Tobin v. Wilmington Savings Fund Society CA2/1 ( 2021 )

Filed 5/20/21 Tobin v. Wilmington Savings Fund Society CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STEVEN TOBIN, B299887
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC687673)
v.
WILMINGTON SAVINGS FUND
SOCIETY, FSB, et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of
Los Angeles County, John P. Doyle, Judge. Affirmed.
Michael N. Sofris for Plaintiff and Appellant.
Ghidotti Berger, Shannon C. Williams and Cuong M.
Nguyen for Defendant and Respondent Wilmington Savings Fund
Society, FSB, dba Christiana Trust.
Wright, Finlay & Zak, Todd E. Chvat and Jonathan D. Fink
for Defendants and Respondents DLJ Mortgage Capital, Inc. and
U.S. Bank, N.A., Asset Backed Securities Corp. Home Equity
Loan Trust Series AMQ 2006-HE7.
____________________________
Plaintiff and appellant Steven Tobin defaulted on a note
secured by a deed of trust recorded against real property. Anchor
Landing Investment, LLC (Anchor) subsequently purchased the
property in a nonjudicial foreclosure sale. Tobin sued several
entities alleging that several assignments of the deed of trust and
a substitution of trustee were void. The trial court entered two
summary judgments: one in favor of Wilmington Savings Fund
Society, FSB, D/B/A Christiana Trust (Wilmington), and the
other in favor of DLJ Mortgage Capital, Inc. (DLJ) and U.S.
Bank, N.A., Asset Backed Securities Corp. Home Equity Loan
Trust Series AMQ 2006-HE7 (U.S. Bank), self-described as
“interim owners of the subject loan prior to its sale and transfer
to the foreclosing beneficiary” Wilmington.
For the reasons set forth in our Discussion, we conclude the
trial court did not err in granting summary judgment in favor of
Wilmington, DLJ, and U.S. Bank and in rejecting as a matter of
law, that the assignments and substitution of trustee were void.
We thus affirm both summary judgments.
BACKGROUND
On August 19, 2006, Tobin obtained a loan in the amount of
$495,000. Tobin signed a promissory note. The note was secured
by a deed of trust recorded against the real property located at
3896 3rd Avenue, Los Angeles, California (the Property). Quality
Loan Service Corporation recorded a notice of default and
election to sell under deed of trust on May 15, 2017. The notice
states, and Tobin does not dispute, that Tobin owed principal and
interest since July 1, 2007.
2
Anchor, who is not a party to this appeal, purchased the
Property at a nonjudicial foreclosure sale held on November 21,
2017. On December 20, 2017, Tobin filed the current lawsuit.
1. Factual Background
For purposes of this appeal, we accept as true the following
factual description recited by Tobin in his opening brief on
appeal:
“On or about August 19, 2006, Appellant [Tobin] signed a
Deed of Trust with Ameriquest Mortgage Company . . . regarding
real property more commonly known [as] 3896 3rd Avenue,
Los Angeles, CA 90008 . . . which was recorded on September 14,
2006 in the Office of the Los Angeles County Recorder under
instrument number XX-XXXXXXX.” (Boldface omitted.)
“On August 28, 2006, [Ameriquest] signed an Assignment
of Deed of Trust.” The assignment “was recorded in the Los
Angeles County Recorder’s office under instrument # 06 1997152
on 9/7/06.” (Boldface omitted.) The assignee was U.S. Bank.
“On or about May 7, 2007, Select Portfolio Servicing . . .
signed a Substitution of Trustee . . . as the alleged attorney-in-
fact for DLJ, recorded August 3, 2007 in the Office of the
Los Angeles County Recorder under instrument number
20071838388.” Quality Loan Service Corporation replaced Town
and Country Title Services, Inc. as trustee.
“On or about January 7, 2017, an Assignment of Deed of
Trust was . . . signed by US Bank as assignor in favor of DLJ as
assignee, recorded February 10, 2017 in the Office of the
Los Angeles County Recorder . . . .”
“On or about February 1, 2017[,] an Assignment of Deed of
Trust was . . . signed [by] DLJ as assignor in favor of
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[Wilmington] as assignee, recorded March 16, 2017 in the Office
of the Los Angeles County Recorder . . . .”
On May 11, 2017, Rachel C. Kenny signed a notice of
default and election to sell under deed of trust on behalf of
Quality. The notice was recorded on May 15, 2017. On May 11,
2017, Quality recorded a notice of default. On September 1, 2017,
Quality signed a notice of trustee sale and recorded it five days
later. On November 28, 2017, Quality signed a trustee’s deed
upon sale and recorded it on December 5, 2017. The trustee’s
deed upon sale “states that the Property was sold by the Trustee
at public auction on November 21, 2017 at the place named in the
Notice of Sale.”
2. First Amended Complaint
In his first amended complaint, Tobin alleged causes of
action for wrongful foreclosure, quiet title, cancellation of
instruments, trespass, trespass to chattels, and four causes of
action for declaratory relief. Tobin alleged that the first
assignment of the deed of trust to U.S. Bank described an
incorrect document number and recording date and therefore was
void. Tobin averred that because this first assignment was void
all subsequent assignments also were void.
Tobin further alleged that, under the Probate Code, “only a
‘natural person’ can grant a power of attorney.” Based on this
contention, he alleged that the substitution of trustee from
Trustee Town and Country Title Services, Inc. to Quality was
void because Select Portfolio Servicing, the signatory, was not a
natural person. Tobin contends the trustee sale conducted on
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November 21, 2017 was void because the assignments and
substitution of trustee were void.1
Although the first amended complaint named numerous
defendants, the only respondents are DLJ, U.S. Bank, and
Wilmington. Tobin named DLJ and U.S. Bank as defendants in
the four declaratory relief causes of action, one of which Tobin
represents was dismissed.2 Tobin named Wilmington as a
defendant in the five wrongful foreclosure causes of action, the
quiet title cause of action, the cancellation of instrument cause of
action, and all the declaratory relief causes of action.3
In his first amended complaint, Tobin identified the
defendants as business entities. DLJ and U.S. Bank describe
themselves as prior owners of the promissory note secured by the
1 In Tobin’s own words, his first amended complaint
“contend[s] that a Corporate Assignment of Deed of Trust dated
August 28, 2006 but recorded on June 26, 2007 failed to assign
the deed of trust to Respondent US Bank, . . . because the
assignment does not accurately describe the deed of trust or the
document number assigned. . . . The assignment refers and
incorporates the note, thus, since the assignment was defective
the note was never properly assigned.” Further, according to
Tobin, he “contends that the Defective Assignment rendered all
subsequent assignments of the deed of trust and ‘note’ . . . void
because an assignee can’t assign rights it never had.”
2 Tobin provides no citation to the record; he merely states
the trial court “sustained without leave to amend dismissing the
Thirteenth Cause of Action.” For purposes of this appeal, we
accept his representation as true.
3 Wilmington filed a cross-complaint, which is not at issue
in the current appeal. Anchor also filed a cross-complaint, which
is also not at issue in this appeal. Anchor filed an unlawful
detainer complaint against Tobin, which claim is not before us.
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Property, and Tobin does not dispute that description. Tobin
cites to no evidence that DLJ or U.S. Bank had an interest in the
note or the Property at the time Tobin filed his lawsuit.
3. Summary Judgment
In Wilmington’s motion for summary judgment,
Wilmington argued, among other contentions, that Tobin lacked
standing to challenge the assignments and substitution of
trustee. Wilmington also argued that a 2011 lawsuit barred
Tobin’s claims under the doctrines of res judicata and collateral
estoppel.4 Wilmington argued that because it held the original
promissory note, as a matter of law it was entitled to foreclose on
the Property irrespective of any defect in any assignment of the
deed of trust. Finally, Wilmington contended that Tobin’s
challenge to the assignments was unfounded as a matter of law.
In a declaration in support of Wilmington’s motion, its
administrator stated: “At all times since purchasing the Loan
from DLJ Mortgage, th[r]ough March 13, 2019, Defendant
[Wilmington] was in possession of the original Note, which it
obtained from DLJ Mortgage as part of the purchase of the Loan.
On March 13, 2019, I instructed my assistant to forward the
original Note to Defendant’s counsel, for presentation to the
4 In 2011, Tobin filed a lawsuit against Ameriquest
Mortgage Company, Select Portfolio Servicing, Inc., DLJ, and
Credit Suisse. Tobin alleged inter alia a cause of action for
improper foreclosure. It is undisputed that Tobin “specifically
raised allegations pertaining to a purported lack of ‘assignment
or Substitution of Trustee’, and that defendants in that case did
not possess the original note and had no right to foreclose . . . .”
The trial court entered judgment in favor of the defendants.
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Court . . . .” As noted, the trial court granted summary judgment
in favor of Wilmington.
DLJ and U.S. Bank moved for summary judgment arguing,
among other things, that Tobin was not entitled to declaratory
relief (the only causes of action alleged against these defendants)
because there was no actual controversy against them. They also
argued Tobin lacked standing to challenge the assignments. DLJ
and U.S. Bank maintained that the assignments were not void
and that the Probate Code does not apply to this case. They also
joined in all of Wilmington’s arguments. The trial court granted
DLJ and U.S. Bank’s motion for summary judgment.
STANDARD OF REVIEW
Our standard of review of a summary judgment is familiar.
“As a summary judgment motion raises only questions of law
regarding the construction and effect of supporting and opposing
papers, this court independently applies the same three-step
analysis required of the trial court. We identify issues framed by
the pleadings; determine whether the moving party’s showing
established facts that negate the opponent’s claim and justify a
judgment in the moving party’s favor; and if it does, we finally
determine whether the opposition demonstrates the existence of a
triable, material factual issue. [Citations.]” (Tsemetzin v. Coast
Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)
This court reviews the trial court’s ruling, “not its rationale.”
(Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.)
This court’s obligation to conduct a “de novo review [of the
grant of summary judgment] does not obligate us to cull the
record for the benefit of the appellant in order to attempt to
uncover the requisite triable issues. As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively
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demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.” (Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116 (Lewis),
disapproved on another ground as recognized in Kaufman &
Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 41–42; see also Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768 [“appellate court is not required
to search the record on its own seeking error”]; Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1111, 1115 (Guthrey)
[rejecting appellant’s challenge to the grant of summary
judgment because, although appellant argued a “ ‘plethora of
admissible evidence’ indicate[d] a triable issue of fact existed” on
many of his claims, appellant waived the argument by failing to
identify where the evidence could be found in the record].)
DISCUSSION
We start our analysis with our high court’s description of a
nonjudicial foreclosure sale of property. “A deed of trust to real
property acting as security for a loan typically has three parties:
the trustor (borrower), the beneficiary (lender), and the trustee.
‘The trustee holds a power of sale. If the debtor defaults on the
loan, the beneficiary may demand that the trustee conduct a
nonjudicial foreclosure sale.’ [Citation.] The nonjudicial
foreclosure system is designed to provide the lender-beneficiary
with an inexpensive and efficient remedy against a defaulting
borrower, while protecting the borrower from wrongful loss of the
property and ensuring that a properly conducted sale is final
between the parties and conclusive as to a bona fide purchaser.
[Citation.] [¶] The trustee starts the nonjudicial foreclosure
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process by recording a notice of default and election to sell.
(Civ. Code, § 2924, subd. (a)(1).)” (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 926–927 (Yvanova).)
On appeal, Tobin argues that (1) he has standing to
challenge the assignments of the deed of trust and substitution of
trustee; (2) the doctrines of res judicata and collateral estoppel do
not bar his lawsuit; (3) Wilmington’s possession of the note was
not “equal to the power of sale”; (4) the assignments of the deed of
trust and substitution of trustee did not comply with
requirements of the Probate Code; and (5) Tobin’s causes of
action for declaratory relief were sufficient. Tobin also titles an
argument “Appellant’s Evidence in Dispute,” and in that section,
he cites generally to his papers filed in the trial court. (Boldface
omitted.)
We begin with the dispositive issues: (1) whether any
evidence raised a triable issue of material fact supporting the
inference that the assignment of the deed of trust to U.S. Bank
was void; and (2) whether the Probate Code governs the
assignments and substitution of trustee. We conclude as a
matter of law, no assignment or substitution of trustee was void.
We then consider Tobin’s remaining arguments; none
demonstrates any error.
A. As a Matter of Law, Tobin Fails to Show Any
Assignment or Substitution of Trustee Was Void
Tobin’s attack on the trial court court’s rulings hinge on the
following contentions: (1) the first assignment from Ameriquest
to U.S. Bank was void because of an incorrect instrument number
and date; and (2) the substitution of trustee and assignments
did not comply with the Probate Code.
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1. The assignment to U.S. Bank was not void for
referencing the incorrect instrument and date
in the recorded document
The recorded assignment from Ameriquest to U.S. Bank,
(the first assignment), refers to the correct legal description of the
Property and the correct trustor (Tobin), but recites an incorrect
instrument number for the deed of trust. It recites that the
assignment relates to instrument number XX-XXXXXXX when, in
fact, it should have identified instrument number XX-XXXXXXX. It
also states the incorrect date of the recording of that instrument.
The reference to an incorrect instrument number and date
in the recorded assignment does not render the assignment void.
To render the assignment void would require evidence that
U.S. Bank “did not receive a valid assignment of the debt in any
manner.” (Fontenot v. Wells Fargo Bank, N.A. (2011)
198 Cal.App.4th 256, 272, disapproved on another ground in
Yvanova, supra, 62 Cal.4th at pp. 937 & 939, fn. 13; Herrera v.
Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495,
1506 [quoting Fontenot], disapproved on another ground in
Yvanova, at p. 939, fn. 13]; cf. Burkett v. Doty (1917) 176 Cal. 89,
93 [assignment that was “duly signed, acknowledged, and
delivered” was evidence that the assignor intended to transfer
note to assignee].)5
5 Yvanova disapproved of Fontenot and Herrera to the
extent they held that borrowers lack standing to challenge an
assignment of the deed of trust as void. (Yvanova, supra,
62 Cal.4th at p. 939, fn. 13.) Yvanova, however, rejected that a
borrower has standing to attack an assignment that is merely
voidable. (Id. at p. 939.)
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Tobin makes no argument that the assignment to
U.S. Bank was not duly signed, acknowledged or delivered.
Tobin does not challenge that Ameriquest had an intention to
transfer its rights to U.S. Bank. Similarly, Tobin identifies no
evidence raising a triable issue of material fact supporting any
inference that Ameriquest lacked the intention to transfer its
rights to U.S. Bank even though the scrivener put the wrong
instrument number on the recorded document. In sum, he fails
to demonstrate that U.S. Bank did not receive a valid assignment
“in any manner.” (Fontenot, supra, 198 Cal.App.4th at p. 272,
italics omitted.) Tobin’s argument that all the assignments were
void because the first one recited the wrong instrument number
and date of recordation thus lacks merit as a matter of law.
2. The Probate Code does not render the
assignments or substitution of trustee void
Tobin argues that under the Power of Attorney Law
division of the Probate Code (Prob. Code, § 4000 et seq.) only a
natural person could sign the assignments and substitution of
trustee.6 We disagree because the Probate Code sections on
6 Probate Code section 4014 provides: “(a) ‘Attorney-in-
fact’ means a person granted authority to act for the principal in
a power of attorney, regardless of whether the person is known as
an attorney-in-fact or agent, or by some other term. [¶]
(b) ‘Attorney-in-fact’ includes a successor or alternate attorney-in-
fact and a person delegated authority by an attorney-in-fact.”
Probate Code section 4022 provides: “ ‘Power of attorney’
means a written instrument, however denominated, that is
executed by a natural person having the capacity to contract and
that grants authority to an attorney-in-fact. A power of attorney
may be durable or nondurable.” Probate Code section 4026
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which Tobin relies do not apply to the assignments or
substitution of trustee he is attacking.
Probate Code section 4050 provides: “(a) This division
applies to the following: [¶] (1) Durable powers of attorney,
other than powers of attorney for health care . . . [¶]
(2) Statutory form powers of attorney under Part 3 (commencing
with Section 4400). [¶] (3) Any other power of attorney that
incorporates or refers to this division or the provisions of this
division. [¶] (b) This division does not apply to the following:
(1) A power of attorney to the extent that the authority of the
attorney-in-fact is coupled with an interest in the subject of the
power of attorney. [¶] (2) Reciprocal or interinsurance
exchanges and their contracts, subscribers, attorneys-in-fact,
agents, and representatives. [¶] (3) A proxy given by an
attorney-in-fact to another person to exercise voting rights. [¶]
(c) This division is not intended to affect the validity of any
instrument or arrangement that is not described in
subdivision (a).”
Thus, on its face, Probate Code section 4050, subdivision (a)
does not include an assignment of deed of trust or a substitution
of trustee, and the statute expressly disclaims affecting
instruments not described in subdivision (a). (See Prob. Code,
§ 4050, subd. (c).) Furthermore, Tobin does not argue that the
assignments and substitution of trustee incorporated or referred
to the Power of Attorney Division of the Probate Code. (See
Prob. Code, § 4050, subd. (b).)
provides that a “ ‘[p]rincipal’ means a natural person who
executes a power of attorney.”
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Probate Code section 4051 confirms this conclusion:
“Except where this division provides a specific rule, the general
law of agency, including Article 2 (commencing with Section
2019) of Chapter 2 of Title 6 of, and Title 9 (commencing with
Section 2295) of, Part 4 of Division 3 of the Civil Code, applies to
powers of attorney.” Tobin does not cite to section 4051 or to the
general law of agency. He has forfeited any claim that the
assignments and substitution of trustee are void under
general agency law. (Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277 [failure to cite to authority and provided
reasoned argument forfeits argument on appeal]; Badie v. Bank
of America (1998) 67 Cal.App.4th 779, 784–785 [“When an
appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the
point as waived.”].) In sum, Tobin’s argument that the
assignments of the deed of trust and the substitution of trustee
failed to comply with the Power of Attorney Law sections in the
Probate Code demonstrates no error in the judgment because the
Power of Attorney Law does not apply to this case.
3. Tobin raises no triable issue of material fact
The section in Tobin’s brief entitled, “Appellant’s Evidence
in Dispute,” in fact, identifies no triable issue of material fact for
each cause of action. Tobin just references his attorney’s entire
declaration, all pages of all supporting exhibits, and his entire
separate statement in opposition to both summary judgments as
containing purported disputed facts. By generally citing to the
totality of his pleadings and evidence, Tobin improperly requests
this court to cull through these documents to determine if there is
a triable issue of fact. We decline that invitation. (Lewis, supra,
93 Cal.App.4th at p. 116; see also Guthrey, supra, 63 Cal.App.4th
13at pp. 1111, 1115.) Tobin has thus failed to demonstrate error.
(Lewis, at p. 116 [“[I]t is the appellant’s responsibility to
affirmatively demonstrate error and, therefore, to point out the
triable issues the appellant claims are present by citation to the
record and any supporting authority.”].)
B. Tobin Failed to Demonstrate Standing to Challenge
the Assignments and Substitution of Trustee
Citing Yvanova, supra, 62 Cal.4th 919, Tobin argues that
he has standing to challenge the assignments and substitution of
trustee. In Yvanova, our high court held an allegation that an
assignment is void, not voidable, supports an action for wrongful
foreclosure. (Id. at p. 923; see also Dimock v. Emerald Properties
LLC (2000) 81 Cal.App.4th 868, 876–877 [sale of property by
trustee who lacked title was void].) “If a purported assignment
necessary to the chain by which the foreclosing entity claims that
power is absolutely void, meaning of no legal force or effect
whatsoever [citations], the foreclosing entity has acted without
legal authority by pursuing a trustee’s sale, and such an
unauthorized sale constitutes a wrongful foreclosure.” (Yvanova,
at p. 935.) Yvanova further explained that a void contract is a
contract with no legal effect. (Id. at p. 929.) “A voidable
transaction, in contrast, ‘is one where one or more parties have
the power, by a manifestation of election to do so, to avoid the
legal relations created by the contract, or by ratification of the
contract to extinguish the power of avoidance.’ [Citation.] It may
be declared void but is not void in itself. [Citation.] Despite its
defects, a voidable transaction, unlike a void one, is subject to
ratification by the parties. [Citations.]” (Id. at p. 930.)
Tobin had the burden to prove that he has standing.
(Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th
14808, 814.) Tobin had the opportunity to demonstrate that the
assignments and substitution of trustee were void, but as
explained above, he failed to carry that burden. For this
additional reason, the trial court properly summarily adjudicated
the wrongful foreclosure causes of action.
C. Tobin’s Other Arguments Are Moot in Light of His
Failure to Show a Disputed Issue of Fact that the
Assignments and Substitution of Trustee Were Void
In retort to respondents’ arguments, Tobin asserts (1) the
doctrines of collateral estoppel and res judicata do not apply to
the current lawsuit; (2) Wilmington’s possession of the note
did not trump a void assignment; and (3) he properly stated
causes of action for declaratory relief. We need not address these
arguments because we have concluded that there are no triable
issues of fact as to Tobin’s claim that the assignments and
substitution of trustee were void, and thus no error in the trial
court’s granting of summary judgment in favor of all
respondents.7
7 For the first time, Tobin argues in his reply brief:
(1) “Wilmington and DLJ’s Separate Statement of Undisputed
Facts In Support of their respective Motions For Summary
Judgment . . . Do Not Contend That either Wilmington or DLJ
were in possession of the ‘Wet Ink’ Original Promissory Note At
Any Time”; (2) “Wilmington Has Not Established That It Was In
Possession of the Wet-Ink Original Promissory Note When It
Caused Plaintiff’s Real Property To Be Sold At A Trustees [sic]
Sale On November 21, 2017”; (3) “Wilmington never produced the
‘wet-ink’ original note”; (4) the Trial Court erred when it
considered Wilmington’s possession of the original note because
the note was not produced until the hearing on summary
judgment; (5) “[a] foreclosure sale initiated and conducted by an
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DISPOSITION
The judgment in favor of Wilmington Savings Fund
Society, FSB, D/B/A Christiana Trust is affirmed. The judgment
in favor of U.S. Bank, N.A.; Asset Backed Securities Corp. Home
Equity Loan Trust Series AMQ 2006-HE7; DLJ Mortgage
Capital, Inc. is affirmed. Respondents are awarded their costs on
appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
entity that is not a beneficiary is void”; and (6) “DLJ caused the
recordation of the Substitution of Trustee and Notice of Default.”
(Boldface omitted.) We decline to consider these arguments.
(Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486 [“It is
elementary that points raised for the first time in a reply brief
are not considered by the court.”]; see also United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158.)
16