White v. Wells Fargo Home Mortgage CA1/4 ( 2015 )


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  • Filed 7/2/15 White v. Wells Fargo Home Mortgage CA1/4
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    MAURA WHITE,
    Plaintiff and Appellant,
    A140195
    v.
    WELLS FARGO HOME MORTGAGE,                                           (Alameda County
    Super. Ct. No. HG12648600)
    Defendant and Respondent.
    I.
    INTRODUCTION
    Maura White sued Wells Fargo Home Mortgage (Wells Fargo) for refusing to
    permanently modify her payment obligations under her home mortgage loan. After
    sustaining a demurrer to White’s second amended complaint without leave to amend, the
    trial court entered judgment in favor of Wells Fargo. We affirm.
    II.
    STATEMENT OF FACTS
    A. Background1
    In July 2003, White obtained a $397,000 adjustable rate mortgage loan from
    World Savings Bank, FSB (the loan). The loan was secured by a deed of trust against
    White’s residential property in Castro Valley. In 2008, World Savings Bank changed its
    1
    The trial court took judicial notice of documentary evidence pertaining to the
    background of this case, which is included in the Appellant’s Appendix and referenced
    by the parties in their briefs.
    1
    name to Wachovia Mortgage, FSB, and, in 2009, Wells Fargo merged with Wachovia
    and became the beneficial owner of White’s loan.
    According to an April 2010 “Notice of Default and Election to Sell Under Deed of
    Trust,” White stopped making payments on her loan in May 2009. A trustee sale was
    noticed for November 8, 2010. However, White avoided foreclosure by filing a
    Chapter 13 bankruptcy petition on November 2, 2010.
    In May 2011, the bankruptcy court confirmed White’s Chapter 13 bankruptcy
    plan. In paragraph 4 of that plan, White stated that she would make payments on her loan
    in the amount $2,400 a month directly to the lender. Notwithstanding this unqualified
    representation, White made a seemingly inconsistent proposal in paragraph 7 of her plan,
    which stated: “Debtor is seeking loan modification from Wachovia/Wells Fargo on 1st
    deed of trust. Debtor will make estimated HAMP payment until modification approved
    or denied. No arrearage claim to be paid through plan. If debtor is granted a loan
    modification, arrears will be dealt with through modification. If debtor is denied
    modification, or 6 months elapses from date of filing with no modification, property will
    be surrendered.”
    B. HAMP
    The proposal to make “HAMP” payments that White included in her Chapter 13
    plan was a reference to the Home Affordable Mortgage Program. Because HAMP
    became the centerpiece of White’s subsequent lawsuit against Wells Fargo, we briefly
    summarize its function and requirements.
    Pursuant to the Troubled Asset Relief Program (TARP), the United States
    Treasury Department implemented a plan to minimize home foreclosures. (Bushell v.
    JPMorgan Chase Bank, N.A. (2013) 
    220 Cal. App. 4th 915
    , 922-933 (Bushell).) “That
    plan was HAMP, introduced in February 2009, and funded by a $50 billion set-aside of
    TARP monies to induce lenders to refinance mortgages to reduce monthly payments for
    struggling homeowners. [Citation.]” (Ibid.)
    Under HAMP, “qualifying homeowners may obtain permanent loan modifications
    that reduce their mortgage payments. Lenders receive various incentives from the
    2
    government for each HAMP modification. [Citation.] The participating lender initially
    determines whether a borrower satisfies certain threshold requirements regarding the
    amount of the loan balance, monthly payment, and owner occupancy. [Citation.] It then
    implements the HAMP modification process in two stages. [Citation.] In the first stage,
    it provides the borrower with a ‘Trial Period Plan’ (TPP), setting forth the trial payment
    terms, instructs the borrower to sign and return the TPP and other documents, and
    requests the first trial payment. [Citation.] In the second stage, if the borrower has made
    all required trial payments and complied with all of the TPP’s other terms, and if the
    borrower’s representations on which the modification is based remain correct, the lender
    must offer the borrower a permanent loan modification. [Citations.]” (Rufini v.
    CitiMortgage, Inc. (2014) 
    227 Cal. App. 4th 299
    , 305-306, italics omitted (Rufini).)
    Several courts have found that a borrower who has been provided with a HAMP
    TTP may sue the lender under state contract law for failing or refusing to offer a
    permanent loan modification. (See, e.g., 
    Rufini, supra
    , 227 Cal.App.4th at pp. 305-306;
    
    Bushell, supra
    , 220 Cal.App.4th at pp. 922–923; West v. JPMorgan Chase Bank, N.A.
    (2013) 
    214 Cal. App. 4th 780
    , 786-788; Wigod v. Wells Fargo Bank, N.A. (7th Cir. 2012)
    
    673 F.3d 547
    , 556-557.)
    C. White’s Pleadings
    In September 2012, White filed a complaint against Wells Fargo seeking damages
    and equitable relief, including a judicial declaration that White’s loan had been modified
    to reduce permanently her monthly payments to $1,570. The bare-bones complaint
    alluded to two legal theories: (1) White was the beneficiary of a class action settlement
    pursuant to which Wells Fargo agreed to permanently reduce her loan payments; and
    (2) Wells Fargo breached an “implied agreement” to modify the loan.
    In March 2013, White filed a first amended complaint (FAC) instead of opposing
    Wells Fargo’s demurrer. White attempted to allege causes of action for “breach of
    contract/promissory estoppel” and violations of Business and Professions Code
    section 17200 et seq. (the UCL), based on two potential contract theories. First, White
    alleged that her Chapter 13 bankruptcy plan constituted an enforceable contract to
    3
    permanently modify her mortgage loan by reducing her monthly payment obligations to
    $1,570. White’s second theory was that HAMP required Wells Fargo to modify her loan
    permanently because White qualified for HAMP relief and Wells Fargo accepted public
    tax dollars under TARP.
    Wells Fargo filed a demurrer to the FAC and a hearing was set for August 6, 2013.
    The trial court published a tentative ruling sustaining the demurrer which White did not
    contest. In a detailed order, the trial court outlined deficiencies in the FAC and granted
    White the opportunity to amend.
    On August 26, 2013, White filed her second amended complaint (SAC). Although
    the SAC is not a model pleading, we discern from it the following factual allegations
    about White’s loan: Since November 2010, White has made monthly mortgage payments
    in the amount of $1,570 pursuant to a provision in her confirmed Chapter 13 bankruptcy
    plan which White attached to her SAC. White used HAMP guidelines to calculate this
    monthly payment. Wells Fargo did not object to White’s Chapter 13 plan, dispute her
    HAMP calculation, or reject any of her loan payments. Incorporating these factual
    allegations, White attempted to allege causes of action for (1) breach of contract;
    (2) promissory estoppel; and (3) UCL violations.
    The contract theory alleged in the SAC was that Wells Fargo breached a HAMP
    agreement to reduce White’s monthly loan payments to $1570. White alleged that Wells
    Fargo was required to offer her a HAMP TTP because (1) she qualified for a mortgage
    payment reduction under applicable HAMP guidelines and (2) Wells Fargo agreed to
    offer its qualified borrowers a HAMP TTP by accepting TARP money. White further
    alleged that she satisfied her obligations under the TTP by making reduced monthly
    payments for the trial period and, therefore, HAMP required that Wells Fargo
    permanently modify her loan.
    In her second cause of action for promissory estoppel, White alleged that Wells
    Fargo’s actions constituted a “clear, definite and certain” promise that if White made
    reduced payments during the trial period she would receive a permanent loan
    modification. White also alleged that she detrimentally relied on Wells Fargo’s promises
    4
    by foregoing other remedies to save her home. Finally, in her third cause of action,
    White alleged in summary fashion that Wells Fargo’s acts as alleged in the SAC
    constitute unlawful, unfair and/or fraudulent business practices under the UCL.
    C. The Demurrer Ruling
    Wells Fargo filed a demurrer to the SAC, a hearing was set for October 18, 2013,
    and again White did not contest a published tentative ruling. Thus, on October 18, the
    trial court issued a written order sustaining Wells Fargo’s demurrer to the SAC without
    leave to amend (the October 18 order). In its October 18 order, the court found that it had
    sustained demurrers to substantially similar causes of action in the FAC, and that White
    failed to remedy the numerous deficiencies that were outlined in the prior order.
    Nevertheless, the court provided another detailed explanation of material deficiencies in
    each of White’s causes of action.
    Notably, the court found that the first cause of action for breach of contract failed
    to allege facts that would establish the existence of a contract to modify White’s loan.
    White did not attach a written agreement to the SAC, allege facts setting forth the terms
    of a loan modification agreement, or even allege that there was an offer and acceptance of
    terms that were definite and enforceable. In this regard, the court found that the
    Chapter 13 plan that White attached to her SAC was not a contract. The trial court also
    found that White did not allege facts which would establish that she entered into a loan
    modification agreement pursuant to HAMP. Nor did she allege facts to overcome the
    statute of frauds.
    The trial court further explained that the second and third causes of action suffered
    many of the same deficiencies as the first. In addition, the second cause of action for
    promissory estoppel was not supported by factual allegations which would establish the
    elements of a definite promise and detrimental reliance. Further, White’s UCL claim
    failed to specify what unlawful, unfair or deceptive act by Wells Fargo caused her an
    “injury in fact”—a major deficiency highlighted in the order sustaining Wells Fargo’s
    demurrer to the FAC.
    5
    III.
    DISCUSSION
    A. Standard of Review
    “We review an order sustaining a demurrer de novo to determine whether the
    complaint states facts sufficient to constitute a cause of action. [Citations.] We construe
    the complaint ‘liberally . . . with a view to substantial justice between the parties’
    [citation] and treat it ‘ “ ‘as admitting all material facts properly pleaded, but not
    contentions, deductions or conclusions of fact or law. [Citation.] We also consider
    matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a
    reasonable interpretation, reading it as a whole and its parts in their context.” ’
    [Citations.]” (
    Rufini, supra
    , 227 Cal.App.4th at pp. 303-304.)
    “When the court sustains a demurrer without leave to amend, ‘ “we decide
    whether there is a reasonable possibility that the defect can be cured by amendment: if it
    can be, the trial court has abused its discretion and we reverse; if not, there has been no
    abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
    possibility is squarely on the plaintiff.” [Citations.]’ [Citation.] Whether the plaintiff
    will ultimately be able to prove the complaint’s allegations is not relevant. [Citation.]”
    (
    Rufini, supra
    , 227 Cal.App.4th at p. 304.)
    B. Issues on Appeal
    In her Appellant’s Opening Brief (AOB), White’s primary argument is that the
    judgment rests on an erroneous interpretation of HAMP. Taking the position that HAMP
    confers a legally enforceable right to a loan modification, White posits that allegations in
    the SAC which state that she and Wells Fargo were both HAMP participants are
    sufficient to establish that she and Wells Fargo entered into a loan modification
    agreement. Under White’s interpretation of HAMP, neither a written offer nor a signed
    agreement is required to find a legally enforceable loan modification contract.
    In her AOB, White also suggests that the trial court misconstrued the SAC to the
    extent it concluded that the Chapter 13 plan did not constitute a written agreement.
    According to the AOB: “The Court pointed out the only writing was the BK Chapter 13
    6
    plan. However, Appellant doesn’t rely only on the Chapter 13 plan. The allegations
    above that she was accepted into HAMP, paid HAMP payments and never received a
    permanent modification is sufficient. The Chapter 13 plan statement only supplements
    these allegations.”
    In her Appellant’s Reply Brief (ARB), White abandons the material arguments
    advanced in her AOB. She concedes that her “claims do not fit neatly into established
    caselaw [sic],” that she was “not technically given a Trial Payment Plan” under HAMP,
    and that “she does not have a private right of action under HAMP.” Thus, White
    concludes, “[t]o the extent that Appellant alleges that Respondent was obligated to do
    anything ‘under HAMP,’ Appellant withdraws such allegations.”
    Despite her concessions, White insists that she has or can state a cause of action
    against Wells Fargo for refusing to modify her loan permanently. Reasoning that a
    HAMP TTP is not the only path to a permanent loan modification, White argues that her
    SAC alleges facts which support a different cognizable theory for establishing an
    enforceable contract to modify her loan permanently. White’s alternative theory is that
    her Chapter 13 plan “was a valid contract” and that the conduct of the parties during the
    six-month period following the execution of that so-called trial plan agreement, or TPP,
    constituted “an implied-in-fact contract to permanently modify Appellant’s loan.”
    “Points raised for the first time in a reply brief will ordinarily not be considered,
    because such consideration would deprive the respondent of an opportunity to counter the
    argument.” (American Drug Stores, Inc. v. Stroh (1992) 
    10 Cal. App. 4th 1446
    , 1453; see
    also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
    2014) ¶ 9:78, pp. 9-26-9-27 [and cases discussed therein].) Here, White’s belated
    argument that her Chapter 13 plan created a contract between her and Wells Fargo is
    procedurally and factually improper because, as discussed above, she made an express
    representation in her AOB that her Chapter 13 plan was not an agreement. Despite that
    representation, however, Wells Fargo addressed White’s Chapter 13 contract theory in its
    Respondent’s Brief. Furthermore, after the ARB was filed, Wells Fargo filed a letter
    7
    providing this court with additional authority pertinent to White’s Chapter 13 contract
    theory and it also addressed that theory during oral argument before this court.
    Under these circumstances, we will not address the arguments in White’s AOB
    because they have been waived, but we will consider the arguments in White’s ARB.
    C. Analysis
    White contends that if all her pleading allegations pertaining to HAMP are excised
    from the SAC, the remaining allegations regarding the implementation of White’s
    Chapter 13 bankruptcy plan are sufficient to support the causes of action in the SAC.
    1. Breach of Contract
    “To allege a cause of action for breach of contract, a plaintiff must allege, ‘(1) the
    contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
    breach, and (4) the resulting damages to plaintiff.’ [Citation.]” (
    Bushell, supra
    , 220
    Cal.App.4th at p. 921.) Here, the SAC does not allege facts to establish the first element
    of a breach of contract claim under White’s newly resurrected Chapter 13 contract theory.
    “A Chapter 13 reorganization plan is a contract between the debtor and creditors.”
    (In re Richardson (Bankr. S.D. Cal. 1996) 
    192 B.R. 224
    , 228.) However, the terms of
    White’s confirmed plan, a document incorporated by reference into the SAC, undermine
    her new theory that the plan itself constituted a contract to temporarily or permanently
    reduce her monthly payment obligation to $1,570 per month. In that plan, White
    unequivocally promised that she would make monthly mortgage payments in the amount
    of $2,400. The plan does not make any reference to a monthly payment of $1,570.
    In her Chapter 13 plan, White also floated a proposal to make “estimated HAMP”
    payments in some unspecified amount while seeking a loan modification, representing
    that if she did not obtain a modification within six months, she would surrender her
    property. This proposal did not impose any obligation on Wells Fargo, nor did it
    document any promise allegedly made by Wells Fargo.
    White contends that the allegation in her SAC that Wells Fargo did not object to
    her Chapter 13 plan is sufficient to establish acceptance of its terms. However, White
    herself ignores the unambiguous term in that plan which obligated her to make monthly
    8
    payments to Wells Fargo in the amount of $2,400. Perhaps because her own pleading
    allegations establish that she breached this express obligation, White misconstrues the
    proposal in her bankruptcy plan as a contract term obligating Wells Fargo to accept
    monthly loan payments in the amount of $1,570. This interpretation is not only
    manifestly unreasonable, it would create an irreconcilable conflict with an express term
    of the confirmed bankruptcy plan. White cannot carry her burden of alleging facts to
    establish the existence of a loan modification contract by exploiting an ambiguity that she
    created in her own bankruptcy plan. (See In re Fawcett (11th Cir. 1985) 
    758 F.2d 588
    ,
    591 [“the debtor as draftsman of the plan has to pay the price if there is any ambiguity
    about the meaning of the terms of the plan”].)2
    White contends that if the Chapter 13 plan was not itself an agreement, it is
    evidence of an implied-in-fact contract for a loan modification. “An express contract is
    one, the terms of which are stated in words.” (Civ. Code, § 1620.) “An implied contract
    is one, the existence and terms of which are manifested by conduct.” (Civ. Code,
    § 1621.) “ ‘The distinction between express and implied in fact contracts relates only to
    the manifestation of assent; both types are based upon the expressed or apparent intention
    of the parties. “The true implied contract, then, consists of obligations arising from a
    mutual agreement and intent to promise where the agreement and promise have not been
    expressed in words.” [Citations.]’ [Citation.]” (Varni Bros. Corp. v. Wine World, Inc.
    (1995) 
    35 Cal. App. 4th 880
    , 888.)
    Here, White argues the parties manifested their mutual assent to a trial period plan
    that was analogous to a HAMP TTP, i.e., an agreement requiring Wells Fargo to
    permanently modify the loan if White made the reduced payments proposed in her
    Chapter 13 plan for six months. She further contends that she has already pleaded
    2
    Arguably, the proposal in White’s Chapter 13 plan was indicative of a future
    intent to modify the term of the confirmed plan requiring White to make monthly
    payments to Wells Fargo in the amount of $2,400. However, White did not allege that
    that she initiated a proceeding in the bankruptcy court to obtain a modification of her
    confirmed Chapter 13 plan. (See 11 U.S.C. § 1329.)
    9
    sufficient facts to establish an implied in fact TTP by alleging that Wells Fargo (1) did
    not object to her bankruptcy plan, (2) did not explicitly refuse to grant her a loan
    modification, and (3) accepted loan payments which she expressly characterized as
    “HAMP” payments. In making this argument, White posits that it is generally
    understood that “HAMP” means a loan modification program in the same sense that
    “Band-Aid” means a bandage. Thus, by accepting White’s proffered “HAMP” payments,
    Wells Fargo allegedly manifested its agreement to place White in a modification program
    pursuant to the proposal in her Chapter 13 plan.
    The first and most obvious problem with White’s implied contract theory is that
    the contract she seeks to imply is inconsistent with the bankruptcy plan upon which she
    relies. That plan states that White will make monthly mortgage payments in the amount
    of $2,400. However, White has repeatedly acknowledged that she did not make those
    payments. Instead, since November 2010—before the Chapter 13 plan was even
    proposed—White unilaterally began making payments in the amount of $1,570 a month.
    That the SAC characterizes these payments as the estimated HAMP payments referenced
    in the Chapter 13 plan is beside the point. The factual allegations show that these
    payments were not made pursuant to an alleged agreement with Wells Fargo, but
    pursuant to some decision White made on her own in November 2010 and subsequently
    incorporated into her proposal in the May 2011 Chapter 13 plan.
    Another crucial problem with White’s implied contract theory is that there is no
    consideration for an implied promise to give White a hybrid TPP. Regardless how White
    characterizes the reduced loan payments that she has allegedly made since November
    2010, Wells Fargo’s acceptance of those payments cannot constitute consideration for a
    loan modification agreement because White was already obligated to make even greater
    payments under her note and deed of trust. “A statutory or legal obligation to perform an
    act may not constitute consideration for a contract. [Citation.]” (O’Byrne v. Santa
    Monica-UCLA Medical Center (2001) 
    94 Cal. App. 4th 797
    , 808; see also Grant v.
    Aerodraulics Co. (1949) 
    91 Cal. App. 2d 68
    , 75 [“ ‘It is an uniform rule of law that a
    consideration for an agreement is not adequate when it is a mere promise to perform that
    10
    which the promisor is already legally bound to do.’ [Citation.]”]; 1 Witkin, Summary of
    Cal. Law (10th ed. 2005) Contracts, § 218, p. 251 [“doing or promising to do what one is
    already legally bound to do cannot be consideration for a promise”].)
    White contends that her reduced loan payments are consideration for the implied
    contract because Wells Fargo was not otherwise entitled to receive monthly loan
    payments from White. According to this theory, once Wells Fargo filed a notice of
    default, White “was no longer obligated to make monthly payments on her loan” in any
    amount because, at that point, the only way to cure the default was for her to pay “the
    entirety of her arrearages.” White’s premise, which is unsupported by legal authority,
    does not support her conclusion. A debtor’s payment of some amount less than what she
    is contractually obligated to pay (i.e., her breach) cannot be consideration for a
    modification of that contract. Put another way, a debtor’s default does not erase
    contractual obligations assumed in a promissory note and deed of trust. This is
    particularly true when, as here, those contracts provide that if the debtor defaults, the
    lender does not waive rights that it elects not to assert at the time of the default.
    Alternatively, White contends that once she filed for bankruptcy, Wells Fargo lost
    its right to any future loan payments because at that point White acquired the right to
    “surrender” her property. According to this theory, White could have avoided having to
    make any further loan payments by surrendering her property in bankruptcy, but she gave
    up that right by promising to make six months of estimated HAMP payments. Thus,
    White posits that by agreeing to the proposal in the Chapter 13 plan, Wells Fargo
    acquired the right to receive reduced loan payments “to which it would not have
    otherwise been entitled.” Again, White fails to support her assumptions or conclusion
    with pertinent authority. Furthermore, White has never alleged that she was prevented
    from surrendering her property. Indeed, the SAC allegations establish that the surrender
    of White’s property was not a right that White secured by filing bankruptcy, but a
    potential consequence of her own breach of the underlying loan agreement, a
    consequence she has so far avoided by filing for bankruptcy and then by pursuing this
    lawsuit.
    11
    A third independent problem with White’s implied contract theory is that it
    violates the statute of frauds. Contrary to White’s unsupported contention on appeal, a
    mortgage loan modification agreement is subject to the statute of frauds and must
    therefore be evidenced by a writing. “An agreement for the sale of real property or an
    interest in real property comes within the statute of frauds. [Citation.] A mortgage or
    deed of trust also comes within the statute of frauds.” (Secrest v. Security National
    Mortgage Loan Trust 2002-2 (2008) 
    167 Cal. App. 4th 544
    , 552.) And “[a]n agreement to
    modify a contract that is subject to the statute of frauds is also subject to the statute of
    frauds. [Citations.]” (Id. at p. 553; see also Dooms v. Federal Home Loan Mortgage
    Corp. (E.D. Cal. 2011) 
    2011 U.S. Dist. LEXIS 38550
    at *17 [“ ‘an alleged offer for a
    loan modification is subject to the statute of frauds since it seeks to modify a deed of
    trust, which is subject to the statute of frauds’ ”].)
    Finally, White contends the trial court abused its discretion by rejecting her
    request to amend the SAC to clarify the circumstances surrounding the Chapter 13
    “agreement.” Specifically, White argues that she can “establish” her implied contract
    claim by amending her pleading to allege that Wells Fargo initially objected to her
    Chapter 13 plan but subsequently withdrew that objection and, at around the time of the
    withdrawal of that objection and the confirmation of the plan, White’s bankruptcy
    attorney told her that “Wells Fargo had agreed that the said $1,570 payments were going
    to be received by Wells Fargo as trial plan payments under the HAMP Program.”
    White argues that this proposed amendment will clarify “that there was a meeting
    of the minds with respect to what the $1,570.00 payments constituted, how they were to
    be viewed, and what two scenarios could result after six months.” This proposed
    amendment appears to introduce the possibility of an oral promise to provide White with
    a hybrid TPP which (1) violated the statute of frauds; and (2) was not supported by
    consideration. In other words, this new theory suffers from the same deficiencies as the
    theories White alleged in three prior versions of her complaint. Thus, White has failed to
    establish that the trial court abused its discretion by denying her leave to amend her
    breach of contract cause of action.
    12
    2. Promissory Estoppel
    “ ‘Promissory estoppel is “a doctrine which employs equitable principles to satisfy
    the requirement that consideration must be given in exchange for the promise sought to
    be enforced.” [Citation.]’ [Citation.] Because promissory estoppel is an equitable
    doctrine to allow enforcement of a promise that would otherwise be unenforceable, courts
    are given wide discretion in its application. [Citations.]” (US Ecology, Inc. v. State of
    California (2005) 
    129 Cal. App. 4th 887
    , 901-902.) The doctrine binds a promisor
    “ ‘when he should reasonably expect a substantial change of position, either by act or
    forbearance, in reliance on his promise, if injustice can be avoided only by its
    enforcement.’ [Citation.] ‘ “The vital principle is that he who by his language or conduct
    leads another to do what he would not otherwise have done shall not subject such person
    to loss or injury by disappointing the expectations upon which he acted.” ’ [Citation.]
    ‘ “In such a case, although no consideration or benefit accrues to the person making the
    promise, he is the author or promoter of the very condition of affairs which stands in his
    way; and when this plainly appears, it is most equitable that the court should say that they
    shall so stand. [Citations.]” ’ [Citation.]” (Garcia v. World Savings, FSB (2010) 
    183 Cal. App. 4th 1031
    , 1041.)
    White contends that “when taken as a whole, the allegations in her SAC state
    sufficient facts to constitute a cause of action for Promissory Estoppel, even if she is not
    ultimately able to prove the breach of a proper contract . . . .” We disagree.
    “The elements of promissory estoppel are (1) a clear and unambiguous promise by
    the promisor, and (2) reasonable, foreseeable and detrimental reliance by the promisee.
    [Citation.]” (
    Bushell, supra
    , 220 Cal.App.4th at p. 929.) The SAC does not contain any
    allegations of fact that would establish Wells Fargo made a clear and unambiguous
    promise to give White a hybrid TPP, or a permanent loan modification. The bare
    allegation that Wells Fargo made “clear, definite and certain promises” is not a properly
    pleaded material fact but simply a legal conclusion which we disregard on appeal.
    (
    Rufini, supra
    , 227 Cal.App.4th at pp. 303-304.) Similarly, SAC allegations to the effect
    that White reasonably and detrimentally relied on some unspecified promise by making
    13
    TPP payments instead of pursuing other opportunities to cure her default are conclusory
    contentions, not allegations of fact.
    White mistakenly relies on Aceves v. U.S. Bank N.A. (2011) 
    192 Cal. App. 4th 218
    (Aceves). In that case, the plaintiff homeowner filed for Chapter 7 bankruptcy because
    she could not afford to make her mortgage payments. When she contacted her lender,
    U.S. Bank, plaintiff was told “that, once her loan was out of bankruptcy, the bank ‘would
    work with her on a mortgage reinstatement and loan modification.’ ” (Id. at p. 223.) The
    plaintiff intended to convert her case to a Chapter 13 proceeding and, with financial
    assistance from her husband, cure her default and reinstate her loan. (Id. at pp. 221, 223.)
    However, U.S. Bank filed a motion to lift the bankruptcy stay. Then, the bank’s agent
    requested permission from plaintiff’s counsel to contact plaintiff directly in order to
    “ ‘explore Loss Mitigation possibilities.’ ” In response, plaintiff contacted the agent and
    was told that nobody could speak to her until the automatic stay was lifted. (Id. at
    p. 223.) Relying on U.S Bank’s promise to work with her to reinstate and modify her
    loan, plaintiff did not convert her case to a Chapter 13 proceeding or oppose the motion
    to lift the bankruptcy stay. Ultimately, U.S. Bank foreclosed on plaintiff’s property. (Id.
    at pp. 223-224.)
    The Aceves court found that the plaintiff stated a cause of action for promissory
    estoppel by alleging the facts summarized above. 
    (Aceves, supra
    , 198 Cal.App.4th at
    p. 226.) U.S. Bank’s agreement to “ ‘work with’ ” the plaintiff “ ‘on a mortgage
    reinstatement and loan modification’ if she no longer pursued relief in the bankruptcy
    court” was “a clear and unambiguous promise.” (Ibid.) Furthermore, the plaintiff
    reasonably and foreseeably relied on U.S. Bank’s promise, because the opportunity to
    work with the bank to modify and reinstate the loan was relief that would not have been
    available if plaintiff had converted her case to a Chapter 13 proceeding. As the court
    explained, a “bankruptcy court could have reinstated the loan—permitted Aceves to cure
    the default, pay the arrearages, and resume regular loan payments—but it could not have
    modified the terms of the loan, for example, by reducing the amount of the regular
    monthly payments or extending the life of the loan. [Citations.]” (Id. at p. 227, italics
    14
    omitted.) Thus, the court concluded that “[b]y promising to work with Aceves to modify
    the loan in addition to reinstating it, U.S. Bank presented Aceves with a compelling
    reason to opt for negotiations with the bank instead of seeking bankruptcy relief.
    [Citation.]” (Id. at p. 228, italics omitted.)
    White contends that the “similarities between Aceves and the instant action are
    striking.” We disagree. The Aceves plaintiff alleged that her bank made an explicit
    representation that it would work with her to modify and reinstate her loan. Here by
    contrast, White failed to allege facts that would establish a clear promise; she appears to
    argue that Wells Fargo’s promise can be inferred from a proposal that she herself made.
    As noted earlier, White unilaterally decided to reduce her monthly payments to Wells
    Fargo even before filing her Chapter 13 proceeding. In addition, Wells Fargo did not
    draft the Chapter 13 plan or make the proposal contained in it. Furthermore, although it
    accepted reduced payments, the underlying debt existed independently of anything White
    said or did in connection with her bankruptcy case. Just as White cannot unilaterally
    create a loan modification contract, she cannot use her own proposal to establish that
    Wells Fargo made a promise to modify her loan.
    Furthermore, in stark contrast to the Aceves plaintiff, White did not allege any
    facts to show detrimental or foreseeable reliance. Even if the Chapter 13 proposal could
    be construed as evidence of some promise by Wells Fargo, that proposal did not state or
    imply that Wells Fargo would give White a permanent loan if she made six months of
    reduced loan payments. Indeed, we find no facts in the SAC, the appellate record or the
    parties’ briefs which could conceivably support a finding that White reasonably or
    foreseeably construed Wells Fargo’s acceptance of reduced payments she made pursuant
    to her Chapter 13 plan proposal as a promise to modify her loan permanently.
    White contends that if Wells Fargo had accepted only six months of payments as
    proposed in the Chapter 13 plan, but then rejected the seventh, “then Appellant would
    likely have no claims against Respondent.” However, she argues, because the bank
    “continued to accept those payments for three and a half years,” she has pleaded facts to
    establish detrimental reliance and resultant damages. This theme, which runs throughout
    15
    White’s appeal, misconstrues the few facts that White alleged or incorporated into her
    SAC. As noted, White alleged that she began making reduced loan payments in
    November 2010, long before she submitted her Chapter 13 plan. Second, the Chapter 13
    plan proposed that White would make reduced loan payments while she sought a loan
    modification and that if she did not receive such a modification in six months time, she
    would surrender her property. Nowhere did White allege that she withheld surrendering
    the property because of anything Wells Fargo said, nor did she allege or even suggest that
    she was prevented from surrendering her property while, on her own initiative, she
    continued to send reduced monthly payments to Wells Fargo.
    Finally, White’s theory of reliance rests on the illogical premise that the
    reasonableness of her expectation of a loan modification directly correlates to the number
    of reduced loan payments that Wells Fargo accepts. If anything, the opposite is true. At
    least by the time White filed this lawsuit she had to know that Wells Fargo did not intend
    to permanently modify her monthly payment obligations.
    3. The UCL
    “The purpose of the UCL ‘is to protect both consumers and competitors by
    promoting fair competition in commercial markets for goods and services. [Citation.]’
    [Citations.] The UCL ‘defines “unfair competition” to mean and include “any unlawful,
    unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading
    advertising and any act prohibited by [the false advertising law ([Bus. & Prof. Code,]
    § 17500 et seq.)].” [Citation.]’ [Citation.] Whether a plaintiff has standing to sue under
    the UCL and whether an alleged business practice violated the UCL both may be
    resolved at the demurrer stage in appropriate cases. [Citations.]” (Drum v. San
    Fernando Valley Bar Assn. (2010) 
    182 Cal. App. 4th 247
    , 252 (Drum).)
    “[A] private person has standing to sue under the UCL only if that person has
    suffered injury and lost money or property ‘as a result of such unfair competition.’
    [Citation.]” (Daro v. Superior Court (2007) 
    151 Cal. App. 4th 1079
    , 1098, italics omitted
    (Daro).) Thus, in order to state a claim under the UCL White must plead facts which
    “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in
    16
    fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e.,
    caused by, the unfair business practice or false advertising that is the gravamen of the
    claim.” (Kwikset Corp. v. Superior Court (2011) 
    51 Cal. 4th 310
    , 322 (Kwikset); see also
    Jenkins v. JPMorgan Chase Bank, N.A. (2013) 
    216 Cal. App. 4th 497
    , 521-522 (Jenkins).)
    White claims that she has UCL standing because Wells Fargo caused her to make
    close to four years of estimated HAMP payments that Wells Fargo was not otherwise
    entitled to receive. However, the reduced loan payments that White unilaterally had been
    making since November 2010 do not qualify as an economic injury because, as discussed
    above, White was legally obligated to make payments of even more than that amount
    under the terms of her loan. Furthermore, White has not alleged or suggested facts to
    show that she made the reduced loan payments as a result of some unlawful business act
    on the part of Wells Fargo. In this regard, the SAC allegations establish the following
    facts: In November 2010, White made a unilateral decision to start making a reduced
    loan payment; in April 2011, White submitted a bankruptcy plan in which she proposed
    to make estimated HAMP payments for six months while she pursued a loan
    modification; the six-month period proposed in the Chapter 13 plan came and went but
    Wells Fargo did not permanently modify the loan.
    These pleaded facts show that White made unilateral decisions to reduce her
    monthly loan payments and to continue to make that reduced monthly loan payment for
    several years notwithstanding the fact that Wells Fargo never offered to modify her loan,
    either temporarily or permanently. In other words, White has not identified any allegedly
    unfair, unlawful or fraudulent business practice by Wells Fargo which caused her to
    sustain an injury in fact. By the same token, she has not alleged facts that would
    establish a substantive violation under any prong of the UCL.
    “The UCL’s unlawful prong ‘ “ ‘borrows’ violations of other laws and treats them
    as unlawful practices” that the unfair competition law makes independently actionable.
    [Citation.]’ [Citation.]” 
    (Jenkins, supra
    , 
    216 Cal. App. 4th 497
    at p. 520.) Furthermore,
    even if a business practice is not unlawful, it may violate the UCL if it is deemed “unfair”
    as that term has been defined by the pertinent case law. (See Cel-Tech Communications
    17
    v. Los Angeles Cellular Telephone Co. (1999) 
    20 Cal. 4th 163
    .) And, a business practice
    is fraudulent within the meaning of the UCL if it is likely to deceive or mislead the
    consumer. (In re Tobacco II Cases (2009) 
    46 Cal. 4th 298
    , 312; Boschma v. Home Loan
    Center, Inc. (2011) 
    198 Cal. App. 4th 230
    , 252-253.)
    In the present case, the SAC cause of action for violations of the UCL is supported
    by three allegations. First, White incorporates prior allegations by reference; second she
    alleges on information and belief that Wells Fargo’s acts constitute an unlawful, unfair
    and/or fraudulent business practice; and third she alleges that Wells Fargo’s unspecified
    acts caused her unspecified damage and injury. These allegations provide no factual
    basis for establishing a UCL violation.
    On appeal, White makes the tautological assertion that her conclusory allegations
    are sufficient to withstand a demurrer because all UCL claims depend on the resolution of
    issues of fact. First, we agree that an UCL claim can be fact intensive which is why the
    failure here to allege concrete facts identifying the alleged violation is such a glaring
    deficiency. Second, to withstand a demurrer, a pleading must allege material facts that
    establish the elements of the claim. On appeal, we consider only material allegations of
    fact, not conclusions of fact or law. (Young v. Gannon (2002) 
    97 Cal. App. 4th 209
    , 220.)
    The SAC simply does not contains material factual allegations sufficient to state a UCL
    cause of action.
    IV.
    DISPOSITION
    The judgment is affirmed.
    18
    _________________________
    RUVOLO, P. J.
    We concur:
    _________________________
    RIVERA, J.
    _________________________
    STREETER, J.
    19