Intengan v. BAC Home Loans Servicing LP
214 Cal. App. 4th 1047
Cal. Ct. App.2013Background
- Intengan loaned $696,500 to her; deed of trust named MERS as beneficiary, ReconTrust as trustee, BAC serviced the loan; Bank of America N.A. is successor to BAC.
- Notice of default recorded December 28, 2010 after a declaration claiming compliance with Civ. Code § 2923.5 was attached to the notice of default.
- A notice of trustee’s sale was recorded April 5, 2011, but no sale occurred and Intengan retained possession.
- Intengan filed multiple complaints; demurrer to third amended complaint was sustained without leave to amend; she challenged the foreclosure and asserted § 2923.5 noncompliance among other theories.
- The court reversed the dismissal for the wrongful foreclosure claim under § 2923.5 but affirmed dismissal of other claims; the reversal was limited to the § 2923.5-based wrongful-foreclosure theory.
- Judgment of dismissal reversed; demurrer reversed solely as to the § 2923.5 wrongful-foreclosure claim; costs awarded to Intengan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2923.5 noncompliance supports a wrongful-foreclosure claim | Intengan alleges respondents did not contact her as § 2923.5 requires | Respondents contend the declaration in the notice proves compliance and that tender is not required at this stage | Demurrer error; § 2923.5 noncompliance may state a claim for wrongful foreclosure |
| Whether judicial notice could establish § 2923.5 compliance | Judicial notice should not be used to prove compliance; disputes exist about actual contact | Judicial notice could confirm existence of documents attesting compliance | Judicial notice cannot prove compliance facts; disputes about contact render such notice improper for the demurrer |
| Whether tender was required to state a § 2923.5 wrongful-foreclosure claim | Tender not required for a wrongful-foreclosure claim seeking to enjoin foreclosure | Tender generally required to challenge foreclosure sales | Tender not required to plead § 2923.5 wrongful-foreclosure; claim viable without full tender at this stage |
| Whether the chain of assignments and standing to foreclose were properly alleged | Chain of assignments obscure; BoNY Mellon may not be rightful beneficiary | Record shows BoNY Mellon as beneficiary per assignment from MERS; no defect | Records contradict plaintiff’s claims; no valid basis to challenge standing based on assignments |
| Whether § 2923.6 created a right to loan modification or duty to modify | Defendants are contractually bound to implement a loan modification under § 2923.6 | § 2923.6 expresses hope for modifications but imposes no duty | § 2923.6 does not create an enforceable modification duty; focus remains on § 2923.5 |
Key Cases Cited
- Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (Cal. App. 2011) (court may take judicial notice of operative documents; effect of beneficiary/assignment matters)
- Mabry v. Superior Court, 185 Cal.App.4th 208 (Cal. App. 2010) (tender rule; §2923.5 compliance may delay foreclosure rather than void it)
- Joslin v. H.A.S. Ins. Brokerage, 184 Cal.App.3d 369 (Cal. App. 1986) (depositional evidence disputes on demurrer; cannot resolve disputed facts)
- Skov v. U.S. Bank National Assn., 207 Cal.App.4th 690 (Cal. App. 2012) (judicial notice limits; facts subject to dispute cannot be noticed as true)
- Herrera v. Deutsche Bank National Trust Co., 196 Cal.App.4th 1366 (Cal. App. 2011) (judicial notice of beneficiary in deed of trust; distinction between operative facts and notices)