NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

HALLER, J.

Juan Martinez sued numerous entities seeking to prevent a foreclosure sale of his home based primarily on an alleged invalid assignment and securitization of his secured loan. The court entered judgment against Martinez after sustaining a demurrer without leave to amend on Martinez's second amended complaint against two defendants: CitiMortgage, Inc. and Citibank, N.A. Representing himself, Martinez appeals from this judgment. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

We summarize the record based on the properly pleaded factual allegations, information in materials attached to the complaint, and matters subject to judicial notice. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova); Crowley v. Katleman (1984) 8 Cal.4th 666, 672, fn. 2.)

In 2004, Martinez borrowed $542,500 from MIT Lending. The loan was reflected in a promissory note (Note) secured by a deed of trust (Deed of Trust) on Martinez's home. The Deed of Trust identified Martinez as the borrower; MIT Lending as the lender; Fidelity National Title Company as the trustee; and Mortgage Electronic Registration Systems (MERS) as beneficiary and "nominee for Lender and Lender's successors and assigns." The Deed of Trust provided MERS with the right to "exercise any or all of [the Lender's] interests" and stated "The Note . . . (together with this Security Instrument) can be sold one or more times without prior notice to Borrower."

Defendant CitiMortgage was the loan servicer on Martinez's loan. In September 2009, Martinez entered into a written loan modification agreement in which CitiMortgage and MERS agreed to lower Martinez's required monthly payments.

Martinez alleges that during the next several years MIT Lending attempted to, or did, transfer the Note and Deed of Trust to various securitized investment trusts. But the recorded documents show only that in May 2013, MERS, as nominee for MIT Lending, assigned the Note and Deed of Trust to Wilmington Trust Company (Wilmington), as trustee for a securitized mortgage investment trust, which we refer to as the Mortgage Trust.1 This assignment (Loan Assignment) was signed by Sandra West, who was identified on the document as an "Assistant Secretary" of MERS. According to Martinez's complaint, the Mortgage Trust is a real estate mortgage investment trust (REMIC) under federal tax laws, and is governed by a pooling and servicing agreement (PSA). Martinez alleged the closing date of the Mortgage Trust was December 15, 2004. Martinez also alleged that defendant Citibank was or is a trustee for the Mortgage Trust. Martinez acknowledged that at the time of the May 2013 Loan Assignment "he was in default of his loan obligations."

On November 25, 2014, Wilmington substituted NBS Default Services, LLC (NBS Default), as trustee on the Deed of Trust in place of Fidelity. The Substitution of Trustee was signed by an individual identified as an "Authorized Representative" of Wilmington "by and through its attorney-in-fact" CitiMortgage. The Substitution of Trustee was recorded on December 16, 2014.

On this same day, NBS Default recorded a Notice of Default. The document was signed by an NBS Default employee, and stated that Martinez owed $83,124.18 as of December 10 and this amount would increase until his account became current. The Notice of Default stated Martinez could obtain more information by contacting CitiMortgage "c/o NBS Default Services" at a specified address and phone number. Attached to the Notice of Default was a declaration by a CitiMortgage employee that the "mortgage servicer has contacted the borrower to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure as required by California Civil Code § 2923.55(b)(2)."

Three months after the Notice of Default was recorded (and before any foreclosure sale was noticed or took place), Martinez filed a complaint against numerous defendants, including CitiMortgage (the loan servicer) and Citibank (an alleged trustee of the Mortgage Trust) (collectively Citi defendants). After the court sustained a demurrer to the original complaint, Martinez filed a second amended complaint (the complaint at issue here). As against the Citi defendants Martinez asserted causes of action for wrongful foreclosure; slander of title; fraud; cancellation of instruments; violation of the Homeowner Bill of Rights; violation of California's unfair competition law (UCL); negligence; unjust enrichment; and request for declaratory relief.

The primary factual predicate underlying the claims was that there was a "botched securitization of [Martinez's] loan." Martinez alleged the Note and Deed of Trust had never been "effectively transferred" into the Mortgage Trust and therefore a foreclosure sale would be wrongful and CitiMortgage's continued collection of mortgage payments was improper. Martinez claimed "the true beneficiary is unknown after the chain of title . . . was irreversibly broken when the original lender sold Plaintiff's mortgage loan but failed to effectively transfer, assign and convey it to the securitization trust for the benefit of the unknown and multiple investors (Certificateholders) who funded the purchase of Plaintiff's NOTE and [Deed of Trust]." Martinez also alleged the "fraudulent and felonious [Loan Assignment] is a sham document which constitutes a clumsy attempt to obscure the false title assertions to the Subject Property by Defendants. When the assignment was executed, Plaintiff was in default of his loan obligations." (Italics added.)

Martinez additionally challenged the validity of the Notice of Default, claiming the wrong party executed and recorded the notice because NBS Default was not representing the true current beneficiary, and that NBS Default at "the behest of" Citibank and/or CitiMortgage filed "knowingly fraudulent and void foreclosure documents."

Demurrer

The Citi defendants demurred on numerous grounds, including: (1) a borrower has no standing to challenge the assignments and securitization of a secured loan; (2) a borrower has no legal right to obtain preemptive relief before a foreclosure sale has occurred; (3) Martinez's failure to tender the outstanding loan amounts bars his claims; and (4) Martinez did not identify any specific fraudulent or wrongful conduct on the part of the Citi defendants.

In response, Martinez argued "the pending action is NOT a foreclosure defense case," and instead the lawsuit was filed solely "to determine the identity of his creditor. . . ." He argued the primary issue is "whether or not the Defendants are in fact the true creditors of the Plaintiff with standing to undertake any action against Plaintiff and/or his property." Citing the then newly-filed Yvanova decision, Martinez also said his "essential allegation is [Wilmington's] receipt of title from MIT Lending[ ]" was invalid. (See Yvanova, supra, 62 Cal.4th 919.)

The trial court sustained the demurrer without leave to amend.

DISCUSSION

I. Review Standards

We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) It "is error for a trial court to sustain a demurrer [if] the plaintiff has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) In determining whether the pleading states a viable cause of action, we deem the factual allegations to be true, but disregard contentions, deductions, and legal conclusions. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300.) We also consider facts properly subject to judicial notice and information in exhibits attached to the complaint. (Ibid.; Duncan v. The McCaffrey Group, Inc. (2011) 200 Cal.App.4th 346, 360, disapproved on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1176, 1182.) These facts are given precedence if they contradict the factual allegations. (Hill, at p. 1300; Duncan, at p. 360; Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044-1045.)

If "a demurrer is sustained without leave to amend, [we] must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect; if so, [we] will conclude that the trial court abused its discretion by denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect." (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1035.)

Before examining Martinez's specific causes of action, we address a central point in Martinez's appellate briefs — he claims it is unfair the court dismissed his action before allowing him to present evidence at a trial. This assertion reflects a misunderstanding of the purpose of a demurrer. A demurrer is a vehicle to allow the court to determine whether there is a legal basis for the plaintiff's claims even assuming the facts alleged in his or her pleadings are true. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100.) If the alleged facts would support a cause of action under any legal theory, the demurrer must be overruled and the matter then proceeds to the proof stage, at a trial or other dispositive setting. However, if the factual allegations would not support a viable cause of action even if the plaintiff could prove those facts, the plaintiff could not prevail at trial as a matter of law. In such circumstance, a trial is unnecessary and the case is properly dismissed at the pleading stage.

II. Wrongful Foreclosure Cause of Action

Generally, the elements of a wrongful foreclosure cause of action are: "`(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.'" (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408, italics added.)

Martinez's allegations show he cannot meet these elements. Most important, his claims are premature because he admits no foreclosure sale has occurred. As reflected in element one above, a defendant can be held liable under a wrongful foreclosure theory only after the property was sold under a power of sale contained in a deed of trust. If a trustee's sale has not occurred, a cause of action for wrongful foreclosure is generally not ripe. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814-815 (Saterbak); Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154; see Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 511-513 (Jenkins), disapproved on another ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.)

Martinez suggests this rule does not bar his claim because he is merely seeking to determine the identity of the true holder of his Note and Deed of Trust. The argument is without merit. More than five years ago, this court held a plaintiff cannot prevail on "a lawsuit to find out whether" certain parties have the authority to initiate foreclosure proceedings (Gomes, supra, 192 Cal.App.4th at p. 1154, italics added), and we recently reaffirmed this holding (Saterbak, supra, 245 Cal.App.4th at pp. 814-815). We reasoned that California's nonjudicial foreclosure scheme "`provide[s] a comprehensive framework for the regulation of a nonjudicial foreclosure sale,'" and "[n]othing in the statutory provisions . . . suggests that . . . a judicial proceeding" to determine whether a party initiating foreclosure proceedings is the true noteholder "is permitted or contemplated." (Gomes, at p. 1154; accord, Saterbak, at pp. 814-815; Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 741-742 (Kan); Jenkins, supra, 216 Cal.App.4th at pp. 511-513; see also Dennis v. Wachovia Bank, FSB (N.D. Cal. 2011) 2011 WL 181373, *7-*8.)

Contrary to Martinez's contentions, the recent Yvanova decision does not alter these principles. (Yvanova, supra, 62 Cal.4th 919.) In Yvanova, the court held a plaintiff has standing to bring a wrongful foreclosure claim based on an alleged void (as opposed to voidable) loan assignment. (Id. at pp. 935-943.) But the high court expressly limited its holding to postforeclosure challenges. (Id. at p. 934.) The court acknowledged the judicial decisions disallowing the use of a lawsuit to preempt a nonjudicial foreclosure, and specifically stated that it was not addressing this issue. (Id. at pp. 933-934; see Saterbak, supra, 245 Cal.App.4th at p. 815.) Martinez's reliance on Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 (Glaski) is similarly misplaced. The Glaski plaintiff challenged the foreclosure sale after it occurred, and the Glaski court did not state or suggest a preemptive lawsuit is an authorized action. (Id. at pp. 1086, 1092-1101; see Kan, supra, 230 Cal.App.4th at p. 743.)

Moreover, even if this was a postforeclosure challenge, Martinez's allegations would not support a wrongful foreclosure action. Martinez's wrongful foreclosure claim is based on his assertion that the various assignments of the Note and Deed of Trust violated federal tax laws and provisions of the PSA governing the Mortgage Trust, including that the Mortgage Trust closed before the Note and Deed of Trust were transferred into this trust. However, this court has recognized that a transfer of a secured loan in violation of the terms of the securitized trust (such as a transfer after the trust's closing date) is at most a voidable, rather than a void, transaction that a homeowner/borrower has no standing to challenge. (Saterbak, supra, 245 Cal.App.4th at pp. 814-815.)2 Other Courts of Appeal have reached the same conclusion. (See, e.g., Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43; Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810-817; Yhudai v. Impac Funding Corp. (2016) 1 Cal.App.5th 1252, 1256-1260.) Although the Glaski court expressed a contrary view (Glaski, supra, 218 Cal.App.4th at pp. 1095-1097), we find Glaski unpersuasive on this point (Saterbak, supra, at p. 815, fn. 5; see Kalnoki, supra, 8 Cal.App.5th at p. 43; Mendoza, supra, 6 Cal.App.5th at pp. 810-817).

Martinez also appears to ground his wrongful foreclosure claim on the allegation that certain foreclosure documents (including the Loan Assignment and Substitution of Trustee) were signed by individuals without actual authority to do so. These allegations do not support Martinez's wrongful foreclosure claim. After Yvanova, the courts have held a challenge to a signatory's authority shows at most a voidable, and not a void, transaction, and thus is not a legal basis for a borrower's wrongful foreclosure claim. (See, e.g., Kalnoki, supra, 8 Cal.App.5th at p. 46; Mendoza, supra, 6 Cal.App.5th at p. 820; see also Maynard v. Wells Fargo Bank, N.A. (S.D. Cal. 2013) 2013 WL 4883202, at *8-*9.) We find the reasoning of these courts persuasive and agree with their conclusions.

III. Homeowner Bill of Rights

In his opening appellate brief, Martinez refers to his claims under the Homeowner Bill of Rights, and summarily asserts the court erred by "ignoring" these claims.

Martinez has forfeited this contention by failing to develop this argument or provide any supporting legal authority or reference to the relevant factual allegations. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Moreover, on our independent review of the facts and law, Martinez's challenge fails on its merits. In his complaint, Martinez refers to two statutes encompassed within the Homeowner Bill of Rights: Civil Code sections 2924.17 and 2923.55.3

Section 2924.17 requires a mortgage servicer to verify that recorded foreclosure documents are "accurate and complete and supported by competent and reliable evidence," and that it has "reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information." (§ 2924.17, subds. (a), (b).) Martinez alleges the Citibank defendants violated these provisions by filing inaccurate and fraudulent "foreclosure documents." He seeks compensatory damages, including various fees and costs associated with "the imminent loss of his Property."

These allegations do not state a viable cause of action under section 2924.17. Martinez specifically identifies only one document — the Loan Assignment — that allegedly violated section 2924.17. In this document, MERS transferred the Note and Deed of Trust to Wilmington, as trustee for the Mortgage Trust. Martinez has not alleged any facts to show this document contained any false information, and thus there is no showing CitiMortgage's involvement in recording the document violated section 2924.17. Additionally, a party is not entitled to recover damages for a section 2924.17 violation until after a trustee's deed upon sale has been recorded. (§ 2924.12, subds. (a)(1), (b).) In this case, there was no trustee's deed recorded pertaining to the Note or Deed of Trust, as no foreclosure sale has been conducted.

We reach similar conclusions on Martinez's claims under section 2923.55, which imposes various requirements before a mortgage servicer can properly record a notice of default. Martinez does not allege any conduct by the Citi defendants that constituted a violation of these statutory requirements. He alleged only that he is entitled to a judicial determination under this statute because the "beneficiary named in the [Deed of Trust] was fictitious and nonexistent. . . ." This is a conclusory allegation that is insufficient to overcome a demurrer. Additionally, there is nothing in the cited statute providing a homeowner with the right to declaratory or injunctive relief based on the allegation of an improper loan assignment or an invalid party to a loan document. The Legislature did not provide for this type of relief in the Homeowner Bill of Rights. (See Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 158.)

IV. Remaining Causes of Action

The court also sustained the demurrer without leave to amend on Martinez's remaining causes of action against the Citi defendants, including: (1) slander of title; (2) fraud; (3) cancellation of written instrument; (4) violation of the UCL; (5) negligence; and (6) unjust enrichment. By failing to discuss or even mention these causes of action in his appellate briefs, Martinez has forfeited challenges to the court's rulings on these claims.

We have also independently reviewed each of these causes of action, and agree with the trial court that the alleged facts do not support a viable claim. The factual allegations underlying these causes of action are essentially identical to the factual allegations underlying the wrongful foreclosure and Homeowner Bill of Rights causes of action, and they fail for the same reasons. Additionally, Martinez did not allege any facts showing the Citi defendants made any false representations to Martinez, or that Martinez relied on any representation by these defendants.

V. Amendment

An appellate court must reverse a judgment sustaining a demurrer if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The plaintiff has the burden of showing a reasonable possibility of curing a defect by amendment. (Ibid.; Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44.)

The court did not abuse its discretion in denying Martinez leave to file a second amended complaint. Martinez had a full opportunity to amend his complaint to state a cause of action after the court sustained the demurrer to his original complaint. There is nothing in the record or in Martinez's appellate briefs showing he could add facts to his second amended pleading that would support a viable cause of action under California law.

DISPOSITION

Judgment affirmed. Appellant to bear respondents' costs on appeal.

BENKE, Acting P. J. and NARES, J., concurs.