Vissuet v. Bank of America CA4/1

Filed 6/19/14 Vissuet v. Bank of America CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FRIDA VISSUET, D063524

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2011-00096197-
CU-OR-CTL)
BANK OF AMERICA, N.A.

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego, William S. Dato,

Judge. Affirmed.

Arizmendi Law Firm and Ruben F. Arizmendi for Plaintiff and Appellant.

Bryan Cave and Stuart Winston Price, Brendon K. Barton for Defendant and

Respondent.

Plaintiff and Appellant Frida Vissuet appeals from a judgment on the pleadings in

favor of defendant and respondent Bank of America, N.A. (Bank) on Vissuet's first
amended complaint asserting causes of action arising from her attempts to modify her

real estate loan and the ensuing foreclosure of her home. Vissuet contends the trial court

was biased and erred by granting judgment on the pleadings in Bank's favor and by

denying her request for leave to file a second amended complaint. Vissuet asks us to

review her second amended complaint de novo, presumably to assess whether she states

viable causes of action. Because Vissuet has not met her appellate burden to overcome

the presumption of correctness or demonstrate reversible error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND1

In August 2011, Vissuet filed a complaint against Bank setting forth causes of

action for "damages for intentional misrepresentation of fact," fraud and deceit, negligent

misrepresentation, breach of the covenant of good faith and fair dealing, violation of

Civil Code section 1572, and declaratory relief. In part, Vissuet alleged that in August

2007 she had obtained a loan with Countrywide Home Loans, Inc. in the amount of

$540,000 for property located on Corral Canyon Road in Bonita, California, which loan

was eventually assigned to BAC Home Loans Servicing, L.P. She alleged that in

1 On review of an order granting judgment on the pleadings, the appellate court
usually treats as true the material facts alleged in the operative complaint and facts that
may be implied or inferred from those expressly alleged. (Haight, Brown & Bonesteel v.
Superior Court (1991) 234 Cal.App.3d 963, 968.) But Vissuet does not in her factual
statement summarize the material allegations of her operative pleading. Rather, she sets
out allegations that, according to her, are "identical to those brought by the Nevada
Attorney General against Bank of America, BAC Home Loans Servicing, and Recontrust,
in which Attorney General Catherine Cortez Masto alleges that these entities engaged in
unlawful and deceptive practices by misrepresenting to homeowners that they had
authority to foreclose despite the fact that there were fatal deficiencies in transfers to the
securitization Trusts." She asserts that the "essence of the foregoing was alleged in
various stages of the complaint in the Superior Court below."
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February 2010, a notice of default was filed with a past due amount of over $42,000.

Vissuet alleged that in October 2009, she retained an attorney to pursue a loan

modification. In her complaint, Vissuet set out numerous conversations she had with

Bank personnel between February 2010 and August 2011 regarding her eligibility for

loan modification and postponement of the trustee's sale. At about the same time she

filed her original complaint, Vissuet applied ex parte for a temporary restraining order

enjoining Bank from conducting a trustee's sale.

In September 2011, Vissuet filed a first amended complaint including the same

causes of action and adding causes of action for quiet title, negligent infliction of

emotional distress, promissory estoppel and conspiracy. Vissuet alleged that Bank

proceeded with the trustee's sale of her property on August 12, 2011, without notifying

her of certain alternatives to foreclosure. She further alleged Bank sold the property

below fair market value in order to "complicate" her lawsuit.

On September 30, 2011, Vissuet's counsel sought ex parte to consolidate Vissuet's

action with an unlawful detainer action filed on August 18, 2011, by the purchaser of the

property, Property Sales II, LLC. Bank answered the complaint in October 2011.

In November 2011, Vissuet applied ex parte to file an amended complaint. She

asked for leave to add Property Sales II, LLC, and its principal, Joe Lyden, who

assertedly purchased the property at the foreclosure sale and initiated the unlawful

detainer proceeding. Vissuet also sought leave to add causes of action to set aside the

trustee sale, cancel the trust deed, and enjoin the unlawful detainer action. The trial court

ordered Vissuet to file a noticed motion regarding that proposed amendment.

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 Vissuet again moved to consolidate her action against Bank with the unlawful

detainer action. She unsuccessfully attempted to shorten time on consolidation motions

again in January and March 2012 and eventually filed her motion in April 2012.

Bank moved for judgment on the pleadings. In part, it argued Vissuet lacked

standing because she had not tendered the amount of the secured debt; Vissuet did not

meet the heightened pleading standard to allege fraud and her complaint on that point set

forth only argumentative or conclusory allegations; Vissuet's claim of promissory

estoppel was barred by the statute of frauds; Vissuet did not tie her allegations as to

breach of the covenant of good faith and fair dealing to an express term of her promissory

note; quiet title was not available because Vissuet's first amended complaint was

unverified and she had not tendered payment of her debt; and Vissuet could not maintain

a cause of action for negligent infliction of emotional distress because Bank did not owe

Vissuet a duty of care, its actions in pursuing its rights under the trust deed were not

extreme or outrageous, and Vissuet did not suffer extreme emotional distress. Bank

submitted and sought judicial notice of an August 7, 2007 deed of trust; the February 5,

2010 notice of default; an assignment of the trust deed recorded on March 3, 2010;

notices of trustee's sale recorded on May 12, 2010, and May 18, 2011; a trustee's deed

upon sale recorded on August 26, 2011; a docket of Vissuet's Chapter 13 bankruptcy; and

a summary of schedules filed with the bankruptcy court.

Vissuet purported to oppose the motion not by addressing Bank's arguments on the

merits, but by lodging a proposed second amended complaint, the contents of which she

claimed "satisfied" all of Bank's points. The second amended complaint purported to

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allege ten additional causes of action (causes of action 11 through 20) for "setting aside

trustee sale," cancellation of the trust deed, negligence, quasi-contract, violation of

section 2605 of title 12 of the United States Code, violation of section 1692 et seq. of title

15 of the United States Code, violation of the Unfair Competition Law (UCL; Bus. &

Prof. Code, § 17200 et seq.), accounting, and "extortion" in violation of section

1951(b)(2) of title 18 of the United States Code.

In reply, Bank argued Vissuet's failure to oppose its motion was a concession that

the claims of the first amended complaint lacked merit. It asked the court to grant its

motion without giving Vissuet leave to file the second amended complaint, arguing the

pleading did not cure the deficiencies raised by Bank's motion. Bank argued Vissuet's

proposed amendments did not add any new facts so as to cure the first ten causes of

action, and they did not change the legal effect of the causes of action raised in the first

amended complaint. It further argued Vissuet's proposed second amended complaint was

procedurally defective because she had not obtained the court's permission to file it.

Bank finally argued Vissuet's proposed amendments were futile, her request for leave to

amend was dilatory, and it would suffer prejudice if the court granted the request.

Judicially noticing all of Bank's exhibits, the court granted judgment on the

pleadings in Bank's favor, ruling Vissuet's failure to oppose the motion constituted a

concession of the first amended complaint's defects. It continued the hearing on the

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matter, however, to determine whether Vissuet should be granted leave to amend, and

ordered her to file briefing on that question.2

About a month later, the court allowed Vissuet to substitute her proposed second

amended complaint with a new second amended complaint. The verified substituted

second amended complaint named both Bank and Property Sales II, LLC, as well as all

persons claiming any legal or equitable right in the property, and set out causes of action

for fraud-concealment (first cause of action), breach of the covenant of good faith and

fair dealing (second cause of action), violation of the UCL (third and fourth causes of

action), quiet title (fifth cause of action), and wrongful foreclosure (sixth cause of action).

Vissuet submitted briefing as to why the complaint was sufficient to state those causes of

action. Bank filed papers in reply.

The trial court denied Vissuet leave to amend her first amended complaint and

granted judgment on the pleadings without leave to amend. The court thereafter entered

2 The court's ruling states: "Concerning plaintiff's apparent request for leave to
amend, she has offered no argument as to how the proposed amendments cure the
deficiencies of the [first amended complaint]. So that the Court can meaningfully assess
whether leave to amend should be granted, the hearing is continued to allow plaintiff to
file an opposition that specifically addresses defendant's arguments and explains why the
amended causes of action state viable claims. Since plaintiff has not moved to amend her
claim under Code of Civil Procedure section 473, however, she may not add new causes
of action." Though the court had stated Vissuet was not permitted to add new causes of
action, it later explained that its ruling was unclear or inartful and suggested it would be
more beneficial for Bank to assess the issues in the trial court as opposed for the first time
on appeal.
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a judgment of dismissal with prejudice in Bank's favor. Vissuet filed this appeal.3

DISCUSSION

I. Principles of Appellate Review

Vissuet's appellate briefing compels us to begin by reviewing settled principles of

appellate review. On appeal, a judgment or an order is presumed to be correct, and

Vissuet as the party challenging the judgment or the order must affirmatively show error.

(E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; In re Marriage of

Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557,

564.) To meet this burden, Vissuet must provide cogent legal argument in support of her

claims of error with citation to legal authority, as well as supporting references to the

record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Sims v. Department of Corrections

& Rehabilitation (2013) 216 Cal.App.4th 1059, 1081; In re Marriage of Falcone & Fyke

(2008) 164 Cal.App.4th 814, 830; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000,

1003 & fn. 2; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) If she does not do

so, we may treat her point as waived or abandoned. (In re Sade C. (1996) 13 Cal.4th 952,

994; People v. Stanley (1995) 10 Cal.4th 764, 793; Sims, at p. 1081; Marriage of

3 Vissuet's opening brief states she appeals from a judgment entered on January 14,
2013. Her notice of appeal states she appeals from a judgment entered after an order
granting a summary judgment motion. However, Vissuet identified the judgment
appealed from as being filed on December 26, 2012, which is the date the trial court
entered its judgment of dismissal with prejudice. Because it is reasonably clear what
order Vissuet is appealing, and Bank has not raised any prejudice, we deem her notice of
appeal as being from the December 26, 2012 judgment on the pleadings. (See Cal. Rules
of Court, rule 8.100(a)(2); Walker v. Los Angeles County Metropolitan Transit Authority
(2005) 35 Cal.4th 15, 20.)
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Falcone, at p. 830; Berger, at pp. 1119-1120; Pringle, at p. 1003.) "An appellate court is

not required to consider alleged errors where the appellant merely complains of them

without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d

866, 873.) "One cannot simply say the court erred, and leave it up to the appellate court

to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Furthermore, " '[i]t is fundamental that a reviewing court will ordinarily not

consider claims made for the first time on appeal which could have been but were not

presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not

presented and litigated in the trial court. Generally, issues raised for the first time on

appeal which were not litigated in the trial court are waived.' " (Newton v. Clemons

(2003) 110 Cal.App.4th 1, 11, fns. omitted; see also Brokopp v. Ford Motor Co. (1977)

71 Cal.App.3d 841, 862 [an appellate court will not consider matters outside the record

on appeal].) "Appellate courts are loath to reverse a judgment on grounds that the

opposing party did not have an opportunity to argue and the trial court did not have an

opportunity to consider. [Citation.] In our adversarial system, each party has the

obligation to raise any issue or infirmity that might subject the ensuing judgment to

attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable

expense, but also wreaks havoc on a judicial system too burdened to retry cases on

theories that could have been raised earlier." (JRS Products, Inc. v. Matsushita Electric

Corp. of America (2004) 115 Cal.App.4th 168, 178.)

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 II. Vissuet's Claims of Bias by the Trial Court

Vissuet begins the argument section of her opening brief by listing claimed

instances of the trial court's bias in Bank's favor. Raising these bias arguments for the

first time on appeal, she argues the court demonstrated bias and abused its discretion

when it denied her motion for a temporary restraining order to stop the foreclosure of the

property, and that she established good cause for that relief by her verified complaint,

which showed Bank's "dual tracking" in violation of the California Homeowner Bill of

Rights.4 She maintains the court was biased when it denied her motion to consolidate the

unlawful detainer action with the present action against Bank. Vissuet further contends

the court exhibited bias by failing to allow her to file an amended complaint. Finally,

Vissuet argues the court exhibited bias and erred by granting Bank's motion for judgment

on the pleadings on her first amended complaint.

These contentions fail for several reasons. A question of trial court bias must be

determined from matters appearing in the reporter's transcript, as statements of counsel in

briefs are not part of the record on appeal. (Gantner v. Gantner (1952) 39 Cal.2d 272,

278.) None of Vissuet's arguments are supported by any citation to the reporter's

transcript, or the record at all, for that matter. For this reason, she has forfeited the

contentions of bias.

4 See Lueras v. BAC Home Loans Servicing L.P. (2013) 221 Cal.App.4th 49, 86, fn.
14 [setting out background of the California Homeowner Bill of Rights]. Dual tracking
refers to a tactic by which a bank continues to pursue foreclosure at the same time the
borrower in default seeks a loan modification. (Ibid.; Jolley v. Chase Home Finance,
LLC (2013) 213 Cal.App.4th 872, 904.) Vissuet does not say where in her various
pleadings she alleged Bank engaged in such a practice.
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 Additionally, Vissuet's arguments do not present facts establishing that bias arose

from some source collateral to the proceeding. Instead, the arguments demonstrate that

Vissuet is seeking indirectly to challenge the legal and evidentiary rulings of the court by

characterizing her contentions as bias. A trial court's rulings against a litigant, even if

continuously erroneous, do not establish bias or prejudice. (Dietrich v. Litton Industries,

Inc. (1970) 12 Cal.App.3d 704, 719; accord, People v. Fuiava (2012) 53 Cal.4th 672,

732.)

Vissuet's challenges to the merits of the trial court's rulings are unavailing in any

event, as we shall explain. With regard to the court's denial of Vissuet's request for a

temporary restraining order, Vissuet cannot raise error in connection with that ruling.

Such an order is separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(6) [order

granting or refusing to grant an injunction is directly appealable]; Ragland v. U.S. Bank

Nat. Assn. (2012) 209 Cal.App.4th 182, 208.) Because Vissuet did not file a notice of

appeal from the court's order denying her request for a temporary restraining order, she

cannot challenge the merits of that order.

As for Vissuet's requests to consolidate the actions, such orders are reviewable

from the final judgment and are not required to be expressly identified in her notice of

appeal, contrary to Bank's assertion. (State Farm Mut. Auto Ins. Co. v. Superior Court

(1956) 47 Cal.2d 428, 432.) We review the court's denial of consolidation for abuse of

discretion; the decision will not be disturbed on appeal absent a clear showing of such

abuse. (See Code Civ. Proc., § 1048; Todd-Stenberg v. Dalkon Shield Claimants Trust

(1996) 48 Cal.App.4th 976, 978-979.) Vissuet has not made this showing. Her sole

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argument is that the trial court had "ample authority" to consolidate the actions under

Asuncion v. Superior Court (1980) 108 Cal.App.3d 141. She does not discuss Asuncion,

provide any background concerning her consolidation requests, explain how the matters

involved significant common questions of law or fact, discuss whether the risks of jury

confusion or prejudice outweigh the reduction in time and expense resulting from

consolidation, or set forth the trial court's reasoning for its orders, all of which are

necessary for us to assess whether the court's rulings were within its discretion. This

court will not search the record for error, or make Vissuet's arguments for her. (See Inyo

Citizens for Better Planning v. Board of Supervisors (2009) 180 Cal.App.4th 1, 14.)

For the same reason, we reject Vissuet's claim that the trial court was biased in

Bank's favor because it did not allow Vissuet to amend her complaint. She argues that

amendments are liberally granted, but the court refused to allow it instead "requir[ing

her] to jump through hoops to ultimately accomplish such an amendment." Though we

agree with the general proposition that amendments to complaints should be liberally

granted (Vissuet inexplicably cites New Jersey authority—Nottee v. Merchants Mut. Ins.

Co. (2006) 185 N.J. 490, 500-501—for it), Vissuet's assertions otherwise are without any

pertinent legal argument or analysis. Even if we infer from her statement she was

required "to jump through hoops" that the court required her to follow some unnecessary

procedure, her assertion is unsupported by any citation to the record from which we may

assess whether or not the court committed a clear abuse of its discretion. We will not

search the record for error on this point.

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 Vissuet's challenge to the court's grant of judgment on the pleadings likewise fails.

She maintains the court was "incorrect and presumptive" when it ruled Vissuet had

conceded the deficiencies in her first amended complaint by not opposing Bank's motion

for judgment on the pleadings, and instead filing an amended pleading. She argues her

intention in filing the second amended complaint was to correct aspects of the preceding

pleading to enlighten the court on the issues. Vissuet argues that rather than analyzing

the first amended complaint, the court "summarily discarded" it, and immediately ruled in

Bank's favor, showing it was "predisposed" to grant judgment on the pleadings

"regardless of what complaint was before it." For the latter proposition, she cites

(without a pinpoint page reference) Khan v. Holder (9th Cir. 2009) 584 F.3d 773, a case

not about a judgment on the pleadings in a California state court, but involving the Ninth

Circuit's review of an immigration judge's denial of an application for asylum and its

interpretation of the Immigration and Nationality Act. (Id. at pp. 775, 777-778, 781.) In

another section of her brief, Vissuet contends the court erred by denying her request for

leave to file a proposed amended complaint "in such a manner wherein it would not be

summarily dismissed"; in part she maintains the court "d[id] not care" for her argument

concerning improper securitization and "prefer[red] to ignore it."

Vissuet's assertions of bias and error are without any reasoned legal argument or

citation to the record, and for that reason alone, we may deem them forfeited. But in fact,

the record contradicts her arguments. The trial court did not improvidently grant

judgment on the pleadings when Vissuet elected not to oppose the motion on the merits,

rather, it permitted Vissuet to substitute her second amended complaint and ordered her

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to explain in writing how that pleading cured the deficiencies raised by Bank's motion.

That order was consistent with settled procedures on such a motion. Faced with Bank's

motion for judgment on the pleadings, if Vissuet sought to simply file an amended

complaint, it was her burden to demonstrate that there was a reasonable possibility she

could cure the defects raised in Bank's motion with the amendment. (Schifando v. City of

Los Angeles (2003) 31 Cal.4th 1074, 1081 [applying demurrer standards]; Rice v. Center

Point, Inc. (2007) 154 Cal.App.4th 949, 959; Foundation for Taxpayer and Consumer

Rights v. Nextel (2006) 143 Cal.App.4th 131, 135.) The trial court's use of this procedure

does not show bias; to the contrary it reflects the court's efforts to give Vissuet every

reasonable opportunity to justify her amended pleading.

III. Vissuet Has Not Shown the Trial Court Abused its Discretion by Denying Leave to

Amend and Granting Judgment on the Pleadings

Asking us to review her second amended complaint de novo, Vissuet argues the

trustee's sale was "improper, wrongful, illegal, invalid, and in violation of [her] legal

rights" and the trust deed recorded in violation of the terms and conditions of the

promissory note and deed of trust. She argues Bank engaged in invalid and fraudulent

presale procedures, including by: (1) violating Civil Code section 2923.4; (2) dual

tracking; (3) "lulling" her in some unspecified manner; and (4) failing to inform Property

Sales II, LLC of pending litigation concerning title to the property before the trustee's

sale. She asserts Property Sales II, LLC was not a bona fide purchaser.

" 'A motion for judgment on the pleadings . . . challenges the sufficiency of the

plaintiff's cause of action and raises the legal issue . . . of whether the complaint states a

13
cause of action.' " (Arce v. County of Los Angeles (2012) 211 Cal.App.4th 1455, 1483,

fn. 16.) We apply the same review standard as for a general demurrer. (Reddell v.

California Coastal Com'n (2009) 180 Cal.App.4th 956, 971.) Normally, we review de

novo the grant of a motion for judgment on the pleadings to determine whether a cause of

action has been stated, treating as true all properly pleaded material facts and matters

judicially noticeable (ibid.; Soco West, Inc. v. California Environmental Protection

Agency (2013) 213 Cal.App.4th 1511, 1514), but not speculative allegations (see Rotolo

v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 318) or

"contentions, deductions or conclusions of law." (Aubry v. Tri-City Hospital Dist. (1992)

2 Cal.4th 962, 967.)

We need not set forth Vissuet's allegations here. In her appellate briefs, Vissuet

does not cite to the allegations of her substituted second amended complaint (or any of

the other iterations of her pleadings) supporting her contentions. She does not attempt to

explain how the allegations of her second amended complaint are sufficient to state

viable causes of action against Bank for nondisclosure fraud, breach of the covenant of

good faith and fair dealing, violation of the UCL, quiet title, or wrongful foreclosure.

She does not touch on any of the elements of these causes of action. Absent such

arguments, she has forfeited the challenge. (In re Sade C., supra, 13 Cal.4th at p. 994;

People v. Stanley, supra, 10 Cal.4th at p. 793.) To justify an amendment on appeal,

Vissuet "must clearly and specifically state 'the legal basis for amendment, i.e., the

elements of the cause of action,' as well as the 'factual allegations that sufficiently state

all required elements of that cause of action.' " (Maxton v. Western States Metals (2012)

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203 Cal.App.4th 81, 95.) Though appellate review is de novo following the grant of a

judgment on the pleadings, that does not mean our role is to review the adequacy of the

second amended complaint's allegations and make Vissuet's arguments for her.

Bank asserts Vissuet's claims fail in any event. It points out that none of the

theories Vissuet raises on appeal were argued in the trial court. More specifically it

argues that to the extent Vissuet seeks to allege Bank violated the Homeowner Bill of

Rights, that law is not retroactive. Bank argues Vissuet does not allege any modification

or loan foreclosure activity occurring after the date of its enactment: January 1, 2013.

The documents attached to Bank's motion, and of which the court below took

judicial notice, show the foreclosure was initiated before January 1, 2013. Under these

circumstances, we agree that though Vissuet claims Bank engaged in dual tracking, she

cannot state a cause of action asserting violation of any of the provisions of the

Homeowner Bill of Rights. (Rockridge Trust v. Wells Fargo, N.A. (N.D.Cal. 2013) ___

F.Supp. 2d ___ [2013 WL 5428722, *28], citing Sabherwal v. Bank of New York Mellon

(S.D.Cal. 2013) 2013 WL 4833940, *10; Landmark Screens, LLC v. Morgan Lewis

Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6 [unpublished federal cases may

properly be cited as persuasive, although not binding, authority].) A statute operates

prospectively unless the Legislature expressly declares it is to be applied retroactively.

(Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840.) There is no

express declaration of retroactivity in the Homeowner Bill of Rights, which, as Bank

correctly points out, became effective January 1, 2013. (Rockridge Trust, at *28; Lueras

v. BAC Home Loans Servicing L.P., supra, 221 Cal.App.4th at p. 86, fn. 14)

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 Bank further argues Vissuet lacks standing to assert a wrongful foreclosure claim

based on an alleged violation of a pooling and servicing agreement (PSA), another theory

raised by Vissuet for the first time on appeal. Vissuet's substituted second amended

complaint's cause of action for wrongful foreclosure alleges that Bank violated Civil

Code section 2934a and breached provisions of the trust deed "by the fact that Bank of

New York was the Trustee of the Trust than [sic] contained the Note and Deed of Trust

and that Bank of New York was the only entity with authority to enforce the Note and

Deed of Trust." She alleges Bank "received revenue in excess of $540,000 due to the

derivative and securitization processes employed with Plaintiff's Note and Deed of Trust"

and those actions caused her general damages and warranted punitive damages. In her

opening brief, Vissuet ignores these allegations and asserts anew (again, without

supporting record citations) that "[t]he parties involved in the alleged securitization and

transfer of Appellant's Note and Mortgage failed to adhere to the PSA, which requires

that Appellant's Note and Mortgage be properly endorsed, transferred, accepted, and

deposited with the Securitization Trust (or its custodian) on or before the 'closing date'

indicated on the Prospectus." Vissuet asserts the closing date was August 13, 2007, and

that these failures "result[ ] in the Note and Mortgage note not being part of the . . .

[trust], such that it is not a loan that either [Bank of New York] or Bank of America, N.A.

can attempt to collect on." (Some capitalization omitted.) Vissuet vaguely asserts the

lack of a recorded assignment before the closing date of the trust "raises numerous red

flags" and "demonstrates fatal securitization defects."

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 In Arabia v. BAC Home Loans Serv., L.P. (2012) 208 Cal.App.4th 462, we

addressed on review of a summary judgment a beneficiary's claim that BAC Home Loans

Servicing, L.P. (BAC) could not judicially foreclose because it was not in compliance

with a PSA. We said: "[Plaintiff] fails to explain why BAC's breach of the PSA matters

in the instant action. [He] obtained a mortgage loan secured by a deed of trust recorded

against the property. If [he] failed to make his payments, he faced the possibility of

foreclosure. This is what happened here. There is no dispute that [plaintiff] has failed to

make his payments on the First Loan and is subject to foreclosure. Whether BAC has

breached an agreement with [Bank of New York] does not alter these undisputed facts or

the consequence arising out of [plaintiff's] failure to repay the First Loan. [¶] Moreover,

if BAC had breached the PSA, then perhaps [Bank of New York] would have a claim

against BAC. But it is an unsupported leap of logic that would allow [plaintiff] to use

these breaches to challenge BAC's right to initiate a judicial foreclosure . . . ." (Id. at p.

473; accord, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-

515 [borrower, who is an unrelated third party to the alleged securitization, lacks standing

to challenge improper transfer of a promissory note during the securitization process and

other subsequent transfers of the beneficial interest under the promissory note].)

We do not need to decide whether these cases or the other authorities Bank cites

preclude Vissuet's claim of wrongful foreclosure on the theory asserted in her opening

brief. Vissuet has not tied her assertions to any allegation in her operative pleading or set

out the elements of a wrongful foreclosure action. She has not demonstrated in any

meaningful way that she can state a viable cause of action, and we have no reason to

17
conclude she has overcome the presumption of correctness of the trial court's decision to

deny leave to amend and grant judgment on the pleadings.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McINTYRE, Acting P. J.

AARON, J.

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