KITCHING, J.
Plaintiff and appellant Alvaro E. Calderon's one-half interest in residential real property located at 1016-1018 East 24th Street in Los Angeles (the property) was fraudulently conveyed via a forged quitclaim deed to Roger Reyes, and then conveyed by Reyes to defendant and respondent Mario Martinez. The quitclaim deed was notarized by defendant and respondent Jairo Bautista. Martinez financed his purchase of the property in part with a loan from Inter Mountain Mortgage (IMM) secured by a deed of trust. IMM transferred and assigned the promissory note and deed of trust to the predecessor of defendant and respondent WMC Mortgage, LLC (WMC).
After a bench trial, the trial court issued a statement of decision wherein it ruled that the quitclaim deed purportedly conveying plaintiff's interest in the property to Roger Reyes was void, and that plaintiff had a one-half interest in the property. The trial court, however, ruled against plaintiff on his causes of action against Bautista. The trial court also ruled that WMC had an equitable lien on plaintiff's interest in the property because part of the proceeds from the IMM loan to Martinez were used to pay off a prior encumbrance on the property and a lien on the property by plaintiff's attorney. Pursuant to its statement of decision, the trial court entered judgment.
Plaintiff appeals the judgment on two main grounds. First, he contends that WMC lacked standing to pursue its amended cross-complaint against plaintiff because IMM did not properly transfer and assign Martinez's promissory note to WMC. Second, plaintiff argues that the judgment with respect to Bautista must be reversed because the trial court erroneously prohibited plaintiff from asking Bautista questions about his notarization of the forged quitclaim deed. For reasons we shall explain, we reject plaintiff's arguments and affirm the judgment.
In 1980, plaintiff's parents purchased the property. The property consisted of a larger house in the front and a smaller house in the back.
In 2002, after plaintiff's parents passed away, plaintiff and his five sisters agreed that plaintiff and his sister Mary J. Calderon (Mary) would acquire the property as part of their inheritance. At the time, the property was encumbered by a promissory note and associated deed of trust.
In order to pay off the existing encumbrance, Mary took out a $126,000 loan from Finance America, LLC (Finance America). In April 2002, Mary executed a promissory note to Finance America (Finance America Note) and related deed of trust (Finance America Deed of Trust). Prior to Mary's execution of the Finance America Note and Finance America Deed of Trust, plaintiff quitclaimed his interest in the property to Mary. On December 3, 2002, after Mary secured the loan from Finance America, Mary recorded a grant deed conveying the property to plaintiff and Mary, as joint tenants.
In 2005, Mary fell behind on the payments due under the Finance America Note. In order to stop Ocwen Loan Servicing LLC (Ocwen), the loan service provider for Finance America, from foreclosing on the property, plaintiff made several payments to Ocwen and Ocwen and Mary entered into a forbearance agreement. Mary, however, fell behind on the forbearance agreement. Plaintiff thus made additional payments to Ocwen pursuant to the forbearance agreement.
In November 2005, Mary executed a grant deed conveying her interest in the property to Ramiro Reyes. In April 2006, Ramiro Reyes executed a grant deed conveying the property to Roger Reyes.
On October 19, 2006, a quitclaim deed allegedly executed by plaintiff on October 18, 2006, was recorded. This deed purported to convey plaintiff's interest in the property to Roger Reyes. Plaintiff's alleged signature was notarized by respondent Bautista.
On October 30, 2006, Mario Martinez purchased the property from Roger Reyes for $400,000. In order to finance the purchase, Martinez obtained a $320,000 "non-conforming subprime" loan from IMM and an $80,000 loan from the seller, Roger Reyes. Martinez executed a $320,000 promissory note to IMM (IMM Note), a deed of trust dated April 5, 2006 (IMM Deed of Trust) securing the IMM Note, an $80,000 promissory note to Roger Reyes, and a deed of trust securing Martinez's note to Reyes (Second Deed of Trust).
Prior to the execution of the IMM Deed of Trust and IMM Note, IMM intended to sell its loan to Martinez to WMC Mortgage Corp. (WMC Corp), WMC's processor-in-interest. IMM thus obtained WMC Corp's preauthorization for the loan.
The proceeds from the $320,000 IMM loan were used to pay encumbrances on the property. Of relevance here, $146,156.14 was paid to Ocwen for the balance due under the Finance America Note, and $6,435.90 was paid to plaintiff's former attorney Kenneth A. Freeman to satisfy an abstract of judgment.
According to Diane Taylor, Assistant Vice President of Operations for WMC, WMC Corp purchased the $320,000 loan from IMM to Martinez on November 30, 2006. Taylor testified that the date of the purchase was reflected in a purchase schedule, a document Taylor printed out from WMC's computer system and which was introduced as evidence at the trial.
IMM and WMC Corp used MERS to assign the IMM Note and IMM Deed of Trust. MERS is an entity that keeps track of such assignments in an electronic medium in order to eliminate the necessity of actually preparing and recording assignments on paper.
A paper document, however, was soon needed. Martinez refused to make any payments due under the IMM Note because Mary refused to vacate possession of the property and, according to Martinez, was paying rent to plaintiff. Litton Loan Servicing LP (Litton), the servicing company for the IMM Note, needed a physical document in order to begin foreclosure proceedings on the property. Thus, on April 20, 2007, MERS executed, as nominee for IMM, a document entitled "Assignment of Deed of Trust" (Assignment). The Assignment, recorded on April 30, 2007, stated that IMM "grants, assigns, and transfers to" WMC Corp "all beneficial interest under" the IMM Deed of Trust and IMM Note.
On March 23, 2007, plaintiff commenced this action by filing a complaint for quiet title against Martinez, Mary, and Roger Reyes. As we shall explain, plaintiff subsequently amended his pleadings to add additional causes of action and additional defendants, including WMC.
On March 6, 2008, WMC filed a first amended cross-complaint (FACC), its operative pleading, against plaintiff and other parties. In its FACC, WMC sought, inter alia, the imposition of an equitable lien on plaintiff's interest in the property, if any.
On April 9, 2008, plaintiff filed a third amended complaint (TAC), his operative pleading, asserting numerous causes of action against Martinez, WMC, Bautista and other defendants.
The trial court held a bench trial in December 2008. Although plaintiff was represented by counsel when the litigation began, by the time the trial started he was in propria persona. Plaintiff testified and called as witnesses his sister Mary, Martinez, his sister Maria Calderon-Cauhutle, and Bautista. Most of plaintiff's evidence related to plaintiff's allegations regarding the quitclaim deed purportedly conveying his interest in the property to Roger Reyes. Plaintiff alleged that Bautista forged the deed himself or was involved in some sort of conspiracy to defraud him, that Martinez was not a bona fide good-faith purchaser, and that WMC had constructive notice of the forged deed. Plaintiff did not argue at trial, as he does on appeal, that the IMM Note was not properly assigned to WMC.
Martinez testified at the trial that he was employed by Romero Reyes to clean his office. He further testified that he did not know plaintiff's signature on the October 18, 2006, quitclaim deed was forged, and that he did not meet Bautista before this litigation.
Bautista testified that on October 18, 2006—the date Bautista notarized the quitclaim deed ostensibly conveying plaintiff's interest in the property to Roger Reyes—someone appeared at his office, identified himself as Alvaro Calderon and showed a driver's license as proof of identity. According to Bautista, however, the person who appeared in his office and signed the quitclaim deed was not plaintiff. Bautista testified that he did not know the person who signed the quitclaim deed was an imposter until after this litigation commenced.
WMC called three witnesses, including Gregory Lucas, the president and CEO of IMM, and Diane Taylor, the Assistant Vice President of Operations of WMC. Lucas and Taylor testified that Martinez obtained a $320,000 loan from IMM and that WMC Corp purchased that loan.
Lucas authenticated several documents, including the IMM Note (Exhibit 214) and a one-page document (Exhibit 227), which stated the following:
Lucas testified that Exhibit 227 was "stamped on the back of the [IMM Note] as we [IMM] sold it to . . . WMC."
Taylor testified that she retrieved Exhibit 227 from WMC's imaging system, that Exhibit 227 showed what was stamped on the back of the IMM Note, and that this was "a representation of the assignment of the Inter Mountain Mortgage loan to Mr. Martinez to WMC." Taylor also authenticated the Assignment, which stated that the beneficial interests in the IMM Note and IMM Deed of Trust were granted, assigned, and transferred to WMC Mortgage.
The IMM Note, Exhibit 227, and the Assignment were received into evidence without objection.
On May 6, 2009, the trial court issued a statement of decision. The trial court found the signature on the quitclaim deed dated October 18, 2006, was a forgery, and therefore the deed was void. The court thus ruled that plaintiff is now and at all times since December 3, 2002, has been the owner of an undivided one-half interest in the property. The court further ruled that Martinez is now and at all times since October 30, 2006, has been the owner of an undivided one-half interest in the property.
The court ruled against plaintiff with respect to his claims against Bautista. The court found Bautista to be a "credible" witness; that plaintiff did not prove Bautista knew or had reason to know that the person who appeared before him was an imposter; and that plaintiff did not prove Bautista was part of a conspiracy to defraud plaintiff.
With respect to WMC, the court found that it had no knowledge of the forgery until it was served with the lawsuit. Because of the forgery the court ruled that the IMM Deed of Trust only encumbered the undivided one-half interest of Martinez in the property.
The court ruled in WMC's favor on its equitable lien claim, imposing an equitable lien on plaintiff's one-half interest in the property in the following amounts: $146,155.14 for the amount paid to Ocwen to pay off the Finance America Note, plus $6,435.90 for the amount paid to satisfy attorney Freeman's abstract of judgment, plus 10 percent per annum prejudgment interest on said amounts beginning on October 30, 2006. In so ruling, the court stated: "The Court finds that in funding the loan and paying off the senior liens against the subject property, Inter Mountain Mortgage made the payment to protect its own interests, did not act as a volunteer, was not primarily liable for that debt, paid the entire debt in full and that subrogation, that is the imposition of an equitable lien, does not [do] any injustice to the rights of others."
The court further stated: ". . . Mr. Calderon testified that when the Finance America Deed of Trust went into foreclosure, he did not have the ability to cure the foreclosure. Had the foreclosure gone forward on the Finance America Deed of Trust, then Mr. Calderon's undivided one-half interest in the subject property would have been wiped out by the foreclosure, and this case would have been rendered moot. Payment of the Finance America Deed of Trust from the proceeds of the Inter Mountain Mortgage loan effectively protected Mr. Calderon's rights in the subject property enabling him to litigate the issue of title."
On May 26, 2009, plaintiff filed a "motion to dismiss WMC Mortgage for lack of standing." In this motion, plaintiff argued for the first time that WMC lacked standing to pursue its amended cross-complaint against plaintiff because it did not prove that it was the holder of the IMM Note. On June 24, 2009, the trial court denied plaintiff's motion.
On June 24, 2009, the trial court entered judgment. The judgment was consistent with the trial court's statement of decision described above.
On July 6, 2009, plaintiff filed a "motion [sic] intent to move for new trial." This document stated that plaintiff intended to move for a new trial. Because the actual motion for a new trial, if there was one, is not in the record, we cannot ascertain whether plaintiff asserted any arguments in his motion for new trial that he asserts on appeal.
On July 24, 2009, plaintiff filed a notice of appeal of the judgment. On August 12, 2009, the trial court denied plaintiff's motion for new trial.
Plaintiff's appeal raises two main issues:
Although plaintiff apparently concedes that the IMM Deed of Trust was assigned to WMC, he contends that the IMM Note was not. "[A] deed of trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the deed of trust without a transfer of the debt is without effect." (Domarad v. Fisher & Burke, Inc. (1969) 270 Cal.App.2d 543, 553-554; accord Kelley v. Upshaw (1952) 39 Cal.2d 179, 191-192.) Thus, if the IMM Note was not properly assigned, as plaintiff contends, WMC does not have an interest in the property pursuant to the IMM Deed of Trust.
The IMM Note was a "negotiable instrument" or an "instrument" within the meaning of the Uniform Commercial Code—Negotiable Instruments, as codified by Commercial Code section 3101, et seq. (UCC.) (Com. Code, § 3104, subds. (a) & (b); accord Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124, fn. 5 [a promissory note is a negotiable instrument].)
"`Holder,' means [¶] (A) the person in possession of a negotiable instrument that is payable either to bearer or, to an identified person that is the person; or [¶] (B) the person in possession of a document of title if the goods are deliverable either to bearer or to the order of the person in possession." (Com. Code, § 1201, subd. (21).) "`Bearer' means a person in possession of a negotiable instrument . . . ." (Com. Code, § 1201, subd. (5).)
Commercial Code section 3203 states in part: "(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. [¶] (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegally affecting the instrument."
"Negotiation" is defined as "a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder." (Com. Code, § 3201, subd. (a).) "`Delivery,' with respect to an instrument . . . means voluntary transfer of possession." (Com. Code, § 1201, subd. (15).)
Plaintiff argues that under the UCC an instrument is transferred if and only if possession of the instrument is given to the transferee. He further argues that WMC did not prove it was the holder of the IMM Note or a person entitled to enforce it because it did not present evidence at trial that WMC was in possession of the IMM Note. (Contra, Spencer v. DHI Mortg. Co., Ltd. (E.D. Cal. 2009) 642 F.Supp.2d 1153, 1166 [a party does not need possession of an original promissory note to conduct a non-judicial foreclosure under California law].) Assuming, without deciding, that WMC was required to "possess" the IMM Note, we reject plaintiff's argument.
We apply the substantial evidence standard to a superior court's findings of fact. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461 (SFPP).) Although the trial court did not expressly find that WMC was in possession of the IMM Note, it impliedly made such a finding. This because we presume the judgment is correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) and that the trial court made all factual findings necessary to support the judgment so long as substantial evidence supports those findings. (SFPP, at p. 462.) Under the substantial evidence test, we determine whether there is any substantial evidence, contradicted or uncontradicted, to support a factual finding, giving every reasonable inference and resolving all conflicts in the evidence in favor of the finding. (Ibid.)
Here, there was substantial evidence that WMC possessed the IMM Note, at least in an electronic medium. The IMM Note was produced at trial by WMC and admitted into evidence without objection. Exhibit 227, a certified copy of the stamp affixed to the back of the IMM Note, was also admitted at trial without objection. A WMC officer, Taylor, testified that Exhibit 227 was retrieved from WMC's computer system. This evidence impliedly showed that WMC was in possession of the IMM Note.
Other circumstantial evidence also supports this conclusion. The Assignment stated that IMM "grants, assigns, and transfers to" WMC Corp "all beneficial interest" under the IMM Note. Several witnesses also testified that the "loan" from IMM to Martinez was sold to WMC. Indeed, the undisputed evidence indicated both IMM and WMC believed that WMC was the holder of the IMM Note at the time of trial. This, too, supports a finding that WMC was in possession of the IMM Note.
Commercial Code section 3205, subdivision (a) provides: "If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a `special indorsement.' When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person."
Substantial evidence supports a finding that IMM Note was specially indorsed by IMM. It is undisputed that IMM was initially the holder of the IMM Note. An IMM officer, Lucas, testified that the stamp on the back of the IMM Note was executed by IMM Executive Vice President Dennis Phelan. The stamp stated "Pay To the Order Of" WMC Corp. Thus, under Commercial Code section 3205, subdivision (a), once Lucas signed Exhibit 227, the IMM Note became payable to WMC Corp, WMC's predecessor-in-interest.
In sum, substantial evidence supports the findings that WMC was the holder of the IMM Note, that the IMM Note was specially indorsed by IMM, that the IMM Note was payable to WMC, and that WMC was entitled to enforce it. WMC thus had standing to pursue its cause of action for equitable indemnity against plaintiff.
Plaintiff contends that certain hand-written letter A's on the October 18, 2006, quitclaim deed purportedly signed by plaintiff were the same as hand-written letter A's on the notarization of that document by Bautista. In plaintiff's view, this proves that the quitclaim deed was forged by Bautista.
Plaintiff argues the trial court erroneously prohibited him from examining Bautista regarding this issue as an adverse witness pursuant to Evidence Code section 776. At trial, plaintiff asked Bautista the following question: "So there is a one, two, three, four — about six `A's [on the notarization of the October 18, 2006, quitclaim deed] and each one of them is different. Is there a reason why you write your `A's different?" Before Bautista answered plaintiff's question, Bautista's attorney Hugo Troncosa, plaintiff Alvaro Calderon, and Mario Martinez's counsel Joseph D. Curd had the following discussion:
The trial court then asked Bautista a series of questions regarding the handwriting on the notarization. Bautista testified that the handwriting was his.
The trial court, plaintiff Calderon, attorney Curd, and counsel for American Contractors Indemnity Company, Robert J. Stroj, then had the following discussion:
We review the trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) In our view, the trial court did not abuse its discretion by precluding Bautista from testifying about why he allegedly wrote letter A's on the notarization differently. The "reason" Bautista allegedly wrote his letter A's inconsistently is irrelevant to whether the handwriting on Bautista's notarization is the same as the handwriting on the October 18, 2006, quitclaim deed. The trial court thus properly barred plaintiff from asking Bautista about this matter.
Even assuming the trial court abused its discretion by prohibiting plaintiff from asking Bautista about his letter A's on the notarization, we cannot reverse the judgment unless plaintiff shows the error resulted in a miscarriage of justice. (Evid. Code, § 354.) A miscarriage of justice occurs when "`a different result would have been probable if the error had not occurred.'" (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.)
Plaintiff did not meet his burden of showing a miscarriage of justice occurred. It is highly unlikely that Bautista's testimony regarding his letter A's would have changed the judgment. The trial court found that the handwriting on the quitclaim deed was not the same as the handwriting on the notarization and clearly indicated it would not change its view unless it was persuaded by a handwriting expert. Plaintiff, however, did not call such an expert as a witness, despite being given an opportunity to do so. The trial court's ruling on plaintiff's question to Bautista therefore did not result in a miscarriage of justice and cannot be the basis to reverse the judgment.
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur:
KLEIN, P. J.
ALDRICH, J.
