Filed 10/8/13 Cooper v. HSBC Bank CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
BARBARA COOPER et al., B246455
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC466657)
v.
HSBC BANK USA, as Trustee, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James R. Dunn, Judge. Affirmed.
Barbara Cooper and Ellen Cooper, in pro. per., for Plaintiffs and Appellants.
Soloman, Grindle, Silveramn & Wintringer, Christopher A. Lidstad and Holly J.
Nolan for Defendant and Respondent.
__________________________
Barbara and Ellen Cooper (Appellants) seek to unwind the foreclosure of their
home by HSBC Bank USA as Trustee for MLCC 2007-3 (HSBC). The trial court
sustained HSBC‟s demurrer without leave to amend. We conclude Appellants lack
standing to assert their claims against HSBC. The judgment is affirmed.
FACTS
In 2005, Barbara,1 and her husband, William Cooper, both in their eighties, held a
$237,000 mortgage on their home in Los Angeles which they sought to refinance. They
submitted an application to Jimmy Pereda, who informed them that they did not qualify
for a loan due to their low credit score. Pereda then convinced the Coopers to transfer
title of the home to his name. A grant deed was recorded transferring title to Pereda on
June 23, 2005. He obtained a loan secured by the Coopers‟ home totaling $460,000 in
2007, thus withdrawing over $200,000 in equity from the home after paying off the
Coopers‟ original mortgage. That loan was assigned to HSBC on February 3, 2009.
In 2007, the Coopers sued Pereda and his company for fraud. Pereda‟s company
had declared bankruptcy and did not participate in the litigation. Pereda entered into a
global settlement with the Coopers. The settlement terms were entered into the record by
the trial court. It entitled the Coopers to a sum of $75,000, with $25,000 to be paid by
December 29, 2008, and twice-monthly payments of $1,388 beginning on January 15,
2009, until paid in full. If Pereda defaulted on the settlement, the Coopers were free to
seek an ex parte judgment of $250,000 against him, less any payments made. Pereda also
agreed to shortsale the home back to the Coopers for $360,000 -- subject to bank
authorization. William died around the time of the settlement.
A notice of default on the home was issued on December 5, 2008. HSBC
executed a nonjudicial foreclosure on the home on October 26, 2009. HSBC then filed
an unlawful detainer action in Santa Monica Superior Court against Barbara and her
daughter, Ellen, on December 21, 2010. That matter is currently on appeal. Meanwhile,
1
For convenience, we will refer to the Coopers by their first names.
2
Pereda defaulted on the settlement and a money judgment was entered on November 24,
2009, against him for $226,829.66.
Appellants brought suit in pro. per. against Barbara‟s former attorney, Paul
Gianinni,2 and HSBC on August 1, 2011, alleging claims for legal malpractice,
negligence, fraud, elder financial abuse and breach of fiduciary duty. The bulk of the
allegations described the fraud committed by Pereda and the malpractice committed by
Gianinni. In this initial complaint, Appellants alleged that Pereda forged the deed of trust
transferring title to his name and neither Barbara nor William ever consented to transfer
title to Pereda. They also alleged that Gianinni coerced Barbara into the settlement at a
time when she was emotionally vulnerable after William‟s death. Further, that Gianinni
then misappropriated the funds. The complaint also alleged that as part of the global
settlement with Pereda, Appellants understood that they could remain in possession of the
property without payment of rent until it was sold. The complaint further alleged HSBC
nevertheless began unlawful detainer based on an expired lease and fraudulently sought
to harass Appellants for back rent.
A first amended complaint was filed before HSBC‟s demurrer to the initial
complaint could be heard. This complaint alleged nine causes of action and focused on
HSBC‟s purportedly wrongful actions. In particular, the SAC alleged that HSBC
“robosigned” the trustee deed upon sale as well as committed other irregularities
associated with the foreclosure proceeding. HSBC again demurred and the trial court
sustained the demurrer with leave to amend. Among other things, the trial court found
that Barbara and Ellen lacked standing to sue to set aside the trustee‟s sale and to void the
assignment of the deed of trust because they were not the borrowers under the subject
deed of trust.
2
Gianinni failed to respond to the pleadings and Appellants filed a request for entry
of default on the first amended complaint on August 14, 2012. The clerk rejected the
request for entry of default on the ground that the second amended complaint was filed
the same day and thus, default could not be entered on the first amended complaint.
The record does not contain any requests for entry of default on the second amended
complaint.
3
The second amended complaint (SAC) contained even fewer factual allegations.
In the SAC, Barbara and Ellen alleged causes of action to set aside the trustee‟s sale, to
void or cancel assignment of the deed of trust, for fraud, to quiet title and for slander of
title. They alleged that the global settlement reached in the Pereda action was a contract
of adhesion. Also, Pereda entered into the settlement with no intention of fulfilling its
terms, particularly the sale of the home back to Barbara. In support of this theory,
Appellants alleged that HSBC‟s notice of default and election to sell was issued on
December 5, 2008, ten days before the settlement was reached. Thus, Pereda knew he
could not short sale the property back to Barbara as promised under the settlement.
“Plaintiff Barbara Cooper understands that she is no longer bound by the Settlement
Agreement due to [the] fraudulent[] nature of the contract.” Appellants also alleged
wrongdoing by HSBC. In particular, Appellants alleged the transfer deed was not signed
by the person with authority to do so and HSBC did not possess the promissory note.
The trial court sustained HSBC‟s demurrer to the second amended complaint without
leave to amend “based on the matters set forth in the moving papers.” Barbara and Ellen
timely appealed.
DISCUSSION
Appellants portray this as an elder abuse case but did not actually allege an elder
abuse cause of action in the SAC. While an elder abuse claim was alleged in the initial
complaint, it was dropped from the first amended complaint and the SAC. This matter
instead involves a third party‟s attempt to unwind a presumptively valid foreclosure.
We find Appellants lack standing to challenge the foreclosure proceedings.
In general terms, in order to have standing, the plaintiff must be able to allege
injury – that is, some “„invasion of the plaintiff‟s legally protected interested.‟
[Citations.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175; see Code
Civ. Proc., § 367 [“Every action must be prosecuted in the name of the real party in
interest, except as otherwise provided by statute”].) Neither Ellen nor Barbara hold a
“legally protected interest” in the home.
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Ellen lacks standing because she did not hold title to the home when it was
transferred to Pereda. That she was a party in HSBC‟s unlawful detainer action merely
shows that she was a tenant in the home, not a homeowner. Neither was she a party to
the action against Pereda. The trial court properly sustained the demurrer as to Ellen on
the grounds she lacked standing.
Although Barbara did at one time hold title to the home, she relinquished any
claim to that interest when she and William settled their claims against Pereda. Under the
terms of the settlement, Pereda agreed to pay Barbara and William $75,000. He also
agreed to attempt to sell the home back to Barbara under a short sale arrangement subject
to the bank‟s approval. If he failed to pay the $75,000 settlement in full, Barbara was
entitled to receive an ex parte money judgment in the amount of $250,000, less any
amount received by Pereda. By entering into this settlement, Barbara acknowledged that
she no longer held title to the home. She therefore no longer has a “legally protected
interest” in the home. Even if Appellants are successful in setting aside the foreclosure,
they have provided no method by which title would automatically revert back to Barbara.
Appellants attempt to avoid the consequences of the settlement by alleging it is
void because Pereda never intended to fulfill the terms of the settlement. They also
allege that the settlement was a contract of adhesion imposed upon Barbara by her former
attorney at a stressful time. Even if these allegations are true, they are insufficient to
unwind a valid trustee sale because the remedy for these alleged wrongs lies with Pereda
and Gianinni, not HSBC. Indeed, Appellants have shown they are aware of their rights
against Pereda and Gianinni: they have sought and received a money judgment of
$226,829.66 against Pereda and have sued Gianinni for malpractice.
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DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.
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