Filed 7/22/14 Cumalioglu v. California Reconveyance Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARLA CUMALIOGLU, D062810

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2011-00093649-

CU-OR-CTL)

CALIFORNIA RECONVEYANCE

COMPANY et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,

Richard E.L. Strauss, Judge. Affirmed.

Jack M. Winick for Plaintiff and Appellant.

AlvaradoSmith, John M. Sorich, S. Christopher Yoo and Jenny L. Merris for

Defendants and Respondents. Marla Cumalioglu appeals the judgment dismissing her lawsuit against California

Reconveyance Company and U.S. Bank, N.A.1 (collectively, respondents) to set aside a

nonjudicial foreclosure sale of her real property. Cumalioglu contends the trial court

erroneously sustained respondents' demurrer to her second amended complaint without

leave to amend because her allegations of a break in the beneficiary's chain of title were

sufficient to state a cause of action for wrongful foreclosure. We affirm the judgment.

FACTUAL BACKGROUND

According to the allegations of Cumalioglu's second amended complaint and the

judicially noticed documents,2 the pertinent facts are as follows:

In October 2006, Cumalioglu borrowed $440,000 from Washington Mutual Bank,

F.A. In exchange, she signed a promissory note and executed a deed of trust on real

property naming California Reconveyance Company as trustee and Washington Mutual

Bank as beneficiary.

In September 2008, federal regulators closed Washington Mutual Bank, and the

Federal Deposit Insurance Corporation (FDIC) was appointed receiver. The FDIC

executed an agreement with JPMorgan Chase Bank, N.A., by which it purchased, among

1 The full description of this respondent is U.S. Bank, N.A., as trustee, successor in interest to Bank of America, N.A., as successor by merger to LaSalle Bank, N.A., as trustee for WaMu Mortgage Pass-Through Certificates Series 2006-AR19 Trust. In this opinion, we shall use U.S. Bank for brevity.

2 When reviewing a judgment of dismissal entered after a demurrer is sustained without leave to amend, we accept as true all properly pleaded factual allegations of the complaint and judicially noticed facts. (Code Civ. Proc., § 430.30, subd. (a); Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 81 (Siliga).) 2 other assets, all of Washington Mutual Bank's "mortgage servicing rights and

obligations." The FDIC transferred to JPMorgan Chase Bank all "[l]oan and collateral

records" and all "deeds, mortgages, abstracts, surveys, and other instruments or records of

title pertaining to real estate or real estate mortgages."

On March 3, 2011, JPMorgan Chase Bank recorded an assignment of the deed of

trust on Cumalioglu's property, together with the corresponding promissory note and

related rights, to Bank of America, N.A. The same day, California Reconveyance

Company, in its capacity as trustee under the deed of trust on Cumalioglu's property,

recorded a notice of default and election to sell under deed of trust, which stated

Cumalioglu was behind in her payments and her property could be sold without any court

action if she did not bring her account current. The notice and an attached declaration

indicated JPMorgan Chase Bank was the present beneficiary under the deed of trust.

On June 6, 2011, California Reconveyance Company, in its capacity as trustee

under the deed of trust on Cumalioglu's property, recorded a notice of trustee's sale. The

notice stated that Cumalioglu's property would be sold to the highest bidder at a public

auction on June 30. The auction was held on that date, and the property was sold to U.S.

Bank, which was indentified in the trustee's deed upon sale as successor in interest to

Bank of America.

PROCEDURAL BACKGROUND

Cumalioglu sued respondents, and in a second amended complaint asserted counts

labeled "To Set Aside Sale," "To Cancel Trustee's Deed," "Conversion," and

"Declaratory Relief." According to Cumalioglu, the "gravamen" of her lawsuit was that

3 respondents "were the improper parties to conduct a foreclosure sale"; and the allegation

central to each of her counts was that "[t]he foreclosure sale and the delivery and

recording of the Trustee's Deed Upon Sale [were] improper and without right as U.S.

Bank was not the holder of the Promissory Note or the beneficiary of the Deed of Trust."

Cumalioglu prayed for a judgment declaring the foreclosure sale improper, setting aside

the sale, restoring her to possession of the property, and awarding her compensatory and

punitive damages, attorney fees, and costs.

Respondents demurred to the second amended complaint on the ground that it

failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10,

subd. (e).) Respondents argued the promissory note and deed of trust were properly

transferred to U.S. Bank; and upon Cumalioglu's default, California Reconveyance

Company, as the trustee named in the deed of trust, was authorized to sell, and properly

sold, the property by public auction. Respondents also argued Cumalioglu had not

adequately alleged that she suffered prejudice from any impropriety in the foreclosure

process, or that she tendered the full amount of her indebtedness. In support of the

demurrer, respondents asked the trial court to take judicial notice of the deed of trust, the

agreement between the FDIC and JPMorgan Chase Bank, the assignment of the deed of

trust from JPMorgan Chase Bank to Bank of America, the notice of default, the notice of

trustee's sale, and the trustee's deed upon sale. (Evid. Code, §§ 451, 452.)

Cumalioglu opposed the demurrer. She argued her allegations showed "the

foreclosure was pursued by strangers and not by the required beneficiary who owns the

note and deed of trust," and "therefore the alleged sale was a 'nullity.' "

4 The trial court granted respondents' request for judicial notice and sustained their

demurrer without leave to amend. A judgment dismissing Cumalioglu's second amended

complaint with prejudice followed.

DISCUSSION

Cumalioglu contends the judgment must be reversed because her allegations of a

break in the beneficiary's chain of title were sufficient to state a cause of action for

wrongful foreclosure under Glaski v. Bank of America (2013) 218 Cal.App.4th 1079

(Glaski). We disagree. As we shall explain, Cumalioglu has not satisfied her burden on

appeal to demonstrate reversible error.

Standard of Review

"A demurrer tests the legal sufficiency of the factual allegations in a complaint.

We independently review the sustaining of a demurrer and determine de novo whether

the complaint alleges facts sufficient to state a cause of action or discloses a complete

defense. [Citation.] We assume the truth of the properly pleaded factual allegations,

facts that reasonably can be inferred from those expressly pleaded and matters of which

judicial notice has been taken. [Citation.] We construe the pleading in a reasonable

manner and read the allegations in context. [Citation.] We must affirm the judgment if

the sustaining of a general demurrer was proper on any of the grounds stated in the

demurrer, regardless of the trial court's stated reasons." (Siliga, supra, 219 Cal.App.4th

at p. 81.)

5 Analysis

Cumalioglu's appeal founders on fundamental principles of appellate review. It is

well-settled that a judgment is presumed correct, and to obtain reversal an appellant must

affirmatively show prejudicial error through reasoned argument, citation of material facts

in the appellate record, and discussion of applicable legal authority. (E.g., In re Sade C.

(1996) 13 Cal.4th 952, 994; Flores v. Department of Corrections & Rehabilitation (2014)

224 Cal.App.4th 199, 204 (Flores); Overhill Farms, Inc. v. Lopez (2010) 190

Cal.App.4th 1248, 1272.) "One cannot simply say the court erred, and leave it up to the

appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

" 'We are not bound to develop appellants' argument for them. [Citation.] The absence

of cogent legal argument or citation to authority allows this court to treat the contention

as waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

Under these established principles, Cumalioglu is not entitled to reversal of the

judgment. Her opening brief does not contain the required summary of significant facts,

citations to the record, or legal argument supported by citation of authority. (Cal. Rules

of Court, rule 8.204(a).) Nowhere does Cumalioglu discuss either the essential elements

of her claims or the allegations of her second amended complaint that correspond to those

elements. She simply (1) lists some allegations of a paragraph of her second amended

complaint describing recorded documents in the chain of title; (2) asserts the allegations

establish a break in the chain between Washington Mutual Bank and JPMorgan Chase

Bank; (3) insists we must accept her allegations as true; and (4) concludes she has

sufficiently stated a cause of action for wrongful foreclosure under Glaski, supra, 218

6 Cal.App.4th at page 1097, which held such a cause of action lay when a borrower alleged

the entity invoking the power of sale was not the holder of the deed of trust because the

purported assignment to that entity was void. Although Cumalioglu cites Glaski, she

"does not relate [it] to the facts of this case or show how [it] appl[ies] to demonstrate

error in the trial court's actions." (Flores, supra, 224 Cal.App.4th at p. 205.) Such

" 'conclusory claims of error will fail.' " (Multani v. Witkin & Neal (2013) 215

Cal.App.4th 1428, 1457.)

Moreover, Cumalioglu completely ignores the several documents concerning

chain of title of which the trial court took judicial notice and which respondents argued

defeated her claims. A trial court may consider facts subject to judicial notice when

ruling on a demurrer to a complaint (Code Civ. Proc., § 430.30, subd. (a); Evans v. City

of Berkeley (2006) 38 Cal.4th 1, 6), "and allegations in the pleading may be disregarded

if they are contrary to facts judicially noticed" (Scott v. JPMorgan Chase Bank, N.A.

(2013) 214 Cal.App.4th 743, 751). Cumalioglu does not argue on appeal that the court

improperly took judicial notice of any of the documents included in respondents' request,

or that the documents do not establish an unbroken chain of title as urged by respondents.

In the absence of such argument, we must presume the judicially noticed documents

support the order sustaining the demurrer without leave to amend and the ensuing

judgment of dismissal. (See, e.g., Flores, supra, 224 Cal.App.4th at p. 204 [" 'It is not

our place to construct theories or arguments to undermine the judgment and defeat the

presumption of correctness.' "]; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207

7 [" '[A]n appealed judgment is presumed correct, and appellant bears the burden of

overcoming the presumption of correctness.' "].)

Even if Cumalioglu had not forfeited her claim of error, we would still affirm the

judgment. "We must affirm the judgment if the sustaining of a general demurrer was

proper on any of the grounds stated in the demurrer, regardless of the trial court's stated

reasons." (Siliga, supra, 219 Cal.App.4th at p. 81; accord, Gomes v. Countrywide Home

Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) One of the grounds raised by

respondents' demurrer was that Cumalioglu failed to state facts sufficient to constitute a

cause of action because she had not alleged she suffered any prejudice as a result of an

irregularity in the foreclosure process. This ground has merit.

"[A] plaintiff in a suit for wrongful foreclosure has generally been required to

demonstrate the alleged imperfection in the foreclosure process was prejudicial to [her]

interests. [Citations.] Prejudice is not presumed from 'mere irregularities' in the

process." (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.) Even

if one of the beneficiaries in the chain of title to Cumalioglu's property lacked authority to

assign the deed of trust and related promissory note, "it is difficult to conceive how

[Cumalioglu] was prejudiced by [the] purported assignment, and there is no allegation to

this effect. Because a promissory note is a negotiable instrument, a borrower must

anticipate it can and might be transferred to another creditor. As to [Cumalioglu], an

assignment merely substituted one creditor for another, without changing her obligations

under the note." (Ibid.) Furthermore, Cumalioglu does not dispute she was in default,

and she does not allege the purported break in the chain of title "interfered in any manner

8 with her payment of the note [citation], nor that the [real beneficiary] would have

refrained from foreclosure under the circumstances presented." (Ibid.; accord, Siliga,

supra, 219 Cal.App.4th at p. 85.) If there were an unauthorized assignment causing a

break in the chain of title, "the true victim was not [Cumalioglu] but the [real

beneficiary], which would have suffered the unauthorized loss of a [$440,000]

promissory note." (Fontenot, at p. 272.) "Absent any prejudice, [Cumalioglu] ha[s] no

standing to complain about any alleged lack of authority or defective assignment."

(Siliga, at p. 85; accord, Herrera v. Federal National Mortgage Assn. (2012) 205

Cal.App.4th 1495, 1507-1508 [applying Fontenot's prejudice analysis to similar facts].)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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