Skov v. U.S. Bank National Ass'n
207 Cal. App. 4th 690
| Cal. Ct. App. | 2012Background
- Skov obtained a $1.5 million loan secured by a deed of trust on her Saratoga residence; MERS designated as nominee for lender and beneficiary.
- Deed of trust authorized foreclosure by MERS and its successors; NDEx, as MERS agent, served notice of default on June 10, 2009 with a compliance declaration recorded.
- MERS assigned the deed to U.S. Bank on July 16, 2009; U.S. Bank substituted NDEx as trustee on July 20, 2009; NDEx recorded a notice of trustee's sale on September 18, 2009.
- In June 2010 Skov filed a second amended complaint with nine causes of action, focusing on alleged missteps in assignment/foreclosure and 2923.5 compliance; three issues are at stake on appeal.
- U.S. Bank demurred; the trial court granted judicial notice of the deed of trust and related documents and dismissed the action with prejudice.
- The appellate court reversed the demurrer, finding the second amended complaint sufficiently pleaded a 2923.5 violation and that a factual dispute about compliance existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2923.5 compliance is a judicial notice issue | Skov contends the trial court erred in judicially noticing compliance and that noncompliance facts remain disputed. | U.S. Bank argues compliance is a factual matter properly proven by evidence, not judicial notice. | Factual dispute; no conclusive judicial notice. |
| Whether 2923.5 creates a private right of action | Mabry supports private action under 2923.5; Lu conflicts and undermines private remedy. | No express private right; Lu controls and Mabry is distinguishable or wrongly decided. | Private right exists under 2923.5. |
| Whether 2923.5 is preempted by federal law | Nonpreemption because state foreclosure rules govern state real property; private remedy remains under state law. | Federal banking regulation preempts state measures addressing loan servicing/foreclosure practices. | Not preempted; 2923.5 not federal preemption. |
Key Cases Cited
- Mabry v. Superior Court, 185 Cal.App.4th 208 (Cal. Ct. App. 2010) (private action under 2923.5; individualized compliance; statutory interplay with 2924g)
- Lu v. Hawaiian Gardens Casino, Inc., 50 Cal.4th 592 (Cal. 2010) (private right of action depends on legislative intent; Restatement approach scrutinized)
- Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (Cal. Ct. App. 2011) (judicial notice and compliance considerations in 2923.5 context)
- Daum v. SpineCare Medical Group, Inc., 52 Cal.App.4th 1285 (Cal. Ct. App. 1997) (standard for determining compliance facts in demurrer posture)
- Katzberg v. Regents of University of California, 29 Cal.4th 826 (Cal. 2002) (constitutional context cited in Lu distinction)
- BFP v. Resolution Trust Corp., 511 U.S. 531 (U.S. Supreme Court 1994) (foreclosure law across states; federal acknowledgment of state control)