Filed 4/29/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN MILES,
Plaintiff and Appellant, G050294
v. (Super. Ct. No. RIC541334)
DEUTSCHE BANK NATIONAL TRUST OPINION
COMPANY et al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Riverside County,
Paulette Durand-Barkley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Reversed.
Alessi & Koening, Ryan Kerbow and Thomas J. Bayard for Plaintiff and
Appellant.
Houser & Allison, Eric D. Houser, Brian J. Wagner, and Eileen M.
Horschel for Defendants and Respondents.
This case involves allegations of a wrongful foreclosure and related causes
of action. Plaintiff John Miles appeals from a judgment dismissing his breach of
contract, fraud, and negligent misrepresentation causes of action pursuant to a sustained
demurrer, and a summary judgment in favor of defendants on the wrongful foreclosure
cause of action.
With respect to the demurred causes of action, we reverse. In the record
before us, the court did not offer any explanation for its ruling. Based on our independent
review of the complaint, we conclude plaintiff adequately stated his claims.
With respect to the wrongful foreclosure cause of action, we also reverse.
The court granted summary judgment on the sole basis that plaintiff could not prove
damages because he did not have any equity in the home when it was sold at a non-
judicial foreclosure sale. Wrongful foreclosure is a tort, however, and thus plaintiff may
recover any damages proximately caused by defendants’ wrongdoing. Plaintiff offered
evidence that he lost rental income and suffered emotional distress as a result of the
foreclosure. This is disputed, of course, but it is sufficient to survive a summary
judgment motion.
I.
The Demurrer
FACTS ALLEGED IN THE FIRST AMENDED COMPLAINT
Plaintiff owned property in Riverside. In July 2005, plaintiff refinanced the
loan on his property with a total loan amount of $815,000. This was an adjustable rate
mortgage. The loan was serviced by defendant HomEq Servicing (HomEq). For the first
21 months of the loan, plaintiff was current on his payments. During the period between
2
June 2007 and September 2007, the monthly payment on the loan increased first to
$5,968 per month, and then to $6,800 per month.
In August 2007, plaintiff applied for a loan modification to try making
payments more affordable. In February 2008, HomEq informed plaintiff that he had to
make “a lump sum $12,000 payment as a ‘modification processing fee’ before Plaintiff
could . . . see the terms of the proposed modification.” Plaintiff paid the fee. In March
2008, HomEq gave plaintiff a loan modification agreement, to which the parties agreed.
Under the terms of that agreement, plaintiff’s loan balance was increased to $834,051.86.
The interest rate was fixed at 5.990 percent (the prior rate was 7.490 percent), and the
1
monthly payment would be $6,236.78. Plaintiff made a payment under that agreement,
but the next month HomEq stated they would no longer honor the terms of that
agreement. Instead, HomEq sent a new agreement that increased the loan balance to
$870,767.34. It offered no explanation for the change.
Plaintiff believed the March 2008 agreement was valid, and thus he made
payments to HomEq under that agreement for March, April, and June of 2008, totaling
$18,789. In June 2008, HomEq sent plaintiff yet another loan modification agreement,
this time raising the balance to $895,117.18, again without explanation.
In July 2008, HomEq sent correspondence to plaintiff demanding a
payment of $35,684 to process a new loan modification. HomEq then began refusing
plaintiff’s payments under the March 2008 agreement, requiring that he pay $7,600 per
month instead. When plaintiff insisted on the terms of the March 2008 agreement,
HomEq recorded a notice of default and election to sell the property. In October 2008,
HomEq recorded a notice of trustee’s sale of the property with a sale date of November
20, 2008.
1
Although not alleged, we learn through the summary judgment motion that
both parties signed the agreement.
3
HomEq then informed plaintiff it would give him a new modification if he
would send a payment of $14,050. In light of the looming sale date, plaintiff complied.
Instead of sending a loan modification agreement, however, HomEq sent a forebearance
agreement and demanded a payment of $1,450 before it would send a modification
agreement.
Plaintiff continued trying to work with HomEq until February 2009, when
HomEq sent another loan modification agreement, this time asking for an upfront
payment of $29,771. “Having paid $44,000.00 over a 10 month period for modifications
that never materialized, Plaintiff had no faith that any further payments would have any
better result so he declined to make the requested payment.”
Defendants set a sale date for plaintiff’s house of March 23, 2009. On
March 19, 2009, plaintiff obtained a temporary restraining order against the sale of his
house from the Riverside County Superior Court. Plaintiff alleges on information and
belief that defendants had notice of the order. Nonetheless, defendants proceeded with
the sale on March 23, 2009, and dispossessed plaintiff.
PROCEDURAL HISTORY
Plaintiff filed suit against defendants Deutsche Bank National Trust
Company, the purported owner of the loan, and HomEq Servicing, which serviced the
loan.2 Defendants demurred to plaintiff’s first amended complaint, and the court
sustained the demurrer as to the causes of action for breach of contract, fraud, and
2
Deutsche Bank National Trust Company was sued as trustee under a
pooling and servicing agreement dated as of January 1, 2006, Morgan Stanley ABS
Capital 1 Trust 2006 NC1. HomEq Servicing is in fact Barclays Capital Real Estate, Inc.
doing business as HomEq Servicing, erroneously sued as simply HomEq Servicing.
4
3
negligent misrepresentation. The court did not give any indication of the basis of its
ruling, and we were not provided a record of the hearing. The court gave plaintiff 30
days leave to amend, which plaintiff chose not to do.
Defendants then moved for summary judgment on the lone remaining cause
of action for wrongful foreclosure, which the court granted (the facts and procedural
history pertinent to the summary judgment motion will be discussed below). Plaintiff
timely appealed.
DISCUSSION
“On appeal from a judgment dismissing an action after sustaining a
demurrer . . . , the standard of review is well settled. The reviewing court gives the
complaint a reasonable interpretation, and treats the demurrer as admitting all material
facts properly pleaded. [Citations.] The court does not, however, assume the truth of
contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’
[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff
has stated a cause of action under any possible legal theory.” (Aubry v. Tri–City Hospital
Dist. (1992) 2 Cal.4th 962, 966–967.)
We begin by quickly dispensing with an argument that runs throughout
respondents’ brief: “Plaintiff’s fraud, breach of contract and negligent misrepresentation
causes of action were not sustained without leave to amend, they were sustained with 30
days leave to amend. Plaintiff chose to not file a timely amended complaint pursuant to
the trial Court’s order and therefore voluntarily abandoned those causes of action.
Plaintiff cannot appeal his decision not to pursue the other causes of action.” Defendants
3
The court also sustained the demurrer to plaintiff’s cause of action entitled
“One Action Violation,” which he is not pursuing on appeal.
5
cite no authority for this remarkable proposition, and it would be an absurd rule indeed.
If a plaintiff had already stated all available facts, but was given an opportunity to amend,
how could forfeiture be avoided under defendants’ rule? By making up facts? That is
not the law. Even if given an opportunity to amend, a plaintiff may stand on the
sufficiency of the complaint. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 312 [“[w]hen a demurrer is sustained with leave to amend, and the
plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing
dismissal order may challenge the validity of the intermediate ruling sustaining the
demurrer”].) There was no forfeiture.
Next, defendants contend the demurrer to the breach of contract cause of
action was properly sustained because the complaint “does not allege whether the
contract was in writing, oral or implied.” (See Code Civ. Proc., § 430.10, subd. (g)
[complaint demurrable if, “[i]n an action founded upon a contract, it cannot be
ascertained from the pleading whether the contract is written, is oral, or is implied by
conduct”].) This is a purely technical argument, as defendants’ summary judgment
motion demonstrates they knew which contract was at issue, were in possession of it, and
thus knew it was in writing. The problem with this purely technical argument is that
defendants did not comply with their own technicalities. Defendants’ demurrer did not
mention Code of Civil Procedure section 430.10, subdivision (g). Instead, the demurrer
simply stated, “Plaintiff’s third cause of action for breach of contract does not state facts
sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc.
§§ 430.10 (e) and (f).)” We will not uphold a demurrer on a technicality not asserted in
the trial court. Further, as noted above, plaintiff alleged that in March 2008, HomEq
gave plaintiff a loan modification agreement, to which the parties agreed. And specific
terms of that agreement are alleged, such as the balance of the loan, the interest rate, and
the required monthly payments. A reasonable inference drawn from those allegations is
6
that the contract plaintiff relies upon, the March 2008 modification agreement, was in
writing.
Defendants’ only remaining argument in support of the dismissal of the
breach of contract cause of action is that plaintiff failed to attach the contract or to plead
its terms verbatim. In support of that argument, defendants cite Otworth v. Southern Pac.
Transportation Co. (1985) 166 Cal.App.3d 452, 459 (Otworth), which stated, “If the
action is based on an alleged breach of a written contract, the terms must be set out
verbatim in the body of the complaint or a copy of the written instrument must be
attached and incorporated by reference.” The Otworth court did not offer any analysis to
support that proposition. Instead, it simply cited Wise v. Southern Pacific Co. (1963) 223
Cal.App.2d 50, 59 (Wise) (overruled on other grounds in Applied Equipment Corp. v.
Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510, 521). The Wise court stated, “where
a written instrument is the foundation of a cause of action, it may be pleaded in haec
verba by attaching a copy as an exhibit and incorporating it by proper reference.” (Wise,
at p. 59.) It is readily apparent that the Otworth court read more into that statement than
is actually there. The Wise court was simply stating one available method of pleading the
contract — it was not specifying the exclusive means of pleading a contract. The correct
rule is that “a plaintiff may plead the legal effect of the contract rather than its precise
language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29
Cal.4th 189, 199.) Because it is apparent that the Otworth court misread Wise, and
because, in any event, we are bound by our Supreme Court, we decline to follow
Otworth. Accordingly, plaintiff’s failure either to attach or to set out verbatim the terms
of the contract was not fatal to his breach of contract cause of action.
7
Aside from these arguments, it appears that plaintiff alleged the basic
elements of a breach of contract claim. “A cause of action for breach of contract requires
proof of the following elements: (1) existence of the contract; (2) plaintiff’s performance
or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a
result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226,
1239.) Plaintiff alleged an express contract to refinance his loan, including the loan
balance, the interest rate, and the monthly payment. He alleged he performed by making
payments under the agreement. He alleged defendants breached that contract by
repudiating it and refusing to accept payments under it. And he alleged he was damaged
by various fees he was charged and by being evicted from his home. Accordingly, we
reverse the dismissal of plaintiff’s breach of contract claim.
Defendants offer two arguments in support of the dismissal of the fraud and
negligent misrepresentation causes of action. First, they contend a misrepresentation
cause of action does not lie where the misrepresentation pertains to future events: “The
reason for this requirement is obvious: it is not possible to determine whether someone
making a representation did so with knowledge, or reckless disregard, of the truth of the
alleged representation if the representation was not made at a time in which it was known
to be true or false. Therefore, the alleged promise to modify the Plaintiff’s loan cannot
form the basis of a fraud or misrepresentation claim, because the Plaintiff cannot allege
that the person making such a representation knew it to be true or false, as it concerned a
future event.” Defendants later concede, however, “The only circumstances under which
a future promise may form the basis of a fraud claim is where the plaintiff can allege
facts that the promisor made a promise with no intent of performing.” Indeed, the nature
of promissory fraud is that it is a promise of future performance with no present intent to
actually perform. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) And this is
precisely what plaintiff alleges: “42. Defendants induced Plaintiff into entering into
making payments of more than $44,000.00 on the promise of providing Plaintiff with a
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reasonable modification of the loan on the Property. [¶] 43. At the time that Defendants
made these representations, they knew them to be false as Defendants had no intention of
honoring their promise to provide Plaintiff with a permanent loan modification but
instead, intended to strip the Plaintiff of all of his liquid assets and then proceed with
foreclosure on Plaintiff’s Property.” Accordingly, the misrepresentation causes of action
are not demurrable on the ground they involved a future event.
Defendants’ second argument is that the misrepresentation allegations lack
specificity. Defendants rely on the rule that in alleging fraud against a corporation, the
plaintiff must “‘allege the names of the persons who made the allegedly fraudulent
representations, their authority to speak, to whom they spoke, what they said or wrote,
and when it was said or written.’” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)
“We observe, however, certain exceptions which mitigate the rigor of the rule requiring
specific pleading of fraud. Less specificity is required when ‘it appears from the nature
of the allegations that the defendant must necessarily possess full information concerning
the facts of the controversy,’ [citation]; ‘[e]ven under the strict rules of common law
pleading, one of the canons was that less particularity is required when the facts lie more
in the knowledge of the opposite party . . . .’ [Citation.] [¶] Additionally, . . .
considerations of practicality enter in.” (Committee On Children’s Television, Inc. v.
General Foods Corp. (1983) 35 Cal.3d 197, 217 (superseded by statute on other grounds
in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242).)
Plaintiff alleges defendants induced him to make over $44,000 in payments
based on the false promise that they would provide a reasonable modification of the loan.
The alleged facts in support are that HomEq initially agreed to the March 2008 contract
but then reneged on it and on various particular dates sent more agreements and
demanded more fees. The primary omission in the allegations is that plaintiff does not
identify the names of the people he spoke to nor their authority to speak. In our view,
this omission falls comfortably in the realm of information that lies more in the
9
possession of defendants. (See Boschma v. Home Loan Center, Inc. (2011) 198
Cal.App.4th 230, 248 [“‘While the precise identities of the employees responsible . . . are
not specified in the loan instrument, defendants possess the superior knowledge of who
was responsible for crafting these loan documents’”].) Defendants admitted in the
summary judgment motion, for example, that they possessed a comment log of the phone
calls plaintiff had made to HomEq. Such evidence is easily foreseeable at the demurrer
stage. Further, as revealed by attachments to the complaint, some of the communications
from HomEq were in the form of letters that were simply signed by “HomEq Servicing.”
Finally, in an era of electronic signing, it is often unrealistic to expect plaintiffs to know
the who-and-the-what authority when mortgage servicers themselves may not actually
know the who-and-the-what authority. Accordingly, we do not consider that omission
fatal. Thus we will reverse the dismissal of the misrepresentation causes of action.
II.
The Summary Judgment Motion
FACTS
On July 1, 2005, plaintiff obtained a mortgage loan and executed a
promissory note and deed of trust in the amount of $815,000. The promissory note called
for monthly interest only payments in the amount of $4,068.21 from September 2005 to
August 2007. “Thereafter, Plaintiff was obligated to pay principal and interest payments
through the maturity of the loan.” That loan was ultimately assigned to defendant
Deutsche Bank National Trust Company and serviced by HomEq.
10
In 2005 and 2006 plaintiff failed to pay his property taxes, so HomEq
advanced the funds for plaintiff and demanded repayment. In April 2007 there remained
an escrow shortage of $31,081. HomEq informed plaintiff that he needed to bring it
current and that if he did not, his monthly payment would be increased to $5,937.64 to
cover the shortfall. Plaintiff agreed to the increased monthly payment, which he made in
May, June, July, August, and September of 2007. In September 2007, plaintiff submitted
an application for a loan modification. Plaintiff did not make payments in October or
November 2007 (plaintiff claims this was at HomEq’s advice to help the modification
process; HomEq denies this). He made a payment in December 2007 and January 2008
of $5,293.99 (the reason for the approximately $540 shortfall is disputed). In February
2008 the proposed loan modification was ready for review. Plaintiff claims, however,
that HomEq refused to send the agreement unless he paid a one-time processing fee of
$12,075.09. It is undisputed that he paid that amount in February 2008, but defendants
dispute that they required the money as a processing fee or otherwise refused to send the
agreement.
HomEq sent plaintiff a loan modification agreement dated March 7, 2008.
Under the terms of that agreement, plaintiff was to make a $3,500 down payment
concurrent with signing the agreement; $45,773.89 was to be added to the principal
balance of the loan to reflect past due interest, late fees and the monies HomEq had paid
for plaintiff’s delinquent property taxes. Plaintiff was given a credit of $20,884.08 to
reflect recent payments, however, resulting in a net increase in the loan balance of
$24,889.81. The resulting balance was $839,889.81. The interest rate was reduced from
an adjustable 7.49 percent to a fixed 5.99 percent. However, the rate was only fixed for
five years and the agreement did not specify how the rate would be calculated thereafter.
Plaintiff’s new monthly payment was $6,272.78. Once he received the agreement,
plaintiff called HomEq to inquire how the interest rate would be calculated after the five
years. HomEq advised plaintiff that the interest rate would be fixed at 5.99 percent for
11
the life of the loan, and also informed plaintiff that the version he received had errors and
needed to be revised. Before receiving the revised agreement, plaintiff made a payment
of $6,272.78 pursuant to the terms of the March 7 agreement.
Plaintiff subsequently received a revised agreement dated March 13, 2008.
The revised agreement actually slightly reduced the loan balance to $834,051.86 and the
monthly payment to $6,236.78. It also confirmed that the interest rate would be fixed at
5.99 percent for the life of the loan. Plaintiff signed the March 13 agreement and
returned it to HomEq. HomEq received it, forwarded it to management for review, and
the agreement was subsequently signed by Blanca Vargas, HomEq Vice-president.
On April 15, 2008, four days after HomEq received, approved and signed
the March 13 agreement, HomEq sent plaintiff a default letter demanding that he pay
$39,997.18 or face immediate foreclosure. One week later, HomEq accepted plaintiff’s
payment of $6,236.78. On April 30, just a little over one week later, HomEq sent another
loan modification agreement, this time raising the loan balance to $870,000. HomEq told
plaintiff he had to sign the latest loan modification agreement or face foreclosure.
Plaintiff claims that, thereafter, HomEq refused any payments under the March 13
agreement. HomEq denies that it refused payments. In any event, it appears no regular
payments were made in May 2008. It appears that HomEq believed the balance had been
miscalculated on the March 13 agreement and thus refused to honor it (even though
management had reviewed it and a vice-president had signed it).
Around June 11, 2008, HomEq sent another revised proposed loan
modification agreement. The revised agreement would have raised the loan balance to
$895,000. On June 19, 2008, plaintiff made another payment of $6,236, consistent with
the March 13 agreement.
On June 24, 2008, HomEq sent plaintiff an account statement demanding a
payment of $80,034.46 to bring the account current. On July 24, 2008, HomEq sent a
letter to plaintiff stating that an unspecified recent payment was insufficient. At around
12
the same time, HomEq sent another statement, but this one showed the principal balance
on the loan dropping by $3,253.47 and the past due amount dropping by $23,021.52 and
the escrow balance dropping by $7,477.76. This represented a total reduction in the
amount owed of $33,752.75. Plaintiff does not believe he paid this money and does not
know how it was calculated.
The next day, a notice of default and election to sell was sent to plaintiff,
listing the amount in default as $52,558.03 — a different amount than had been listed on
the statement.
In a letter dated October 10, 2008 (the record does not reveal what
transpired between July and October), HomEq offered to provide plaintiff with
“workout” options. On October 29, 2008, plaintiff received a notice of trustee’s sale
setting the sale date as November 20, 2008. As a result of the looming sale, on
November 5, 2008, plaintiff submitted another loan modification application. On
November 10, 2008, HomEq sent plaintiff a letter advising him he had been approved for
a “Repayment Plan.” The letter did not state what the terms of the repayment plan would
be. Instead, the letter stated that the terms of the plan would be mailed separately and
that plaintiff needed to make a payment of $14,050 within three days. On November 11,
2008, plaintiff (or possibly his attorney) contacted HomEq to see the terms of the
repayment plan but was told he could not see it until he paid the $14,050. Plaintiff did
so. On November 28, 2008, HomEq sent plaintiff a “forebearance agreement” that would
have required him to make payments of $13,475.74 per month for four months and then
another lump sum payment of $63,176.07 at the end of that period. Unable to afford
those payments, and still believing the March 13 agreement to be valid, plaintiff refused
to sign the forebearance agreement.
Around December 4, 2008, plaintiff received a letter from HomEq offering
another home loan modification predicated on plaintiff making another down payment of
13
4
$1,450. On January 12, 2009, HomEq sent plaintiff a letter stating he was in default
under the forebearance agreement (though there is no indication in the record that
plaintiff ever signed that agreement). On February 17, 2009, HomEq sent plaintiff
another letter offering to send plaintiff another modification if he made a payment of
$29,771. On March 17, 2009, plaintiff received a “Payoff Statement indicating that the
total amount due on the loan was $885,110.02.” The next day he received another
“Payoff Statement,” this time indicating the total amount of the loan was $891.032.31.
The following day, March 19, 2009, the Riverside Superior Court issued a
temporary restraining order blocking the sale of plaintiff’s home. It is disputed whether
defendants received notice of the order. On March 23, 2008, defendants sold plaintiff’s
home and subsequently evicted him.
PROCEDURAL HISTORY
After the court sustained the demurrer, defendants moved for summary
judgment on the only remaining cause of action, wrongful foreclosure. The court granted
the motion, reasoning, “Damages in a wrongful foreclosure action are based on the fair
market value of the property at the time it was sold, minus any mortgages and liens
against the property. [Citation.] Defendant provided evidence that Plaintiff owed
$891,375.18 when the property was sold, and evidence that the property was worth less
than $815,000 when it was sold.” “Although Plaintiff argued that he should be entitled to
include lost rental income, monies spent on improvements[,] attorneys’ fees and
emotional distress damages when calculating damages, the Court finds no case
supporting this specific method of calculating damages when only wrongful foreclosure
is alleged. To the contrary, each item identified would necessarily be reflected in the
4
Plaintiff states the amount as $1,450; defendants state it as $14,050.
14
value of the property.” The court also noted there was no evidence that defendants were
served with the temporary restraining order prior to the sale of the property.
DISCUSSION
The court granted summary judgment on the wrongful foreclosure cause of
action on the sole ground that plaintiff could not prove damages. The court believed the
only permissible damages in a wrongful foreclosure suit is the lost equity in the home,
and where there is no equity, no cause of action will lie. We disagree.
There are surprisingly few California cases describing the nature of a
wrongful foreclosure cause of action. The most thorough treatment is found in Munger v.
Moore (1970) 11 Cal.App.3d 1 (Munger), the case both the court and defendants relied
upon. The facts of that case are somewhat complicated, but to simplify to only the
relevant facts, the plaintiff defaulted on a loan secured by real property. (Id. at p. 5.)
Prior to any foreclosure sale, the plaintiff timely tendered the amount in default under the
loan. (Id. at pp. 5-6.) The defendants (the lenders) refused the tender and foreclosed on
the property. (Id. at p. 6.) They were ultimately able to sell the property for an amount
that exceeded all encumbrances on the property by $30,000. At trial, the court awarded
that amount to the plaintiff in damages. (Id. at pp. 11-12.)
Affirming, the court of appeal articulated the nature of a wrongful
foreclosure action and the proper measure of damages as follows: “[A] trustee or
mortgagee may be liable to the trustor or mortgagor for damages sustained where there
has been an illegal, fraudulent or willfully oppressive sale of property under a power of
sale contained in a mortgage or deed of trust. [Citations.] This rule of liability is also
applicable in California, we believe, upon the basic principle of tort liability declared in
the Civil Code that every person is bound by law not to injure the person or property of
15
another or infringe on any of his rights.” (Munger, supra, 11 Cal.App.3d at p. 7, fn.
omitted.)
We agree with this basic analysis of a tort of wrongful foreclosure. A tort
of wrongful foreclosure satisfies the basic factors for finding a tort duty enunciated in
Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651. The transaction is intended to affect
the plaintiff — it is intended to dispossess the plaintiff; it is easily foreseeable that doing
so wrongfully will cause serious damage and disruption to the plaintiff’s life; the injuries
are directly caused by the wrongful foreclosure; the moral blame of foreclosing on
someone’s home without right supports finding a tort duty; and recognizing a duty will
help prevent future harm by discouraging wrongful foreclosures. (See Ibid.) Such a tort
bears some analogy to a wrongful eviction tort, which is well recognized and can exist in
parallel with a breach of lease claim. (Nativi v. Deutsche Bank National Trust Co. (2014)
223 Cal.App.4th 261, 293 [“California recognizes the tort of wrongful eviction”];
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1033,
1039 [permitting both a breach of lease and tortious wrongful eviction to proceed].)
The basic elements of a tort cause of action for wrongful foreclosure track
the elements of an equitable cause of action to set aside a foreclosure sale. They are:
“(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of
real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party
attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or
harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or
mortgagor tendered the amount of the secured indebtedness or was excused from
tendering.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) Federal District
courts interpreting this cause of action have frequently cited the Nevada rule articulated
in Collins v. Union Federal Sav. & Loan Ass’n (Nev. 1983) 662 P.2d 610, 623 that “[a]n
action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish
that at the time the power of sale was exercised or the foreclosure occurred, no breach of
16
condition or failure of performance existed on the mortgagor’s or trustor’s part which
would have authorized the foreclosure or exercise of the power of sale.” (See, e.g., Das
v. WMC Mortgage Corp. (N.D.Cal., Oct. 29, 2010, C10-0650 PVT) 2010 U.S.Dist. Lexis
122042; Roque v. Suntrust Mortgage, Inc. (N.D.Cal., Feb. 10, 2010, C-09-00040 RMW)
2010 U.S. Dist. Lexis 11546.) In other words, mere technical violations of the
foreclosure process will not give rise to a tort claim; the foreclosure must have been
entirely unauthorized on the facts of the case. This is a sound addition.
After describing the cause of action as a tort, the Munger court proceeded
to describe the measure of damages as follows: “Civil Code section 3333 provides that
the measure of damages for a wrong other than breach of contract will be an amount
sufficient to compensate the plaintiff for all detriment, foreseeable or otherwise,
proximately occasioned by the defendant’s wrong. In applying this measure it must be
noted that the primary object of an award of damages in a civil action, and the
fundamental theory or principle on which it is based[,] is just compensation or indemnity
for the loss or injury sustained by the plaintiff and no more. [Citation.] Accordingly,
where a mortgagee or trustee makes an unauthorized sale under a power of sale he and
his principal are liable to the mortgagor for the value of the property at the time of the
sale in excess of the mortgages and liens against said property.” (Munger, supra, 11
Cal.App.3d 1, 11.)
Both the trial court and defendants interpreted Munger narrowly, with
defendants going so far as to say that “[t]he rule in Munger is an application of the
benefit of the bargain rule.” It would be strange, however, to apply a contract measure of
damages to a tort. We read Munger more broadly. It announced the rule that wrongful
foreclosure is a tort (Munger, supra, 11 Cal.App.3d at p. 7), and the measure of damages
is the familiar measure of tort damages: all proximately caused damages. In Munger, the
only damages at issue were the lost equity in the property, and certainly that is a
recoverable item of damages (id. at p. 11). It is not, however, the only recoverable item
17
of damages. Wrongfully foreclosing on someone’s home is likely to cause other sorts of
damages, such as moving expenses, lost rental income (which plaintiff claims here, and
damage to credit. It may also result in emotional distress (which plaintiff also claims
here). As is the case in a wrongful eviction cause of action, “‘The recovery includes all
consequential damages occasioned by the wrongful eviction (personal injury, including
infliction of emotional distress, and property damage) . . . and upon a proper
showing . . . , punitive damages.’” (Spinks v. Equity Residential Briarwood Apartments
(2009) 171 Cal.App.4th 1004, 1039.) 5
The rule applied by the trial court and urged by defendants would create a
significant moral hazard in that lenders could foreclose on underwater homes with
impunity, even if the debtor was current on all debt obligations and there was no legal
justification for the foreclosure whatsoever. So long as there was no equity, there would
be no remedy for wrongful foreclosure. And since lenders can avoid the court system
entirely through nonjudicial foreclosures, there would be no court oversight whatsoever.
Surely that cannot be the law. The consequences of wrongfully evicting someone from
their home are too severe to be left unchecked. For the reasons expressed above, a tort
action lies for wrongful foreclosure, and all proximately caused damages may be
6
recovered. Accordingly, the summary judgment is reversed.
5
Importantly, we are not suggesting any of these damages are actually
recoverable in this case. It may be that plaintiff’s damages, if any, are entirely offset by
the benefit of being free of an underwater loan. That issue has not been addressed by the
parties, however, and we express no opinion one way or the other.
6
After the events giving rise to this lawsuit, the legislature enacted a
statutory cause of action to recover damages against a lender or loan servicer who
forecloses on a home where there has been a loan modification and there is no default on
the loan modification. (Civ. Code, §§ 2924.12, subd. (b), 2923.6, subd. (c)(3).) The
applicability of this section has not been raised in the appeal, and we offer no opinion on
how it would impact, if at all, a common law tort action for wrongful foreclosure.
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DISPOSITION
The judgment is reversed. Plaintiff shall recover his costs incurred on
appeal.
IKOLA, J.
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.
19