Orcilla v. Big Sur, Inc. | CA Court of Appeal 6th Dist. - Quick Loan never assigned the Note or its interest in the Deed of Trust, wrongful foreclosure and a crap load of various statutory violations

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Orcilla v. Big Sur, Inc. | CA Court of Appeal 6th Dist. – Quick Loan never assigned the Note or its interest in the Deed of Trust, wrongful foreclosure and a crap load of various statutory violations

Orcilla v. Big Sur, Inc. | CA Court of Appeal 6th Dist. – Quick Loan never assigned the Note or its interest in the Deed of Trust, wrongful foreclosure and a crap load of various statutory violations

H/T Gary Dubin

Filed 2/11/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

VIRGILIO ORCILLA et al.,
Plaintiffs and Appellants,

v.

BIG SUR, INC., et al.,
Defendants and Respondents.

excerpt:

Plaintiffs Virgilio and Teodora Orcilla lost their San Jose home (the Property) through a nonjudicial foreclosure sale in May 2010. The Property was purchased by a third party, defendant Big Sur, Inc. (Big Sur). The Orcillas vacated the Property after Big Sur obtained a judgment against them in an unlawful detainer action. Thereafter, the Orcillas sued Big Sur and the parties involved in the nonjudicial foreclosure sale, Bank of America, N.A. (BofA); ReconTrust Company, N.A. (ReconTrust); and Mortgage Electronic Registration Systems, Inc. (MERS) (collectively, the Bank Defendants), to set aside the trustee’s sale.

Big Sur and the Bank Defendants successfully demurred to the operative second amended complaint. The Orcillas, proceeding in propria persona, appeal from a judgment entered in favor of defendants. We reverse and remand with instructions.

[…]

The California Department of Corporations revoked Quick Loan’s lending license on May 27, 2008, having found Quick Loan had pledged trust funds to obtain gambling markers from Las Vegas casinos and was charging borrowers unauthorized fees. The Orcillas allege Quick Loan never sold or assigned the Note or its interest in the Deed of Trust.

II. PROCEDURAL BACKGROUND
The Orcillas filed suit against Big Sur and the Bank Defendants on May 24, 2012. Defendants successfully demurred to the Orcillas’ initial complaint and first amended complaint, but the Orcillas were granted leave to amend those pleadings. The operative second amended complaint, filed on April 2, 2013, asserts 13 causes of action: wrongful foreclosure; violation of Civil Code section 2924;4 violation of section 2924b; violation of section 2924c; violation of section 2924f; violation of section 2932.5; breach of contract; fraud; breach of oral contract; promissory estoppel; quiet title; unlawful business practices in violation the unfair business competition law (UCL) of Business and Professions Code section 17200 et seq.; and declaratory relief.

Each cause of action is largely based on the following allegations: the original loan and the loan modification were unconscionable and unenforceable; no valid notice of default was issued prior to the trustee’s sale because the loan modification cured the second Notice of Default; the trustee’s sale was fraudulent because the Notice of Trustee’s Sale set forth an incorrect date of sale; the Bank Defendants lacked the authority to foreclose on the Property because the Deed of Trust never was assigned to them; the Bank Defendants lacked the authority to foreclose on the Property because the Deed of Trust was invalid, having been bifurcated from the Note; and the Bank Defendants improperly proceeded with the trustee’s sale after promising to postpone it. Big Sur and the Bank Defendants successfully demurred. The trial court sustained defendants’ demurrers without leave to amend as to all causes of action except the promissory estoppel claim against the Bank Defendants, for which leave to amend was granted.

After the Orcillas failed to file a third amended complaint within the leave period, the Bank Defendants moved to dismiss the action. The court granted that motion and entered judgment in favor of defendants. The Orcillas timely appealed.

[…]

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