Park v. AURORA LOAN SERVICES LLC | The judgment against Aurora Bank is affirmed. .... As in Sciarratta, we conclude the Parks have sufficiently pled prejudice to satisfy the pleading requirements of a wrongful foreclosure cause of action. ..... {THEREFORE}overruling the demurrer on the wrongful foreclosure, UCL, and quiet title claims ....

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Park v. AURORA LOAN SERVICES LLC | The judgment against Aurora Bank is affirmed. …. As in Sciarratta, we conclude the Parks have sufficiently pled prejudice to satisfy the pleading requirements of a wrongful foreclosure cause of action. ….. {THEREFORE} overruling the demurrer on the wrongful foreclosure, UCL, and quiet title claims ….

Park v. AURORA LOAN SERVICES LLC | The judgment against Aurora Bank is affirmed. …. As in Sciarratta, we conclude the Parks have sufficiently pled prejudice to satisfy the pleading requirements of a wrongful foreclosure cause of action. ….. {THEREFORE} overruling the demurrer on the wrongful foreclosure, UCL, and quiet title claims ….


Park v. AURORA LOAN SERVICES LLC

Cal: Court of Appeal, 4th Appellate Dist., 1st Div., 2016

 

SEAN M. PARK et al., Plaintiffs and Appellants,
v.
AURORA LOAN SERVICES LLC et al., Defendants and Respondents.

No. D068076.
Court of Appeals of California, Fourth District, Division One.
Filed July 28, 2016.
 

<excerpts>

Based on these principles and various additional conclusions, we determine the Parks have stated causes of action against the alleged foreclosing entity (Aurora Loan Services LLC) for wrongful foreclosure, violation of the statutory unfair competition statute (UCL), and quiet title. We also conclude the court erred in sustaining a demurrer on a quiet title cause of action against a third party (Nationstar Mortgage LLC (Nationstar)) that allegedly acquired title to the subject property with notice of the deficiencies in the foreclosure sale.
. . .

The Parks alleged that it is their understanding that the Note “was supposed to be [transferred and] properly securitized into a mortgage-back[ed] security which was to be `pooled’ together,” but that this transfer never occurred. The Parks alleged “their Note was not securitized and that neither the [Lehman Trust Series 2007] nor the [Lehman Trust Series 2005-2] have any legal, equitable, or monetary interest in their Note. . . .”[1] (Italics added.)

. . .

We shall detail the relevant allegations in the Discussion section below. But the essence of the allegations was that the foreclosure was wrongful because it was initiated by an entity (Aurora Loan Services) without the authority to foreclose; the Parks were unaware of the true owner of the loan and their mortgage payments may not have gone to the true owner; the Parks’ mortgage payments were not properly credited to their outstanding balances; and Aurora Loan Services and the entities it represented acted improperly in the loan modification process.

. . .

In their appellate briefs, the Parks contended the court erred as to each defendant and each cause of action, except negligence and accounting. At oral argument, the Parks’ counsel clarified that on appeal (1) the Parks are challenging the court’s ruling only on their wrongful foreclosure, UCL violation, and quiet title causes of action; (2) the Parks are not challenging the court’s rulings as to Aurora Bank on any cause of action; and (3) the Parks are challenging the court’s ruling as to Quality only on the quiet title claim. We accept these concessions and address only the challenged claims and parties.

. . .

Beyond its standing holding, the Yvanova court declined to consider whether the plaintiff had adequately alleged the three elements of the wrongful foreclosure tort (a wrongful foreclosure, prejudice, and tender). (Yvanova, supra, 62 Cal.4th at pp. 924, 943.) But this court recently considered these issues. (Sciarratta, supra, 247 Cal.App.4th 552.) In Sciarratta, the plaintiff alleged a bank foreclosed on the plaintiff’s home despite that the bank did not obtain legal ownership of the note and deed of trust until one month after the foreclosure sale. (Id. at pp. 556-559.) As explained in more detail below, we held the plaintiff’s allegations were sufficient to state a wrongful foreclosure claim under California law. (Id. at pp. 561-567.)

. . .

We conclude the Parks sufficiently alleged the first element of a wrongful foreclosure claim against Aurora Loan Services—that Aurora Loan Services foreclosed under the Deed of Trust’s power-of-sale provision without having a ownership/beneficial interest in the Note or Deed of Trust, nor acting as an agent of the beneficial owner.

. . .

As in Sciarratta, we conclude the Parks have sufficiently pled prejudice to satisfy the pleading requirements of a wrongful foreclosure cause of action. They alleged they suffered economic damages resulting from the foreclosure. That is all that is required at this stage of the litigation.

…….In Sciarratta, we held a plaintiff is excused from the tender requirement if he or she alleged the foreclosing entity lacked authority to foreclose on the property. (Sciarratta, supra, 247 Cal.App.4th at p. 565, fn. 10; see Yvanova, supra, 62 Cal.4th at p. 929, fn. 4.) Under this principle, the Parks have sufficiently alleged an exception to the tender requirement by their allegation that Aurora Loan Services lacked authority to foreclose on the Property.[3]

. . .

The court erred in sustaining the demurrer as to Aurora Loan Services and Nationstar on the quiet title claim. As we have explained, the Parks have alleged facts showing the foreclosure sale was void because the sale was allegedly instituted by a party with no ownership interest in the debt. After a void foreclosure sale, the former homeowner may bring a quiet title against the foreclosing entity and regain ownership of the property “at least where there are no intervening third parties.” (Sciarratta, supra, 247 Cal.App.4th at pp. 567-568; Glaski, supra, 218 Cal.App.4th at pp. 1100-1101.)

. . .

DISPOSITION

The judgment against Aurora Bank is affirmed.

The court is ordered to vacate the remaining portions of the judgment and enter a new order (1) as to Aurora Loan Services: (a) overruling the demurrer on the wrongful foreclosure, UCL, and quiet title claims; …..  (3) as to Nationstar: (a) overruling the demurrer on the quiet title claim ………

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