Filed 6/22/16 Riggs v. Wells Fargo Bank CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHAEL RIGGS et al.,
G051770
Plaintiffs and Appellants,
(Super. Ct. No. 30-2014-00712039)
v.
OPINION
WELLS FARGO BANK, N.A., et al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Craig L.
Griffin, Judge. Affirmed.
Law Offices of Joseph R. Manning, Jr., Joseph R. Manning, Jr., and Craig
G. Côté, for Plaintiffs and Appellants.
Kutak Rock, Jeffrey S. Gerardo and Steven M. Dailey, for Defendants and
Respondents.
* * *
Michael Riggs, in his individual capacity and as co-trustee of the Michael
Riggs Revocable Trust, and his wife Evelyn Riggs appeal from the trial court’s entry of
judgment after sustaining the demurrer filed by Wells Fargo Bank, N.A., and US Bank
National Association, as trustee for Sasco Mortgage Loan Trust 2006-WF1, (collectively,
the Lender) to their first amended complaint for breach of contract, negligent
misrepresentation, and Civil Code section 2923.6 and Business and Professions Code
section 17200 violations. The Riggses filed their lawsuit to preclude a trustee’s sale of
their home and to enforce the Lender’s asserted oral promise to modify the terms of the
loan secured by their home. They assert the trial court erred in concluding the gravamen
of their complaint arose during the pendency of their personal bankruptcy proceedings,
and therefore was not actionable in state court. In other words, their bankruptcy estate
owned any causes of action stemming from the Lender’s alleged broken promise or
misrepresentation that the Riggses’ participation in a three-month loan modification trial
period plan (TPP) would entitle them to permanent modification of their home loan.
The trial court in its thorough ruling also explained among other alternate
grounds that the statute of frauds and the Riggses’ conclusory assertion of a material
improvement in their financial circumstances were fatal to their claims. Because the
court was correct on these alternate points as a matter of law, we must affirm the
judgment and need not address the parties’ other contentions.
I
FACTUAL AND PROCEDURAL BACKGROUND
The trial court’s detailed ruling includes the information pertinent to our
review and, as relevant, we add particulars that the parties emphasize in our discussion
below.
The court explained in its minute order: “The court previously sustained the
defendants’ demurrer with leave to amend. The plaintiffs filed a first amended complaint
in response but such pleading does not cure the defects noted in the prior ruling [by] this
court. On the face of the pleading and judicially noticeable documents, it is clear that the
[plaintiffs] filed for bankruptcy during the time period at issue in [their] complaint. As
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such, the bankruptcy trustee retains the right to raise any claims arising from the facts
alleged in the complaint. Such claims include Wells Fargo’s alleged wrongful failure to
approve plaintiffs[’] loan modification applications.
“It is clear from the amended complaint that the plaintiff[s] lack[] standing
to sue on the claims alleged. There has been no showing or allegations by the plaintiff[s]
that the bankruptcy trustee abandoned or exempted the claims at issue in this pleading.
Rowland v. Financial Corp. (D. Hawaii 1996) 949 F.Supp. 1447, 1453. [¶] The
argument raised, again, by the [p]laintiffs that they were not aware of these [breach of
contract, misrepresentation, or other] claims at the time of their bankruptcy filings is not
persuasive because they . . . still fail to cite any authority which would support their
argument. Simply put the bankruptcy estate included all legal and equitable interests of
the [plaintiff] debtors at the commencement of the [bankruptcy] case, and only the trustee
could bring the claims. For this reason alone, the demurrer to each of the causes of action
should be sustained without leave to amend.”
The trial court noted several additional, alternate bases for sustaining the
demurrer as to plaintiffs’ breach of contract claim. First, “the [p]laintiffs seek to
challenge [and enjoin] the [pending] foreclosure of their property without alleging an
immediate ability to tender the amounts due. Arnold Mgmt. Corp. v. Eischen (1985)
158 Cal.App.3d 575, 579-580. The [p]laintiffs do not allege any facts which would make
application of the tender rule inequitable. As such, the demurrer should also be sustained
without leave to amend for failure to allege tender.”
Second, “[p]laintiffs do not [adequately] ple[a]d or assert in their
opposition any [contractual] obligation by defendants to provide them with a loan
modification. Plaintiffs have not alleged that the language of the TPP required the
defendants to provide the plaintiffs with a permanent modification. Since loan
modifications are subject to the statute of frauds, such must be set forth in a writing.
Secrest v. Sec. National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544
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[Secrest]. The TPP, therefore, will not support the breach of contract cause of action
alleged.”
Third, as to both the breach of contract and misrepresentation claims, the
court observed: “The [p]laintiffs allege that the [d]efendants misrepresented to them that
they would receive a loan modification if they made additional payments [under the TPP]
and that they relied upon the statements when making the additional payments. The
cause fails to allege [the terms of the purported new, permanent contract modification or]
the misrepresentation . . . with the required specificity and more importantly does not
allege facts which constitute justifiable reliance by the [p]laintiffs. The law makes it
clear that making payments which a borrower is already legally obligated to make cannot
support reliance to their detriment. Newgent v. Wells Fargo Bank, N.A. (S.D. Cal.
March 2, 2010) 2010 WL 761236. Additionally, the allegations do not refer to a past or
existing fact but rather a promise to do something in the future; such is not the proper
basis for a negligent misrepresentation cause of action. Magpali v. Farmers Group
(1996) 48 Cal.App.4th 471.”
The trial court also invoked tender in its ruling on the Riggses’ statutory
claims, noting, “The [p]laintiffs attempt to plead a violation of Civil Code § 2923.6 cause
of action but have not alleged tender . . . as is required to avoid foreclosure.”1
Alternately, the court added that, “in order to entitle the borrower to
reconsideration” of a loan modification, “under the language of Section 2923.6[,] the
material change in their financial circumstances . . . must be ‘documented by the
borrower and submitted to the mortgage servicer.’ [Civ. Code § 2923.6(b).]” (Original
1 As the Riggses explained in their first amended complaint, section 2923.6
codifies a portion of what has become known as “the Homeowner’s Bill of Rights,”
which they described as ensuring “that, as part of the non-judicial foreclosure process,
borrowers are not only considered for, but have a meaningful opportunity to obtain, any
available loss mitigation options offered by or through the borrower’s mortgage servicer,
such as loan modifications or other alternatives to foreclosure.”
4
brackets.) The court continued: “From the allegations of the third cause [of action] and
the exhibits to the FAC [First Amended Complaint], the plaintiffs have not established
that they fulfilled such obligations. The [p]laintiffs merely stated that the[re] had been a
material change in their financial circumstances and . . . their income had increased.”
Finally, the court explained that “[t]he fourth cause is not pled with
sufficient facts to constitute a cause of action for violation of § 17200. The cause is
derivative of the [p]laintiffs’ other claims; since . . . they are insufficient to state a
cause[,] this cause is also insufficient for the same reasons.”
After sustaining the demurrer, the trial court subsequently entered
judgment, and the Riggses now appeal.
II
DISCUSSION
A. Preliminary Matters
The Riggses expend considerable effort addressing the tender rule, judicial
estoppel in light of their earlier bankruptcy filings (in which they listed none of their
present causes of action), and the trial court’s conclusion their claims belonged to their
respective bankruptcy estates. For the sake of completeness, we observe briefly that a
homeowner in default generally must make an unambiguous tender of the entire
outstanding debt before challenging an impending or completed nonjudicial foreclosure
sale. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 (Lona); Nguyen v. Calhoun
(2003) 105 Cal.App.4th 428, 445-446.) “‘The rationale behind the rule is that if [the
borrower] could not have redeemed the property had the sale procedures been proper, any
irregularities in the sale did not [or would not] result in damages to the [borrower].’”
(Lona, at p. 112.)
Around the time the Riggses made successive $1,900 payments in July,
August, and September 2013 under the Lender’s trial period plan that they later claimed
entitled them to an “affordable,” permanent modification, the mortgage statement they
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attached to their first amended complaint reflected that their monthly mortgage obligation
was almost $5,000, their unpaid payments and late charges dating to 2010 approached
$200,000, and their total amount in default by the time of their complaint was over
$218,000.
The Riggses’ pleadings do not suggest they attempted to pay the amount
due to Lender, but as they note, the tender rule is subject to exceptions. For example, “if
the borrower’s action attacks the validity of the underlying debt, a tender is not required
since it would constitute an affirmation of the debt.” (Lona, supra, 202 Cal.App.4th at
pp. 112-113; see also Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th
1052, 1061 (Chavez) [outlining exceptions].) Or as the Riggses emphasize in an
unattributed quotation, “[a] tender may not be required where it would be inequitable to
do so.”2 (Accord, Lona, supra, at p. 113.) The Riggses observe that “[i]f the requirement
of tender was an absolute rule, homeowners would seldom, if ever, given delinquency
payments and the press of foreclosure proceedings, be able to challenge even the most
egregious foreclosure and would very well undermine the purpose of California’s
Homeowner Bill of Rights.”
Apart from the tender rule, the Riggses also contend judicial estoppel or
standing principles do not bar them from raising their claims, which they did not include
in their recent bankruptcy schedules. Evelyn Riggs had filed her personal bankruptcy
petition in June 2012 and obtained a discharge of unsecured debt in November 2012.
2 The Riggses had owned their Yorba Linda home since 2001, and in the
2005, they borrowed $731,500 from Lender, secured by a promissory note and
corresponding deed of trust. According to their complaint, a few years later their
“financial status began its downward spiral due to the nationwide economic crisis and
major cutbacks by employers, downsizing, and wage reduction,” compounded by a
neighborhood fire that damaged their home, and health crises that included a cancer
diagnosis and spinal surgery. The Riggses do not specify these or any other particular
facts rendered the tender rule inequitable, but instead assert generally that their pleadings
alleged mitigating facts “to such degree” that applying the tender rule “was an abuse of
discretion.”
6
Michael Riggs had filed his petition in October 2012 and his discharge of unsecured debt
became final in February 2013.
The Riggses acknowledge they alleged in their first amended complaint in
this action that their attempts to obtain a loan modification stretched over the period
“[b]etween late 2010 and early 2013,” during which they complained Lender “dragged
[them] across an endless cycle of repetitive document requests, resulting in no favorable
resolution.” Because this period overlapped with their respective bankruptcy petitions,
they recognize the trial court may have believed, albeit mistakenly they claim, that the
breach of contract, misrepresentation, and attendant statutory claims they allege here
were part of their loan modification attempts as a whole, and therefore belonged to their
bankruptcy estate. In other words, all their modification claims were inextricably linked
together, and because they first arose before and during the pendency of their bankruptcy
petitions, it was for their bankruptcy trustee to raise them in the bankruptcy court, and
they had no standing to do so now in state court.
The Riggses claim that, while the trial court’s conclusion was
understandable because they had “re-allege[d] and incorporate[d] by reference” in each
of their substantive causes of action “all paragraphs above,” including their claims of an
ongoing modification process “[b]etween late 2010 and early 2013,” the trial court erred
because their causes of action focused on the loan modification trial payment plan they
entered “[i]n or around June of 2013,” which was months after their bankruptcy
discharges. Thus, they insist their causes of action for breach of contract,
misrepresentation, and attendant statutory claims related to the TPP had not yet arisen at
the time of their bankruptcies, did not belong to their bankruptcy estates, and did not
preclude them from asserting them here.
But we need not delve further into or resolve on appeal these issues related
to the tender rule or the bankruptcy proceedings for the simple reason that the trial court’s
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alternate holdings require us to uphold the demurrer, particularly for lack of written
documentation required by the statute of frauds and Civil Code section 2923.6.
B. Breach of Contract
The statute of frauds disposes of the Riggses’ breach of contract and
misrepresentation causes of action. The statute of frauds requires that real estate
contracts, including an agreement “to pay an indebtedness secured by a mortgage or deed
of trust,” must be in writing. (Civ. Code, § 1624.) Contractual modifications also must
be in writing. (Civ. Code, § 1698, subd. (c) [“The statute of frauds . . . is required to be
satisfied if the contract as modified is within its provisions”].) Put another way, as the
trial court observed in quoting Secrest, “An agreement to modify a contract that is subject
to the statute of frauds is also subject to the statute of frauds.” (Secrest , supra,
167 Cal.App.4th at p. 553.)
Here, the Riggses alleged in their first amended complaint that Lender
“approved [them] for a loan modification trial period plan (‘TPP’) in or around
June 2013.” The terms of the plan required them to submit monthly payments of
approximately $1,900 in July, August, and September 2013. The Riggses alleged they
“spoke with [Lender’s] Home Preservation Specialist, Kenneth Foster, who assured
Plaintiffs that after Plaintiffs successfully made the three (3) payments, Mr. Foster would
try to get Plaintiffs a lower monthly payment. Mr. Foster further advised Plaintiffs that
Plaintiffs needed to successfully complete the three (3)-month trial period plan by making
all trial payments on the dates they were due, and then, Plaintiffs[’] loan would be
permanently modified.” (Italics added.)
According to the complaint, once “Plaintiffs timely made all the payments
under the TPP agreement” and “the three (3)-month TPP had come to its end,” they
“attempted to contact Mr. Foster,” but “were unsuccessful [and] a different representative
of Wells Fargo, Nicholas Fortune, advised that Mr. Foster was no longer with the
8
company and Mr. Foster left no notes/record of Plaintiffs’ status with the modification.
Mr. Fortune also advised Plaintiffs that their request for a loan modification was denied
due to their income, which Plaintiffs only reduced because Wells Fargo’s representatives
initially advised Plaintiffs to do so in order to qualify.”3
The Riggses never alleged their claimed TPP modification plan had any
written basis. Because the Riggses’ allegation that their “loan would be permanently
modified” rested on an oral communication, the statute of frauds precluded their breach
of contract claim. (Civ. Code, § 1698, subd. (c); Secrest, supra, 167 Cal.App.4th at
p. 553.) The Riggses rely on West v. JPMorgan Chase Bank, N.A. (2013)
214 Cal.App.4th 780, 786 (West), and Chavez, but those cases do not aid them.
The Riggses cite West for “the proposition that when a lender fails to
complete a permanent modification after a successful trial plan period . . . , such failure
constitutes a cause of action for Breach of Contract.” But in West, it was undisputed that
“the Trial Plan Agreement constituted a written contract.” (West, supra, 214 Cal.App.4th
at p. 796.) In particular, the lender there informed the borrower she “had been approved
for a TPP” in an approval letter offering “‘a permanent workout solution for your loan
once the Trial Plan has been completed,’” but cautioning that “‘[i]f you do not make your
payments on time, or if any of your payments are returned for nonsufficient funds, this
Agreement will be in breach and collection and/or foreclosure activity will resume.’” (Id.
at p. 789, italics added.) Here, in contrast, the Riggses never alleged or attached to any of
their complaints a written modification agreement.
Chavez is similarly unavailing. The Riggses assert under Chavez that
“Respondents and the [Trial] Court are estopped from asserting a Statute of Frauds
defense to Appellants’ Breach of Contract cause of action [because] Appellants tendered
3 As we discuss below, the Riggs alleged they subsequently “appeal[ed] the
denial based on incorrect income calculations,” and corrected their income
misstatements, but to no avail because the Lender denied their modification request.
9
payments for the TPP and the Respondent (Wells Fargo) accepted the payments . . . .”
Chavez recognized that courts “‘have the power to apply equitable principles to prevent a
party from using the statute of frauds where such use would constitute fraud.’
[Citation.]” (Chavez, supra, 219 Cal.App.4th at p. 1057-1058.)
The Riggses’ equitable estoppel claim fails on the merits, however. In
Chavez, the court acknowledged that “[t]he question whether Chavez adequately pleaded
facts to allege equitable estoppel to rely on the statute of frauds defense is a close one.”
(Chavez, supra, 219 Cal.App.4th at p. 1061.) The court noted that “[i]n Secrest, the
appellate court found that a homeowner’s mere payment of money, a down payment in
reliance on a forbearance agreement not signed by the party to be charged, was
insufficient to raise an estoppel to assert the statute of frauds defense.” (Ibid.) But in
Chavez, the written “Modification Agreement” that the lender gave the borrower was
“ambiguous at best and illusory at wors[t].” (Ibid.) The agreement induced the borrower
to acquiesce to adding unpaid and deferred sums to the outstanding principal balance,
accruing interest on those sums “‘which would not happen without this Agreement.’”
(Ibid.) The court concluded that the “[d]efendants’ conduct, combined with the language
of the Modification Agreement that Chavez’s original loan documents would
‘automatically’ be modified on a date certain could be construed as an implied
representation that the statute of frauds would not be relied upon.” (Ibid.)
There was no similar written modification agreement or sharp practices
here on which to premise estoppel. Chavez recognized, as in Secrest, that a plaintiff does
“not sufficiently allege an estoppel because she merely made payments she was already
obligated to make under the Trial Period Plan.” (Chavez, supra, 219 Cal.App.4th at
p. 1061.) That was the case here, and therefore the Riggses’ attempt to avoid the statute
of frauds fails.
C. Negligent Misrepresentation
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The Riggses’ misrepresentation claim similarly fails because of the statute
of frauds. Negligent misrepresentation is “form of deceit,” which requires “justifiable
reliance thereon by the party to whom the misrepresentation was directed.” (Fox v.
Pollack (1986) 181 Cal.App.3d 954, 962.) The gravamen of plaintiffs’ deceit claim is
that Lender misled them that if they made their reduced payments under the TPP, they
would be granted a permanent, “affordable” modification of their original loan
agreement. But their complaint reveals that the basis for their claim was an alleged oral
misrepresentation by a former Lender representative “that if they made the three (3)-
month trial plan payments and submitted all requested documents to Defendant, then the
loan modification would be converted into a permanent loan modification.” Where the
statute of frauds requires a written agreement to modify a contract (Civ. Code, §§ 1624;
1628, subd. (c)), it is not reasonable to rely on an allegedly spoken modification offer. 4
4 At oral argument, the Riggses asserted for the first time promissory
estoppel as a basis for their breach of contract claim and, by implication, their
misrepresentation claim — based on the allegedly false promise to modify the original
loan terms if the Riggses made their payments under the TPP. But promissory estoppel
requires, in addition to a clear and unambiguous promise, “(2) reliance by the party to
whom the promise made; (3) [the] reliance must be both reasonable and foreseeable; and
(4) the party asserting the estoppel must be injured by his reliance.” (Aceves v. U.S. Bank
N.A. (2011) 192 Cal.App.4th 218, 225.) The Riggses point to no alternate measure or
action that allegedly relying on the TPP prevented them from doing to save their home,
and thus no injury traceable to the TPP. In these circumstances, there was no reasonable
or foreseeable reliance on an allegedly spoken modification offer when a written
agreement was required.
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D. Statutory Claims
The trial court also reasonably could conclude the lack of adequate written
documentation doomed the Riggses’ substantive claim under Civil Code section 2923.6.
As a preliminary matter, the Riggses asserted a technical violation of that code section
because the Lender did not provide them with a written denial of their modification
request. (See Civ. Code, § 2923.6, subd. (f) [“Following the denial of a first lien loan
modification application, the mortgage servicer shall send a written notice to the
borrower identifying the reasons for denial,” italics added].) The purpose of that
requirement, however, is to facilitate an appeal (id., subd. (f)(1)), and the Riggses’
acknowledged Lender representative Fortune informed them of the reason for the denial
(insufficient income), enabling them to take their appeal and address the reason for the
denial. They were not successful, but nothing in the legislation requires the lender to
award the homeowner a modification. (See Civ. Code, § 2923.4 [“The purpose of the act
that added this section is to ensure that, as part of the nonjudicial foreclosure process,
borrowers are considered for, and have a meaningful opportunity to obtain available loss
mitigation options,” but “Nothing in the act . . . shall be interpreted to require a particular
result of that process”].)
The Riggses’ substantive claim under Civil Code section 2923.6 also fails
as a matter of law. They relied on subdivision (g), which provides that a lender “shall not
be obligated to evaluate applications from borrowers . . . who have been evaluated or
afforded a fair opportunity to be evaluated [for a first lien loan modification] consistent
with the requirements of this section, unless there has been a material change in the
borrower’s financial circumstances since the date of the borrower’s previous application
and that change is documented by the borrower and submitted to the mortgage servicer.”
(Italics and bold added.)
The Riggses alleged in their first amended complaint that when the Lender
denied their loan modification, they appealed and “resubmitted their financial documents
12
and proof of their correct income value directly to Wells Fargo in October of 2013, after
being advised by Wells Fargo’s representative that they had been denied for a
modification due to their income.”
They also alleged that in March 2014, two days before they filed their
complaint, their attorney sent Lender “a letter regarding Plaintiffs’ loan and the material
change in their financial circumstances. Specifically, this letter advised Defendants that
Plaintiffs’ income had increased: Plaintiff Michael Riggs’s gross monthly salary had
increased, as well as his income from overtime and commissions. Plaintiffs attached to
the letter Plaintiff Michael Riggs’s most recent paystubs for the months of January 2014
and February 2014, evidencing the increase in income. . . . In addition, Plaintiffs had
eliminated a significant amount of personal unsecured debt and monthly expenses,
thereby increasing the household’s gross [sic: net] monthly income. As [a] result of
Plaintiffs’ material change in their financial circumstances, they were, and are in a much
better position to make affordable mortgage payments. Defendant Wells Fargo, however,
has not provided Plaintiffs with an opportunity to make affordable payments based on the
material change in their financial position.” (Italics added.)
The trial court did not err in concluding these allegations of a “material
change” failed to state a claim under subdivision (g). “‘[A]lthough the precise nature of
the documentation required under this code is not clear, the plaintiff must do more than
submit a new loan modification with different financial information.’ [Citations.] To
find otherwise would be to defeat the intent of subsection (g), which is to ‘relieve
mortgage servicers from evaluating multiple loan applications submitted for the purpose
of delay.’ [Citation.]” (Castaneda v. Wells Fargo Home Mortgage (C.D. Cal. Feb. 26,
2016) 2016 WL 77862, *4.) A letter that “‘the borrower has had a change of
circumstances [in that] their income and expenses have changed’” only attempts to
“easily sidestep” subdivision (g)’s documentation requirement. (Winterbower v. Wells
Fargo Bank, N.A. (C.D. Cal. Mar. 27, 2013) 2013 WL 1232997, *3, italics added.) “[T]o
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‘document’ and ‘submit’ a material change in circumstances means more than simply
stating one’s expenses decreased and then providing two numbers.” (Ibid.)
Here, the plaintiffs did not even supply “two numbers” to indicate the
degree of change they asserted was “material.” True, they attached to the first amended
complaint Michael Riggs’s pay stubs for two months in 2014, but the stubs did not state
any change between their modification application, their assertedly corrected figures
upon appeal, or their 2014 “material change” application because the pay stubs did not
reference any of those documents. Plaintiffs’ appendix on appeal does not include their
March 2014 attorney letter to Lender, except an incomplete, barely legible “fax
confirmation” portion of the letter, which, like their summary of the letter in their
pleading, also only asserts a “material change” without explanation.
A single line in the first amended complaint suggests some unspecified
“financial documents showed a gross monthly income just over $6,000,” but again no
reference is provided to discern whether this figure is material. The figure is not
contrasted with income amounts in the initial modification application or the appeal,
which are left unstated. Indeed, the $6,000 figure is about the same as the Riggses’ stated
gross monthly income in their bankruptcy schedules, which hardly reflects a material
change documenting their ability to pay their mortgage or a reasonable basis for the
lender to agree to a modification. In sum, nothing in the first amended complaint
provided any reason for a trier of fact to conclude a merely asserted “change” was
material in relation to, for example, the tender sum due, the applicant’s previously
documented income figures, or a “net present value” assessment of the loan (Civ. Code,
§ 2923.6, subd. (f)(3)). Consequently, the court did not err in finding the Riggses’ claim
fatally flawed.
Because plaintiffs’ claim for unfair business practices under Business and
Professions Code section 17200 derived entirely from their other claims, and none of
those survived demurrer, the trial court correctly sustained the demurrer on this claim too.
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III
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
The supersedeas stay this court entered on October 30, 2015, of the then-pending
November 2015 trustee’s sale appears to be moot and, in any event, is dissolved.
ARONSON, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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