ___ [2013 Cal.App.Lexis 211].) While Intengan’s plead-ing includes the unsupported conclusion that there was no assignment of the deed of trust in favor of “TheBank of New York Mellonfka TheBank of New Yorkas Trustee,” the recorded assignment of which the court took judicial no-tice shows there was, and Intengan neither al-leges nor argues facts from which the assign-ment might be inferred to be invalid.(See Fontenot, supra , at pp. 264-265.) Under these circumstances, the judicially noticed facts contradict the conclusory allegations [*13] of the third amended complaint, and those allega-Charles Cox Page 8 of 11 2013 Cal. App. LEXIS 225, *13tions may be disregarded. ( Id. at p. 265; Hoff-man, supra , 179 Cal.App.4th at p. 400.)1Similarly, Intengan alleges that respondents could not provide a valid “chain of assign-ments” from previous [*14] lenders includingCountrywide. From the outset, however, MERS (not Countrywide) was the beneficiary under the deed of trust, and the assignment of the deed of trust shows that MERS assigned its interest toBank of New York.(See Fontenot, supra , 198 Cal.App.4th at pp. 264-265.)Intengan also alleges the conclusion that the no-tice of trustee’s sale arose from an “unauthor-ized Trustee, document irregularities, [and] im-proper signatories.” Although she alleges that the substitution of ReconTrust as trustee was not recorded until February 17, 2011, the records of which the court took judicial notice—includ-ing the original deed of trust—show that Re-conTrust was the trustee from the beginning and throughout the date of the notice of defaultand notice of trustee sale. (See Fontenot, supra , 198 Cal.App.4th at pp. 264-265.) Further-more, both beneficiaries and trustees—and their agents—may record notices of default. ( Civ.Code, § 2924, subd. (a)(1).) Thus, ReconTrust was authorized to record the notice of de-fault as the trustee, and it was also authorized to record the notice of default as the agent of the beneficiary. Intengan’s allegations fail to state facts from which it may be inferred [*15] that the notice of default or the notice of trustee’s sale was invalid on this ground.Intengan further alleges that respondents did not comply with the requirements of Civil Code sections 2823.6, 2923.5, or 2923.6, before pro-ceeding with the foreclosure. There is no Civil Code section 2823.6. Her allegations as to- Civil Code section 2923.6are unavailing, but her allegation as to Civil Code section 2923.5suf-fice to state a cause of action.CA(2) (2)In January 2012, when Intengan’s third amended complaint was filed, and June 2012, when it was dismissed, Civil Code sec-tion 2923.6provided:HN5 “It is the intent of the Legislature that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modi-fication or workout plan if such a modifica-tion or plan is consistent with its contractual or other authority.” ( Civ. Code, § 2923.6, former subd. (b).)2Intengan alleged that, pursuant to Civil Code section “2823.6”—which we take to mean “ 2923.6”—“Defendants are now con-tractually bound to implement the loan modi-fication as provided therein.” ButHN6 Civil Code section 2923.6does not grant a right to a loan modification. To the contrary, it “merely expresses the hope that lenders will offerloan [*16] modifications on certain terms” and “conspicuously does not require lenders totake any action.” ( Mabry, supra , 185 Cal.App.4th at p. 222 & fn. 9, italics omitted.) In other words, “[t]hereis no ‘duty’ under- Civil Code section 2923.6to agree to a loan modification.” ( Hamilton v. Greenwich Inves-tors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1617 [126 Cal. Rptr. 3d 174].)HN7 CA(3) (3) Civil Code section 2923.5pre-cludes a trustee (like respondent ReconTrust) or mortgage servicer (such as BAC/respondent-Bank of America) from recording a notice of de-fault until 30 days after the loan servicer has made initial contact with the borrower to as-sess the borrower’s financial situation and ex-plore options for avoiding foreclosure, or has satisfied the due diligence requirements of the 1 Accord, Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [127 Cal. Rptr. 3d 362] ( Herrera ). In Herrera, the court held that judicial notice could not be taken of the fact that a foreclosing bank was the beneficiary under a deed of trust where the judicial notice was to be based on a disputed hearsay statement in asubstitution of trusteeform that the bank was the beneficiary (as opposed to the original deed of trust or an assignment that actually made the bank the beneficiary) and a dis-puted hearsay statement in an assignment of the deed of trust that thepredecessorbank was successor to the original beneficiary (which was a hearsay statement that could not establish a chain of title without independent proof). Here, by contrast, the legally op-erative effect of the deed of trust is that MERS was the beneficiary, and the legally operative effect of the assignment from MERS toBank of New Yorkis thatBank of New Yorkbecame the new beneficiary.2Stats. 2012, ch. 86, § 7andStats. 2012, ch. 87, § 7, effective January 1, 2013, amended Civil Code section 2923.6, subdivision (b)by substituting “mortgage servicer” for “mortgagee, beneficiary, or authorized agent.” Charles Cox Page 9 of 11 2013 Cal. App. LEXIS 225, *16statute. ( Civ. Code, § 2923.5, subd. (a)(1).) Due diligence requires sending a letter by first-class mail, making three attempts to contact the borrower by telephone, and sending a certi-fied letter if no response is received within two weeks of the telephone attempts. [*17] ( Civ. Code, § 2923.5, subd. (e).)Intengan expressly alleged in her third amended complaint that respondents “did not complywith such contact and due diligence re-quirements pursuant to Civil Code section 2923.5.” (Italics added.) In support of their de-murrer, respondents sought judicial notice of the notice of default, including the attached dec-laration of Samantha Jones, which averred that-Bank of America“tried with due diligence to contact [Intengan] in accordance with Califor-nia Civil Code Section 2923.5.” But in her op-position to the demurrer, Intengan argued that she had never spoken with Jones in person or over the telephone, heard any recording from Jones “over the telephone or any other method recorded by ‘Ms. Jones’, Defendants-Bank of Americaor Mr. Julian,” or “communi-cated with ‘Ms. Jones’ by any method of com-munication whatsoever nor received any communication whatsoever from ‘Ms. Jones’ other than by the ‘Ms. Jones’ Declaration Defen-dantsBank of Americaand Mr. Julian have pro-vided.”Construing the allegations of the third amended complaint broadly (as we must on de-murrer), we conclude that Intengan stated a cause of action for wrongful foreclosure based on respondents’ [*18] alleged noncompli-ance with Civil Code section 2923.5. Intengan al-leged that defendants did not contact her or at-tempt to contact her with due diligence as required by the statute. Although respondents sought judicial notice of Jones’s declaration re-garding compliance with the statute, Intengan disputed the truthfulness of Jones’s declaration by denying that she was ever contacted or re-ceived any telephone message. She also argued at the demurrer hearing that it was inappropri-ate to turn the hearing into an evidentiary hear-ing—in other words, that a demurrer may not be sustained by resolving a conflict in the evi-dence. And in this appeal Intengan arguesthat, while judicial notice may be taken of the existence of a document such as a declaration, accepting the truth of itscontentspresents an en-tirely different matter.CA(4) (4)Intengan is correct.HN8 Civil Code section 2923.5requires not only that a declara-tion of compliance be attached to the noticeof default, but that the bank actually perform the underlying acts (i.e., contacting the borrower or attempting such contact with due diligence) that would constitute compliance. While judi-cial notice could be properly taken of theexisten-ceof Jones’s [*19] declaration, it could not be taken of the facts of compliance assertedinthe declaration, at least where, as here, Intengan has alleged and argued that the declaration is false and the facts asserted in the declaration are reasonably subject to dispute. (See, e.g., Joslinv. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-376 [228 Cal. Rptr. 878](Joslin)[facts disclosed in a deposition and not dis-puted could be considered in ruling on a demur-rer, but facts disclosed in the deposition that were disputed could not be, since “ ‘judicial no-tice of matters upon demurrer will be disposi-tive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.’ ”].) In-deed, respondents only sought judicial notice of the documents attached to its request, not the underlying fact of its attempt to contact Inten-gan.Taking judicial notice that the bank actually per-formed certain acts that might constitute com-pliance with its statutory obligations, basedsolely on a declaration that avers compliance in a conclusory manner, would of course be vastly different than merely taking judicial no-tice that the declaration was signed and at-tached to the notice [*20] of default (or, as dis-cussedante, from taking judicial notice of the legal effect of a legally operative deed of trust that names its beneficiary). At least in thiscase, what the bank actually did to comply with the statute is reasonably subject to disputeand cannot be judicially noticed, even though the existence of the declaration (and the legal ef-fect of a deed of trust) is not reasonably sub-ject to dispute and can be judicially noticed. Charles Cox Page 10 of 11 2013 Cal. App. LEXIS 225, *20(See Skov v. U.S. Bank National Assn. (2012) 207 Cal.App.4th 690, 696 [143 Cal. Rptr. 3d694](Skov) [where bank sought judicial notice of a notice of default declaration stating compli-ance with Civ. Code, § 2923.5, whether the bank “complied with section 2923.5is the type offact that is reasonably subject to dispute, and thus, not a proper subject of judicial notice”].)Furthermore, even if the “facts” stated in Jones’s declarationcouldbe the subject of judi-cial notice, the declaration contains only a con-clusory assertion thatBank of Americacom-plied with the statute: nowhere does it state when, how, or by whom the elements of due dili-gence were accomplished, or how the de-clarant knew if they were.3More importantly, the most these averments could do is create a factual dispute [*21] as to whether respondents complied with the statute. (See Mabry, supra , 185 Cal.App.4th at pp. 235-236[competing ac-counts as to possibility of compliance with- Civ. Code, § 2923.5created conflict in the evi-dence].)HN9 A demurrer is “ ‘simply not the appropriate procedure for determining the truth of disputed facts.’ ” ( Joslin, supra , 184 Cal.App.3d at p. 374; seeSkov, supra, 207 Cal.App.4th at pp. 696-697[assuming the truth of the plaintiff’s allegations, a disputed issue of compliance with Civ. Code, § 2923.5cannot be resolved at the demurrer stage]; see also Barri-onuevo, supra , 885 F.Supp.2d 964, 976-977[borrowers’ allegation that bank did not con-tact them before filing the notice of default was sufficient to state a violation of Civ. Code, § 2923.5, despite judicial notice taken of dec-laration in notice of default that asserted statu-tory compliance]; Argueta v. J.P. Morgan Chase (E.D.Cal. 2011) 787 F.Supp.2d 1099, 1107(Argueta) [despite judicial notice of notice of default including declaration of compli-ance with Civ. Code, § 2923.5, plaintiff’s allega-tions were sufficient to preclude dismissalwhere plaintiffs alleged that they did not re-ceive phone calls, [*22] phone messages, or let-ters before the notice of default was re-corded].)On this basis, Intengan stated a cause of action for wrongful foreclosure based on the pur-ported failure to comply with Civil Code sec-tion 2923.5before recordation of the notice of default. For this reason, it was error to sustain the demurrer.42.-10.* [*23]11.Intengan’s Other ArgumentsIntengan contends that the court’s ruling on the demurrer “is partial and therefore inconsistent with California statutory and case law,”“amounts to a constructive tax” in violation of her constitutional rights, violates her constitu-tional right to be free from illegal takings, re-sulted from a misapplication of law and igno-rance of the facts, and violates her“Constitutional Right to separation of powers.” She contends that “[n]oevidence exists in the record that Judge Swope had any probable cause to institute any forfeiture action against Appel-lant Intengan [*24] by the Wrongful Demur-rer Ruling resulting in the loss of Appellant In-tengan’s lawsuit.” She asserts that the“refusals” ofBank of Americaand the trial court “resemble an Orwellian conundrum.” She “fur-ther requests that this Court piece together Ap-pellant Intengan’s Constitutional Right thatJudge Swope and RespondentsBank of Ameri-cashattered Humpty Dumpty-like due totheir acts of partiality, misapplication of law, ig-norance of facts and unconstitutionality andby their refusals to contemplate the gravity of their decisionmaking before proceeding con-trary to law.” Intengan additionally refers us to Lewis Carroll’s Alice’s Adventures in Won-3 This detail might not be necessary for thedeclarationto meet the requirements of the statute. ( Mabry, supra , 185 Cal.App.4th at p. 235.) But at issue here is not the sufficiency of the declaration’s form, but whether it can be said, as a matter of law, that re-spondents complied with the requirement that the loan servicer contacted the borrower or made the necessary efforts to do so.4We note, however, the well-established rule that there is no remedy for violation of Civil Code section 2923.5except a delay of the foreclosure sale pending compliance with the statute. ( Mabry, supra , 185 Cal.App.4th at p. 223; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 525-526 [134 Cal. Rptr. 3d 604]; Argueta, supra , 787 F.Supp.2d at p. 1107.) * See footnote,ante, page___. Charles Cox Page 11 of 11 2013 Cal. App. LEXIS 225, *24derland (1865). And she urges us to do justice and mercy in this case, providing numerous quo-tations from the Bible.We have fully considered all of Intengan’s argu-ments in arriving at our disposition of her ap-peal. We conclude the trial court erred in sus-taining the demurrer to the third amendedcomplaint, only in that Intengan adequately al-leged a violation of Civil Code section2923.5, which might be pursued under her theory of wrongful foreclosure. Accordingly,the judgment of dismissal must be reversed, and the order sustaining the demurrer to the[*25]third amended complaint must be re-versed solely as to her purported cause of ac-tion for wrongful foreclosure, based exclu-sively on the alleged violation of Civil Code section 2923.5, potentially providing relief only in the form of a postponement of the foreclo-sure sale.B., C.*III. DISPOSITIONThe judgment of dismissal is reversed. The or-der sustaining the demurrer is reversed,solely as to a cause of action for wrongful fore-closure based on allegations that respondents did not comply with Civil Code section 2923.5. Appellant shall recover her costs on appeal.Jones, P. J., andBruiniers, J., concurred. * See footnote,ante, page___. Charles Cox ................
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