TURNER v SETERUS | CA Appeals Court - the fact that the property was a community asset gives him standing to pursue all of the tort causes of action in the third amended complaint

Categorized | STOP FORECLOSURE FRAUD

TURNER v SETERUS | CA Appeals Court – the fact that the property was a community asset gives him standing to pursue all of the tort causes of action in the third amended complaint

TURNER v SETERUS | CA Appeals Court – the fact that the property was a community asset gives him standing to pursue all of the tort causes of action in the third amended complaint

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Filed 9/24/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

AMY ARLENE TURNER et al.,

Plaintiffs and Appellants,

v.

SETERUS, INC.,

Defendant and Respondent.

C079613

(Super. Ct. No. 34201400162567CUORGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, David I. Brown, Judge. Reversed with directions.

United Law Center, Danny A. Barak and Stephen J. Foondos for Plaintiffs and Appellants.

The Ryan Firm, Timothy M. Ryan, Michael W. Stolzman, Jr. for Defendant and Respondent.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of .parts I, IV, VI, VII and IX of the Discussion.

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In this wrongful foreclosure case, plaintiffs Amy Arlene Turner and Joseph Zeleny

sought damages from defendant Seterus, Inc. (Seterus) on the theory that Seterus had

“frustrated [their] lawful attempt, pursuant to [Civil] Code [section] 2924c, to cure their

default more than five days prior to the noticed foreclosure sale.” The trial court

sustained Seterus’s demurrer to their third amended complaint without leave to amend.

On appeal, plaintiffs contend the trial court erred. We agree in part and reverse

the judgment with instructions to the trial court to vacate its order sustaining Seterus’s

demurrer to the third amended complaint in its entirety without leave to amend and to

instead enter a new order sustaining the demurrer without leave to amend as to the causes

of action for intentional infliction of emotional distress and breach of contract, and

overruling the demurrer as to the causes of action for intentional and negligent

misrepresentation, negligence, wrongful foreclosure, and unlawful business practices.

FACTUAL AND PROCEDURAL BACKGROUND

With respect to Seterus,1 the third amended complaint (as supplemented by

material Seterus asked the trial court to take judicial notice of) alleges as follows:

Turner acquired title to the property that is the subject of this proceeding in 2001

as an unmarried woman. She married Zeleny in approximately 2003.

In 2006, Turner refinanced the loan on the property, taking out a new loan for

$260,000. Turner was the sole borrower on the note, and only she is listed on the deed of

trust. However, both plaintiffs contributed financially to the monthly payments on the

loan.

1 Plaintiffs also sued the original loan servicer, beneficiary, and trustee of the loan for various causes of action. The claims against those defendants are not implicated in this appeal.

2

After Turner lost her job in 2009, plaintiffs began having difficulty making the

monthly loan payments. Plaintiffs obtained a loan modification in 2010; however, the

loan servicer (at that time, Bank of America) repeatedly sent plaintiffs billing statements

for greater amounts than provided for under the modification agreement, which plaintiffs

could not afford. As a result, plaintiffs fell behind on the loan.

In October 2011, Seterus became the loan servicer. On February 9, 2012, a notice

of default and election to sell under deed of trust was recorded against the property. The

notice stated that the amount necessary to cure the default was $21,139.25. The notice

further stated as follows: “you may have the legal right to bring your account in good

standing by paying all of your past due payments plus permitted costs and expenses

within the time permitted by law for reinstatement of your account, which is normally

five business days prior to the date set for the sale of your property.” The notice

identified Seterus as the entity to contact to arrange for payment to stop the foreclosure

and provided a mailing address and phone number “[t]o find out the amount you must

pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure

for any other reason.”

On October 3, 2012, a notice of trustee’s sale was recorded against the property.

The notice stated that the property would be sold at auction on October 23.

On or about October 13, 2012, Zeleny called Seterus and inquired as to the amount

plaintiffs were in default. He spoke with an agent for Seterus, who would only identify

herself as “Stacey.” Before Stacey would speak with Zeleny, however, she required

Turner to authorize Zeleny to speak on Turner’s behalf. Turner got on the phone and told

Stacey that Zeleny was authorized to speak for her.

Stacey informed Zeleny that plaintiffs were in default in the amount of $30,800.

Plaintiffs had recently deposited $30,000 into their bank account, so Zeleny informed

Stacey that he would like to pay off the entire amount of the default. Stacey told him that

Seterus would not accept that amount to cure the default because plaintiffs were allowed

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to cure the default only if they were in the modification process, and since plaintiffs had

already been reviewed for a modification in the past five years, they could not receive a

modification. Zeleny pleaded with Stacey and tried to explain that all he wanted to do

was cure the default, but Stacey refused to accept payment.

With the trustee’s sale looming, and left with no other option, Turner filed for

chapter 7 bankruptcy. In the months following Turner’s bankruptcy discharge, Seterus

refused to work with plaintiffs on a foreclosure prevention solution. Ultimately, on

April 29, 2013, Fannie Mae (which at that time held the beneficial interest under the deed

of trust) purchased the property at the foreclosure sale.

On April 28, 2014, plaintiffs commenced this action against various defendants,

including Seterus. In August 2014, plaintiffs filed a first amended complaint. Seterus

demurred to that complaint. Before Seterus’s demurrer was heard, however, plaintiffs

filed a second amended complaint in response to the trial court’s ruling on a demurrer to

the first amended complaint filed by two other defendants (Bank of America and Fannie

Mae). As a result, plaintiffs did not oppose Seterus’s demurrer to the first amended

complaint, and the trial court sustained that demurrer with leave to amend.

Following the trial court’s ruling, plaintiffs filed a third amended complaint that

alleged 10 causes of action. Eight of those causes of action were directed at Seterus:

(1) intentional misrepresentation (second cause of action); (2) negligent

misrepresentation (third cause of action); (3) negligence (fourth cause of action);

(4) negligence per se (fifth cause of action); (5) intentional infliction of emotional distress

(sixth cause of action); (6) breach of contract (eighth cause of action); (7) wrongful

foreclosure (ninth cause of action); and (8) unlawful, unfair, and fraudulent business

practices in violation of Business and Professions Code section 17200 et seq. (tenth cause

of action). Plaintiffs also attached the following exhibits to their third amended

complaint: (1) written modification agreement; (2) corporate assignment of deed of trust;

and (3) notice of default and declaration of contract and due diligence.

4

Seterus demurred to the third amended complaint in January 2015. Plaintiffs

opposed the demurrer. In March 2015, the trial court sustained Seterus’s demurrer

without leave to amend.

As to Zeleny, the court concluded that he lacked standing to pursue any of the

causes of action in the third amended complaint because Turner was the only person

listed on the note and deed of trust on the property. The court then concluded that neither

plaintiff could pursue any of the causes of action in the complaint because the complaint

did not allege that either or both of them unconditionally tendered the full amount due

and owing on the loan. The court further concluded that it was “apparent . . . that [Turner

did not have] the ability to [tender the full amount owed], as she filed for bankruptcy.”

With respect to the individual causes of action alleged against Seterus (which

excluded only the first and seventh causes of action), the court offered the following

reasoning:

(1) The court sustained Seterus’s demurrer to the second cause of action (for

intentional misrepresentation) and the third cause of action (for negligent

misrepresentation) because plaintiffs failed to allege causation of their damages because

they failed to allege tender.

(2) The court sustained Seterus’s demurrer to the fourth and fifth causes of action

(for negligence and negligence per se) because Seterus, as servicer of the loan, did not

owe any duty beyond that of a conventional lender of money, and “[a]s a general rule, a

financial institution owes no duty of care to a borrower when the institution’s

involvement in the loan transaction does not exceed the scope of its conventional role as

a mere lender of money.”2

2 The court further sustained Seterus’s demurrer to the fifth cause of action (for negligence per se) because plaintiffs failed to allege tender of the entire indebtedness.

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(3) The court sustained Seterus’s demurrer to the sixth cause of action (for

intentional infliction of emotional distress) because “[t]he act of foreclosing on a home

(absent other circumstances) is not the kind of extreme conduct that supports [such a]

claim” and because Turner did not allege facts demonstrating that she suffered severe

emotional distress.

(4) The court sustained Seterus’s demurrer to the eighth cause of action (for

breach of contract) because plaintiffs did not allege “that they performed by tendering the

full accelerated amount due.”

(5) The court sustained Seterus’s demurrer to the ninth cause of action (for

wrongful foreclosure) because plaintiffs failed to allege tender.

(6) The court sustained Seterus’s demurrer to the tenth cause of action (for

unlawful, unfair, and fraudulent business practices in violation of Business and

Professions Code section 17200 et seq.) without further explanation.

The court subsequently entered judgment in favor of Seterus on April 24, 2015.

Plaintiffs timely appealed.

DISCUSSION

I

Standard Of Review

“ ‘In reviewing the sufficiency of a complaint against a general demurrer, we are

guided by long-settled rules. “We treat the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions or conclusions of fact or law.

[Citation.] We also consider matters which may be judicially noticed.” [Citation.]

Further, we give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. [Citation.] When a demurrer is sustained, we determine whether

the complaint states facts sufficient to constitute a cause of action.’ ” (Blumhorst v.

Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.) We may

6

affirm a trial court judgment on any basis presented by the record whether relied upon by

the trial court. (Ibid.)

II

Zeleny’s Standing

The trial court concluded that Zeleny lacked standing to pursue any of the causes

of action in the third amended complaint because Turner was the only person listed on

the note and deed of trust on the property. On appeal, plaintiffs contend the court erred in

this ruling because: (1) the property, although titled in Turner’s name only, was a

community asset because both plaintiffs contributed to the monthly payments on the loan;

and (2) plaintiffs intended the note and deed of trust to be in both of their names and

asked their broker to make that happen but did not realize until years later that the broker

did not make the change as promised. At most, plaintiffs contend, Zeleny might not have

standing to sue for breach of contract (because he was not a party to the loan, even

though they intended him to be), but the fact that the property was a community asset

gives him standing to pursue all of the tort causes of action in the third amended

complaint.

In response, Seterus argues that the property was not a community asset, but was

Turner’s separate property because she acquired it prior to the parties’ marriage. In their

reply brief, plaintiffs do not dispute that Turner acquired the property before her marriage

to Zeleny; instead, they contend the community had an interest in the property anyway

because community funds were used during the marriage to make payments on the loan.

And because the community had an interest in the property, Zeleny had an interest in the

property sufficient to give him standing in this action (with the possible exception of the

breach of contract cause of action).

We agree with plaintiffs that the allegations of the third amended complaint are

sufficient to establish that the community had an interest in the property. The complaint

alleges that “both Plaintiffs contributed financially to the monthly payments on the

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Subject Loan.” Construed liberally, we take this allegation to mean that both parties

contributed their community property earnings during the marriage to payments on the

loan principal, which, under California community property law, gave the community an

interest in what was otherwise Turner’s separate property. (See, e.g., Bono v. Clark

(2002) 103 Cal.App.4th 1409, 1421-1422 [“[w]hen community property is used to reduce

the principal balance of a mortgage on one spouse’s separate property, the community

acquires a pro tanto interest in the property”].)

Because, under the allegations of the third amended complaint, the community had

an interest in the property, at the very least Zeleny, as a member of the community, had

standing to pursue the tort causes of action asserted in the complaint to the extent those

causes of action alleged that Seterus’s conduct resulted in the loss of the property — and,

as a result, the community’s interest therein. “ ‘Every action must be prosecuted in the

name of the real party in interest, except as otherwise provided by statute.’ (Code Civ.

Proc., § 367.) The real party in interest has ‘ “an actual and substantial interest in the

subject matter of the action,” and stands to be “benefited or injured” by a judgment in the

action.’ [Citation.] ‘Plaintiffs have standing to sue if they or someone they represent

have either suffered or are threatened with an injury of sufficient magnitude to reasonably

assure the relevant facts and issues will be adequately presented.’ ” (Fladeboe v.

American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.) As a member of the

community, which had an interest in the property, Zeleny has an actual and substantial

interest in recovering tort damages for the loss of that property and stands to be benefitted

by a judgment in this action. Accordingly, the fact that Zeleny was not a party to the note

and deed of trust on the property does not deprive him of standing in this action, and the

trial court erred in concluding otherwise.

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III

The Tender Rule And Wrongful Foreclosure

Wrongful foreclosure is a common law tort claim. “The elements of a wrongful

foreclosure cause of action are: ‘ “(1) [T]he 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.” ’ ” (Sciarratta v. U.S. Bank

National Assn. (2016) 247 Cal.App.4th 552, 561-562; Crossroads Investors, L.P. v.

Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 782.)

The third element is commonly known as the tender rule. Where tendering is

required and not excused, a plaintiff seeking to set aside an irregular sale must allege

tender of the full amount of the loan to maintain any cause of action that either is based

on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Abdallah

  1. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109; Arnolds Management Corp.
  2. Eischen (1984) 158 Cal.App.3d 575, 579.)

Courts have applied equitable exceptions to the tender rule, such as: “(1) where

the borrower’s action attacks the validity of the underlying debt, tender is not required

since it would constitute affirmation of the debt; [citations] (2) when the person who

seeks to set aside the trustee’s sale has a counter-claim or set-off against the beneficiary,

the tender and the counter-claim offset each other and if the offset is greater than or equal

to the amount due, tender is not required; [citations] (3) a tender may not be required if it

would be ‘inequitable’ to impose such a condition on the party challenging the sale;

[citations] (4) tender is not required where the trustor’s attack is based not on principles

of equity but on the basis that the trustee’s deed is void on its face (such as where the

original trustee had been substituted out before the sale occurred)[;] [citations] [(5)] when

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the loan was made in violation of substantive law, or in breach of the loan agreement or

an agreement to modify the loan[;] [citations] [and (6)] when the borrower is not in

default and there is no basis for the foreclosure [citations].” (5 Miller & Starr, Cal. Real

Estate (4th ed. 2017) § 13:256, pp. 13-1101-1102.)

The trial court concluded that each cause of action in the third amended complaint

failed because plaintiffs did not allege actual and unconditional tender of the entire

amount of the indebtedness under the loan. Citing to Karlsen v. American Sav. & Loan

Assn. (1971) 15 Cal.App.3d 112, 117, the court stated, “[a] valid and viable tender of

payment of the indebtedness owing is essential to an action to cancel a voidable sale

under a deed of trust.” The court found “[t]his failure to do equity, despite asking for

equitable relief related to the foreclosure, bars all of the claims” in the third amended

complaint. Thus, it appears the trial court found the plaintiffs were not excused from

tendering the entire loan amount to maintain their wrongful foreclosure cause of action

and, because the other causes of action arose from the same allegations and sought

redress from that foreclosure, those “implicitly integrated” causes of action failed as well.

(Karlsen, at p. 121.)

Plaintiffs contend the trial court committed three errors in applying the tender rule

to their causes of action. “First, the trial court conflated an offer to tender with a

requirement of an actual physical payment.” “Second, the trial court improperly

concluded that the fact that . . . Turner filed for bankruptcy must have meant that

[plaintiffs] could not afford to cure any amount due, the default sum or the entire sum.”

Third, “the trial court erroneously assumed that [Civil Code section] 2924c requires a full

tender of the entire indebtedness under the loan.” We agree the trial court erred.

We address the third claim of error first. Seterus argues the trial court’s ruling is

consistent with a long line of cases requiring the tender to be the full amount due under

the loan (or note) for which the property was security, as stated in Arnolds Management

Corp. v. Eischen, supra, 158 Cal.App.3d 575; Karlsen v. American Sav. & Loan Assn.,

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supra, 15 Cal.App.3d 112; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89; Mendoza

  1. JPMorgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020; and Gaffney v. Downey

Savings & Loan Assn. (1988) 200 Cal.App.3d 1154. Those cases, however, arose in

circumstances where the borrowers sought to redeem the properties, not where they were

trying to reinstate their loans as provided under Civil Code section 2924c. Context is

important.

The Legislature has provided “a comprehensive framework for the regulation of a

nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.

[(Civ. Code, § 2924 et seq.)] The purposes of this comprehensive scheme are threefold:

(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy

against a defaulting debtor/trustor; (2) to protect the debtor/trustor from a wrongful loss

of the property; and (3) to ensure that a properly conducted sale is final between the

parties and conclusive as to a bona fide purchaser.” (Moeller v. Lien (1994) 25

Cal.App.4th 822, 830.) This statutory framework provides specific procedures in the

nonjudicial foreclosure sale process.

For example, “[d]uring the foreclosure process, the debtor/trustor is given several

opportunities to cure the default and avoid the loss of the property. First, the trustor is

entitled to a period of reinstatement to make the back payments and reinstate the terms of

the loan.” (Moeller v. Lien, supra, 25 Cal.App.4th at p. 830.) Specifically, the

debtor/trustor may reinstate the loan by tendering “the entire amount due, at the time

payment is tendered, with respect to (A) all amounts of principal, interest, taxes,

assessments, insurance premiums, or advances actually known by the beneficiary to be,

and that are, in default and shown in the notice of default, under the terms of the deed of

trust or mortgage and the obligation secured thereby, (B) all amounts in default on

recurring obligations not shown in the notice of default, and (C) all reasonable costs and

expenses [as provided], other than the portion of principal as would not then be due had

no default occurred.” (Civ. Code, § 2924c, subd. (a)(1).) Such tender “cure[s] the

11

default theretofore existing, and thereupon, all proceedings theretofore had or instituted

shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall

be reinstated and shall be and remain in force and effect, the same as if the acceleration

had not occurred.” (Ibid.) “Th[e] period of reinstatement continues until five business

days prior to the date of the sale, including any postponement.” (Moeller, at p. 830.) “In

addition to the right of reinstatement, the trustor also possesses an equity of redemption,

which permits the trustor to pay all sums due [on the note] prior to the sale of the

property at foreclosure and thus avoid the sale.” (Ibid.)

The requirements to exercise each of these rights — the right to reinstatement and

the right to redemption — are proportional to the value of the relief secured, and are not

interchangeable. (See 5 Miller & Starr, Cal. Real Estate, supra, at § 13:230, pp. 13-939-

13-940 [“A tender of the entire amount owing to the beneficiary . . . is called a

redemption . . . however, this does not ‘reinstate’ the loan but rather pays the debt in full

and requires a release of the deed of trust or mortgage.” In contrast, a “reinstatement,” on

“tender of the amount required for a cure of the default,” reinstates the obligation

“according to the original terms as if no default had occurred.”], fn. omitted.)

The tender rule arose in the context of redemption cases where the plaintiffs

sought to set aside the trustee’s sale for irregularities in the foreclosure sale notice or

procedure. (See, e.g., Arnolds Management Corp. v. Eischen, supra, 158 Cal.App.3d 575

[defect in notice of sale]; Karlsen v. American Sav. & Loan Assn., supra, 15 Cal.App.3d

112 [trustee sold property to corporation in which trustee was financially interested].)

“ ‘The rationale behind the [tender] 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

result in damages to the [borrower].’ ” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th

at p. 112.) “Allowing [borrowers] to recoup the property without full tender would give

them an inequitable windfall, allowing them to evade their lawful debt.” (Stebley v.

Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) Thus, the tender rule “is

12

based on the theory that one who is relying upon equity in overcoming a voidable sale

must show that he is able to perform his obligations under the contract so that equity will

not have been employed for an idle purpose.” (Dimock v. Emerald Properties (2000) 81

Cal.App.4th 868, 878; Arnolds Management Corp., at pp. 578-579 [court of equity will

not order performance of a “useless act”].)

The plaintiffs’ wrongful foreclosure cause of action does not arise from the right

to redeem the property based on an irregularity in the notice or procedure of the sale.

Rather, plaintiffs’ cause of action arises from their right to reinstate Turner’s loan and

their allegation that, but for Seterus’s failure to accept Zeleny’s tender of the $30,800,

Turner would have cured the default, which would have entitled Turner to reinstate the

loan and extinguished the basis for the trustee’s sale. The basis for plaintiffs’ wrongful

foreclosure cause of action is thus wholly different from the basis for redemption.

For similar reasons, the cases cited by the trial court and Seterus to support the

requirement of tender of the full amount of the loan do not apply to plaintiffs here. All

these cases involve different circumstances and do not address the statutory analysis that

governs this issue. In Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th

1052, the homeowner alleged the lender mailed her a loan modification agreement under

the Home Affordable Modification Program, and she signed, returned, and performed

under that agreement. The lender, however, never mailed the homeowner a signed copy

of the loan modification agreement. The homeowner learned the property had been sold

at auction even though she never received a notice of default or notice of trustee sale.

(Id. at pp. 1055-1056.) The homeowner was forced from her home and filed an action for

breach of contract and wrongful foreclosure. (Id. at p. 1056.) The trial court sustained

the defendants’ demurrer without leave to amend. (Ibid.) The court of appeal reversed.

(Id. at p. 1055.)

Pertinent to our discussion, the court explained the homeowner was not required to

allege tender because she properly alleged a cause of action for breach of contract of the

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modification agreement. (Chavez v. Indymac Mortgage Services, supra, 219 Cal.App.4th

at p. 1062.) She alleged the existence of an enforceable agreement and that defendants

breached the agreement by refusing payment. Thus, she “sufficiently alleged an

exception to the tender rule that the foreclosure sale was void because Defendants lacked

a contractual basis to exercise the power of sale as [her] original loan had been modified

under the [agreement] and [she] fully performed under the [agreement] until Defendants

breached the agreement by refusing payment.” (Id. at p. 1063.) Although the

homeowner also alleged improper notice of the trustee’s sale, which would otherwise be

subject to the tender requirement, the allegation did “not invalidate the remainder of th[e]

properly pled cause of action.” (Ibid.)

The court in Chavez cited to Bank of America v. La Jolla Group II (2005) 129

Cal.App.4th 706 in reaching its decision. In Bank of America, the beneficiary accepted

the homeowners’ tendered default payment on the loan but failed to notify the trustee that

the loan had been reinstated, and the foreclosure sale went forward. (Bank of America, at

  1. 709.) The beneficiary bank sued the party that successfully bid on the property at the

foreclosure sale, seeking to cancel the sale. The Bank of America court found “the

homeowners and the beneficiary bank had entered into an agreement to cure the default.

It followed that the beneficiary bank had no right to sell after that agreement and the

foreclosure sale was invalid.” (Barroso v. Ocwen Loan Servicing LLC (2012) 208

Cal.App.4th 1001, 1017.)

The court in Barroso v. Ocwen Loan Servicing LLC, supra, 208 Cal.App.4th 1001

also applied the principle in Bank of America. In Barroso, the homeowner alleged she

had an enforceable loan modification agreement with the beneficiary and that she made

all subsequent payments when they were due. (Barroso, at p. 1017.) The loan servicer

accepted the homeowners’ payments under the modification agreement, but nonetheless

proceeded with the foreclosure sale. (Id. at pp. 1004-1006.) The homeowner sued for,

among other things, wrongful foreclosure, alleging she was not in default under the

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modification agreement. (Id. at pp. 1006-1007.) The defendants demurred to the

complaint, arguing the homeowner failed to allege tender of the amounts due under the

mortgage. (Id. at p. 1007.)

The court found that, “[b]ased on [her] allegations, [the homeowner] ha[d] alleged

a basis for wrongful foreclosure under the principles applied in Bank of America v. La

Jolla Group II, supra, 129 Cal.App.4th at page 712. It was not necessary for [the

homeowner] to tender any amount to [the loan servicer] to forestall the foreclosure sale

because there was no default under the terms of the [agreement].” (Barroso v. Ocwen

Loan Servicing LLC, supra, 208 Cal.App.4th at p. 1017.) In other words, because the

homeowner alleged an enforceable agreement and that she performed in accordance with

her contractual obligations, the loan servicer had no contractual right to sell the property

and, therefore, the homeowner did not have to tender the full loan amount to maintain her

wrongful foreclosure cause of action.

Here, plaintiffs allege that Seterus, acting through its representative, Stacey,

wrongfully refused Zeleny’s tender of the amount necessary to cure the default on

Turner’s loan. Under Civil Code section 2924c, Turner had a statutory right, up to five

days before the noticed foreclosure sale, to stop the sale by tendering the amount due as

specified in subdivision (a)(1). A tender compliant with Civil Code section 2924c,

subdivision (a)(1) “cure[s] the default” such that all default proceedings “shall be

dismissed or discontinued and the obligation and deed of trust or mortgage shall be

reinstated and shall be and remain in force and effect, the same as if the acceleration had

not occurred.” (Civ. Code, § 2924c, subd. (a)(1), italics added.) Because the Legislature

used the words “shall” and “may” in close proximity to one another in the statute, we

may infer the Legislature intended the use of “shall” to be mandatory. (In re Richard E.

(1978) 21 Cal.3d 349, 353-354.)

Civil Code section 2924c thus limits the beneficiary’s contractual power of sale by

giving the trustor a right to cure a default and reinstate the loan within the stated time,

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even if the beneficiary does not voluntarily agree. (Bank of America v. La Jolla Group II,

supra, 129 Cal.App.4th at p. 712.) “ ‘The law does not require plaintiff to tender the

purchase price to a trustee who has no right to sell the property at all.’ ” (Alvarez v. BAC

Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 951.) To adequately plead a

cause of action for wrongful foreclosure, all plaintiffs had to allege was that they met

their statutory obligation by timely tendering the amount required by Civil Code

section 2924c to stop the foreclosure sale, but Seterus refused that tender and thus

allowed the foreclosure sale to go forward when Seterus should have accepted their

tender and canceled the sale. Plaintiffs did so. If Seterus had accepted the tender, which

Stacey stated was sufficient to cure the default, a rescission of the foreclosure sale and

reinstatement of the loan was mandatory, and the subsequent sale was without legal basis

and void, similar to the unlawful sales in Chavez and Barroso.

Under the circumstances alleged, tender of the full amount of the loan is

unnecessary. It would be nonsensical to require plaintiffs to tender the full amount of the

loan to maintain a wrongful foreclosure cause of action based on Seterus’s refusal to

accept the timely tender of the amount required under Civil Code section 2924c.

(Munger v. Moore (1970) 11 Cal.App.3d 1, 7-8 [failure to accept timely tender of amount

due to cure default may constitute wrongful foreclosure allowing a plaintiff to bring an

action for damages for the illegal sale resulting from the failure to accept the timely

tender].) Such a requirement would thwart the statutory intent of Civil Code

section 2924c by failing to “protect the debtor/trustor from a wrongful loss of the

property.” (Moeller v. Lien, supra, 25 Cal.App.4th at p. 830.) Accordingly, we find the

tender rule does not bar any of plaintiffs’ causes of action.

This conclusion leaves a few loose ends to wrap up regarding the wrongful

foreclosure cause of action. First, Seterus suggests that even if plaintiffs did not have to

tender the full amount of the indebtedness, they had to do more than offer to pay the

amount required to cure the default. In Seterus’s view, Civil Code section 2924c

16

obligated plaintiffs “to actually submit a payment to [Seterus], which they concede they

did not.”

We disagree that actual submission of a payment was necessary here for plaintiffs

to state a cause of action for wrongful foreclosure. As the trial court itself noted, “[a]

tender is an offer of performance . . . .” (Italics added.) (See Civ. Code, § 1485 [“[a]n

obligation is extinguished by an offer of performance, made in conformity to the rules

herein prescribed, and with intent to extinguish the obligation”].) Subdivision (a)(1) of

Civil Code section 2924c provides in pertinent part that “[w]henever all or a portion of

the principal sum of any obligation secured by deed of trust . . . has . . . been declared due

by reason of default in payment of interest or of any installment of principal . . . , the

trustor . . . may pay to the beneficiary . . . the entire amount due, at the time payment is

tendered . . . other than the portion of principal as would not then be due had no default

occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings

theretofore had or instituted shall be dismissed or discontinued and the obligation and

deed of trust . . . shall be reinstated and shall be and remain in force and effect . . . .”

Here, for purposes of Civil Code section 2924c, Zeleny effectively tendered payment of

the amount then due when he told Stacey that he would like to pay off the entire amount

of the default. Actual submission of a payment was not required.

This conclusion is bolstered by the legal maxim that “[n]o one can take advantage

of his own wrong.” (Civ. Code, § 3517.) On the facts alleged here, the only reason

plaintiffs did not make an actual payment of the entire amount of the default was because

Seterus’s representative, Stacey, told Zeleny that Seterus would not accept that amount to

cure the default because plaintiffs were not in the loan modification process. Seterus

cannot defeat the wrongful foreclosure cause of action by relying on its representative’s

wrongful refusal of the offer to pay the amount required under Civil Code section 2924c

to stop the foreclosure sale by arguing that plaintiffs never made an actual payment.

17

Consequently, Seterus’s argument that actual submission of a payment was required here

is without merit.

Seterus next argues that even if an offer of payment was sufficient, plaintiffs’

tender was ineffective because they judicially admitted that they did not have the ability

to cure the default, and they are judicially estopped from arguing otherwise. (See Civ.

Code, § 1495 [“[a]n offer of performance is of no effect if the person making it is not

able and willing to perform according to the offer”].) These arguments are also without

merit.

As the basis for its judicial admission argument, Seterus relies on the fact that in

her bankruptcy petition, filed fewer than 10 days after Zeleny offered to cure the default

in the sum of $30,800, Turner reported having only $23,245 in the bank.3 But even if the

schedule in Turner’s bankruptcy petition is treated as an admission that there was less

than $24,000 in plaintiffs’ bank accounts on October 22, 2012, that admission does not

establish that plaintiffs did not have $30,800 in their bank accounts approximately nine

days earlier, on or about October 13, 2012, when Zeleny talked to Stacey and offered to

pay the entire amount in default. Accordingly, Seterus’s judicial admission argument has

no merit.

Seterus’s judicial estoppel argument, which is also based on Turner’s bankruptcy

schedule, fares no better.4 Seterus admits that for judicial estoppel to apply, the party to

3 Seterus asks us to take judicial notice of the Voluntary Petition filed by Turner in the United States Bankruptcy Court for the Eastern District of California on October 22, 2012, and the Discharge of Debtor issued by that court on February 5, 2013. We deny the request for judicial notice because the documents are irrelevant to this appeal, as we explain.

4 Turner asks us to take judicial notice of the original complaint filed in this action, Seterus’s demurrer to that complaint, and her Ex Parte Motion to Reopen Case filed in the United States Bankruptcy Court for the Eastern District of California on April 22, 2014. We deny the request for judicial notice because the documents are irrelevant to

18

be estopped must have taken two positions that are “totally inconsistent.” (Aguilar v.

Lerner (2004) 32 Cal.4th 974, 986.) That element is not satisfied here because Turner’s

assertion that plaintiffs had less than $24,000 in their bank accounts on October 22, 2012,

is not necessarily inconsistent with Zeleny’s assertion that plaintiffs had at least $30,800

in the bank approximately nine days earlier. Consequently, Seterus’s judicial estoppel

argument also has no merit.5

Seterus next argues that, even if an offer of payment was sufficient and even if

plaintiffs had the ability to cure the default, Zeleny was not within the class of persons

entitled to reinstate the loan, and therefore his tender of the payment was of no legal

significance. This argument, too, is without merit. The third amended complaint

specifically alleges that before Stacey would speak with Zeleny, she required Turner to

authorize Zeleny to speak on Turner’s behalf, and Turner took the phone and told Stacey

that Zeleny was authorized to speak for her. When Zeleny informed Stacey that he would

like to pay off the entire amount of the default, he was therefore speaking for Turner —

the trustor under the deed of trust — who even Seterus admits had the right to reinstate the

loan under Civil Code section 2924c. Accordingly, the fact that the offer of payment was

made by Zeleny does not defeat plaintiffs’ cause of action for wrongful foreclosure.

this appeal dealing with the demurrer to plaintiffs’ third amended complaint. Plaintiffs sought judicial notice of these documents in response to Seterus’s judicial estoppel argument; however, as we explain, Seterus’s argument has no merit.

5 To the extent Seterus argues that plaintiffs are judicially estopped from pursuing the causes of action asserted in the third amended complaint because Turner did not originally list those causes of action as assets of her bankruptcy estate — even though she later reopened her bankruptcy proceeding, amended her schedules, and then obtained an order from the bankruptcy trustee abandoning those causes of action as assets of the bankruptcy estate — we decline to address that argument as it is limited to a footnote, not supported by adequate citations to the record on appeal, and not adequately developed. (See California Rules of Court, rule 8.204(a)(1)(B), (C).)

19

Having considered all of the arguments offered by Seterus on the point, we

conclude that plaintiffs have stated a viable cause of action for wrongful foreclosure and

the trial court erred in sustaining Seterus’s demurrer to that cause of action. We now turn

to the remaining causes of action in the third amended complaint that apply to Seterus.

IV

Intentional And Negligent Misrepresentation

The trial court sustained Seterus’s demurrer to the second cause of action (for

intentional misrepresentation) and the third cause of action (for negligent

misrepresentation) based on the conclusion that “in the absence of allegations of actual

tender, plaintiffs have failed to allege causation of their damages.” In addressing the

wrongful foreclosure cause of action, we have already explained why plaintiffs’ failure to

tender the full amount of Turner’s loan does not preclude them from maintaining these

causes of action. Accordingly, the sustaining of the demurrer as to the misrepresentation

causes of action cannot be upheld based on the reason the trial court gave for its ruling.

Seterus argues, however, that there are several other reasons why the third amended

complaint does not state viable causes of action for intentional or negligent

misrepresentation.

“The essential elements of a count for intentional misrepresentation are (1) a

misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and

justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a

count for negligent misrepresentation are the same except that it does not require

knowledge of falsity but instead requires a misrepresentation of fact by a person who has

no reasonable grounds for believing it to be true.” (Chapman v. Skype, Inc. (2013) 220

Cal.App.4th 217, 230-231.) “Each element in a cause of action for fraud or negligent

misrepresentation must be factually and specifically alleged. [Citation.] The policy of

liberal construction of pleadings is not generally invoked to sustain a misrepresentation

pleading defective in any material respect.” (Cadlo v. Owens-Illinois, Inc. (2004) 125

20

Cal.App.4th 513, 519.) The allegations must be sufficiently specific “to allow defendant

to understand fully the nature of the charge made.” (Roberts v. Ball, Hunt, Hart, Brown

& Baerwitz (1976) 57 Cal.App.3d 104, 109.)

Seterus argues the elements have not been met because plaintiffs did not properly

allege an actionable misrepresentation, that Stacey’s statement was false, that Stacey

knew the statement was false or that she had no reasonable basis for believing the

statement to be true, or how plaintiffs relied on the misrepresentation. These arguments

are unavailing.

To set the stage for the analysis, we note that, reading the complaint as a whole

(Blumhorst v. Jewish Family Services of Los Angeles, supra, 126 Cal.App.4th at p. 999),

plaintiffs allege Stacey’s representation — that Seterus would not accept $30,800 to cure

the default on the loan because plaintiffs could cure the default only if they were in the

modification process, and since plaintiffs had already been reviewed for a modification in

the past five years, they could not receive a modification — was a knowing or reckless

misrepresentation, or one made without a reasonable basis for believing it was true,

whether it was based on Seterus’s alleged policy or the law, entitling them to relief.

Seterus first argues Stacey’s statement is not actionable because it is a statement of

“opinion or law,” not fact, and, even if it was a representation of fact, it was not material.

Plaintiffs contend that what Stacey misrepresented to Zeleny was her “understanding of

[Seterus’s] policy, not her understanding of the law. The law simply demonstrates why

this representation was false.” Plaintiffs further argue Stacey’s representation that

Seterus would not accept plaintiffs’ payment was material because, but for her

representation, plaintiffs would have remitted payment and the loan would have been

reinstated. We focus on the actual allegations in the third amended complaint.

Addressing the first portion of Seterus’s argument, we note it is true that,

“[g]enerally, an actionable misrepresentation must be made as to past or existing facts”

(Borba v. Thomas (1977) 70 Cal.App.3d 144, 152) and, “absent special circumstances,

21

misrepresentations of law do not amount to actionable fraud” (Bledsoe v. Watson (1973)

30 Cal.App.3d 105, 110). The problem with Seterus’s argument is that it

mischaracterizes the nature of the representation.

Seterus argues “the representation at issue . . . solely concerns whether [Seterus]

accurately represented its understanding of its obligations under [Civil Code]

section 2924c.” In actuality, however, plaintiffs expressly identify the misrepresentation

as Stacey’s statement to Zeleny that Seterus would not accept $30,800 to cure the default

on the loan because plaintiffs could cure the default only if they were in the modification

process, and since plaintiffs had already been reviewed for a modification in the past five

years, they could not receive a modification. That alleged statement is not a statement of

opinion or law, but a statement of fact, i.e., Seterus will not accept your tender because

you are not in the modification process, nor can you be. This statement does not express

an opinion on whether Seterus was legally obligated to accept the tender or whether

plaintiffs had the legal ability or right to reinstate the loan, as Seterus contends.

Plaintiffs’ allegations relating to Civil Code section 2924c go to the falsity of the

statement, as we explain below.

As to Seterus’s second portion of the argument regarding the alleged immateriality

of the statement, it argues plaintiffs “failed to allege facts or provide argument as to why

the specific reason(s) given by [Seterus] as to why it allegedly would not accept the

alleged reinstatement was important or affected the transaction at issue.” It further states,

“[p]lainly, the only relevant consideration for [plaintiffs] was that the alleged

reinstatement was not being accepted, regardless of the reasons for same.” Plaintiffs

respond they adequately alleged that, “but for ‘Stacey’s’ representation that [Seterus]

could not accept [plaintiffs’] offer to reinstate the loan based on a bogus and likely non-

existent modification policy, [plaintiffs] would have remitted payment and the loan

would have been brought current.” We again focus on the allegations in the third

amended complaint. Plaintiffs alleged that, but for Stacey’s statement, they “would have

22

transferred the required $30,800.00 to cure their default.” This is sufficient to establish

the materiality of the alleged misrepresentation at the pleading stage in light of the

statutory duties and obligations set forth in Civil Code section 2924c.

Seterus next contends plaintiffs failed to allege facts demonstrating Stacey’s

statement was false, “i.e., that [Stacey’s] statements were not in accord with [Seterus’s]

own policies.” It argues plaintiffs merely alleged that the statement was false because it

was not in accord with Civil Code section 2924c, which is insufficient. These allegations

are sufficient to support plaintiffs’ allegation that Stacey’s statement was false because

plaintiffs had a legal right to cure the default despite not being in the loan modification

process, contrary to what Stacey said. Further, plaintiffs alleged Seterus cited “non-

existent rules regarding the ability to cure a default only when one is in modification

review” when it refused plaintiffs’ tender because its “main aim” was to foreclose on the

property. Plaintiffs reiterate, “Plaintiffs are informed and believe and thereon allege that

there is no such rule.” Thus, plaintiffs alleged that Stacey’s statement was false to the

extent she was purporting to base her statement on an internal policy because no such

policy existed. These allegations are sufficient to allow Seterus to fully understand the

nature of the charge being made against it. (Roberts v. Ball, Hunt, Hart, Brown &

Baerwitz, supra, 57 Cal.App.3d at p. 109.)

Seterus also contends that plaintiffs failed to adequately allege that Stacey knew or

should have known of the falsity, or that she had no reasonable basis for believing her

statement. Plaintiffs’ allegations that no such policy existed and that Civil Code

section 2924c expressly provided plaintiffs with the ability to cure the default regardless

of whether they were participating in a loan modification review are sufficient to satisfy

this element.

Seterus’s final argument is that plaintiffs “failed to plead specific facts indicating

how they relied on [Seterus’s] statement as to why it was purportedly rejecting . . .

Zeleny’s alleged offer to reinstate the loan.” It is unclear why Seterus believes plaintiffs

23

were required to specifically allege how it relied on the reason why Seterus rejected the

tender as opposed to reliance on the very fact that Seterus rejected the tender, and it cites

no authority for this proposition. In the third amended complaint, plaintiffs alleged that,

but for Stacey’s representation, they “would have transferred the required $30,800.00 to

cure their default.” This is sufficient.

For the foregoing reasons, we conclude plaintiffs stated viable causes of action for

intentional and negligent misrepresentation and that the trial court erred in sustaining

Seterus’s demurrer to those causes of action.

V

Negligence And Negligence Per Se

The trial court sustained Seterus’s demurrer to the fourth and fifth causes of action

(for negligence and negligence per se) based on the conclusion that Seterus, as servicer of

the loan, did not owe any duty beyond that of a conventional lender of money, and “[a]s a

general rule, a financial institution owes no duty of care to a borrower when the

institution’s involvement in the loan transaction does not exceed the scope of its

conventional role as a mere lender of money.”

Before we proceed further, we note that “the doctrine of negligence per se is not a

separate cause of action, but creates an evidentiary presumption that affects the standard

of care in a cause of action for negligence.” (Millard v. Biosources, Inc. (2007) 156

Cal.App.4th 1338, 1353, fn. 2.) Accordingly, we treat plaintiffs’ fourth and fifth causes

of action as alleging a single cause of action for negligence.

“Whether a duty of care exists is a question of law to be determined on a case-by-

case basis.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

The question here is whether Seterus owed a duty of care to plaintiffs that would support

a cause of action for negligence based on Seterus’s alleged rejection of Zeleny’s timely

attempt to pay the amount necessary to cure the default. The alleged duty supporting the

24

negligence claims is the statutory duty under Civil Code section 2924c to accept

plaintiffs’ full tender of the amount in default.

Seterus contends no duty can be found, relying on the same general rule offered by

the trial court — that “a financial institution owes no duty of care to a borrower when the

institution’s involvement in the loan transaction does not exceed the scope of its

conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan

Assn. (1991) 231 Cal.App.3d 1089, 1096.) Plaintiffs respond the question of duty in a

specific case must be determined by applying the factors set forth in Biakanja v. Irving

(1958) 49 Cal.2d 647, as we did in Nymark. (Nymark, at pp. 1098-1100.) They further

argue that, although the courts are split over whether a lender owes a duty of care in

negotiating or processing a loan modification (see Lueras v. BAC Home Loans Servicing,

supra, 221 Cal.App.4th at p. 67; Alvarez v. BAC Home Loans Servicing, LP, supra, 228

Cal.App.4th at p. 951), this case does not involve a loan modification. We agree that we

need not address the split relating to loan modification cases, but we also need not apply

the Biakanja factors because plaintiffs’ negligence claims arise from Seterus’s statutory

duty, not from an asserted common law duty.

“Statutes may be borrowed in the negligence context for one of two purposes:

(1) to establish a duty of care, or (2) to establish a standard of care.” (Elsner v. Uveges

(2004) 34 Cal.4th 915, 927-928, fn. 8; see also Evid. Code, § 669.) We note that our

Supreme Court, in I. E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281,

explained that “the Legislature intended to cover the entire subject area of nonjudicial

foreclosures by statute” to define the duties among and between the pertinent parties.

(Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 295.) Accordingly, to

the extent a negligence cause of action arises from a statutory duty under the nonjudicial

foreclosure statutes (Civ. Code, § 2924 et seq.), we believe the duty is sufficient to

support a negligence cause of action.

25

Here, plaintiffs allege they timely tendered an amount sufficient to cure the default

to Seterus, as provided under Civil Code section 2924c. Civil Code section 2924c,

subdivision (a)(1) provides that upon such timely and appropriate tender “all proceedings

theretofore had or instituted shall be dismissed or discontinued and the obligation and

deed of trust . . . shall be reinstated and shall be and remain in force and effect . . . .” As

explained above, the use of the word “shall” denotes a mandatory obligation.

Accordingly, plaintiffs alleged sufficient facts to establish a statutory duty of care to

support their negligence claims.

VI

Intentional Infliction Of Emotional Distress

The trial court sustained Seterus’s demurrer to the sixth cause of action (for

intentional infliction of emotional distress) because “[t]he act of foreclosing on a home

(absent other circumstances) is not the kind of extreme conduct that supports [such a]

claim” and because Turner did not allege facts demonstrating that she suffered severe

emotional distress. On appeal, plaintiffs contend the trial court erred on both of these

points. We agree with Seterus that plaintiffs did not allege facts sufficient to support an

intentional infliction of emotional distress cause of action.

“The elements of a cause of action for intentional infliction of emotional distress

are (1) the defendant engages in extreme and outrageous conduct with the intent to cause,

or with reckless disregard for the probability of causing, emotional distress; (2) the

plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and

outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or

severe emotional distress.” (Ragland v. U.S. Bank National Assn. (2012) 209

Cal.App.4th 182, 204.) “[T]he alleged conduct . . . ‘ “must be so extreme as to exceed all

bounds . . . usually tolerated in a civilized community.” ’ ” (Cochran v. Cochran (1998)

65 Cal.App.4th 488, 494.) Further, the requisite severe emotional distress must be such

that “no reasonable [person] in civilized society should be expected to endure it” and the

26

defendant’s conduct must be “ ‘ “intended to inflict injury or engaged in with the

realization that injury will result.” ’ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6

Cal.4th 965, 1001, 1004.)

We look to case law to define conduct which is sufficiently outrageous to satisfy

that particular element of the tort of intentional infliction of emotional distress. (See,

e.g., Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 908-909 [bank’s conduct

was sufficiently outrageous where it made misrepresentations to induce plaintiffs to

assign all past, present and future accounts receivable to the bank, then refused further

loans and forced plaintiffs to execute excessive guarantees and security agreements,

while bank employees publicly ridiculed plaintiffs, including the use of profanities];

compare Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009 [conduct not sufficiently

outrageous where foreclosing lenders breached oral agreement to foreclose on a vacant

property first where there were no allegations that lenders “threatened, insulted, abused or

humiliated” the plaintiffs].)

Plaintiffs rely on one case — Ragland — to support their claim, arguing that,

“[m]uch like in Ragland, in which Downey Savings proceeded with foreclosure despite

violating Cal. Civ. Code §2924(d), [Seterus] in the instant action proceeded with

foreclosure despite violating Cal. Civ. Code §2924c. Under Ragland, such conduct

would be sufficient.” The problem with plaintiffs’ argument is that any statutory

violation would give rise to a claim for intentional infliction of emotional distress, which

is a proposal we cannot endorse. The plaintiffs would have to allege that the violation

was done in an extreme or outrageous manner as to go beyond all bounds of decency and

to be regarded as atrocious and utterly intolerable in civilized community. (Cochran v.

Cochran, supra, 65 Cal.App.4th at pp. 494-495.)

Here, plaintiffs alleged that in response to Zeleny’s offer to cure the default on

Turner’s loan, Seterus “refused to accept the offer, citing non-existent rules regarding the

ability to cure a default only when one is in modification review.” In addition, plaintiffs

27

alleged that Seterus’s refusal of the offer to cure the default “was pre-textual, as

SETERUS had already decided that it wished to benefit from a foreclosure of the Subject

Property regardless of Plaintiffs[’] legal right to cure their default and regardless of the

emotional distress Plaintiffs would suffer from losing the home in which they raised their

children.” These allegations are distinguishable from those in Ragland and do not give

rise to the outrageous and extreme conduct necessary to support an intentional infliction

of emotional distress claim.

The factual distinctions between the allegations in the two cases do make a

difference. Accordingly, we conclude the trial court appropriately sustained the demurrer

to the cause of action for intentional infliction of emotional distress.

VII

Breach Of Contract

The trial court sustained Seterus’s demurrer to the eighth cause of action (for

breach of contract) because plaintiffs did not allege “that they performed by tendering the

full accelerated amount due.” On appeal, not even Seterus attempts to defend the trial

court’s reasoning. Instead, Seterus argues that: (1) it was not a party to the loan

agreement and thus cannot be held liable for breaching that agreement; and (2) plaintiffs

did not allege that Turner performed her obligations under the loan agreement and

therefore Seterus had no duty to perform. Seterus also argues that Zeleny was not a party

to the loan agreement.

The gist of plaintiffs’ breach of contract cause of action against Seterus was that

“when [Seterus] refused to accept Plaintiffs’ offer to cure their default, and then when it

foreclosed on the Subject Property, [Seterus] breached the original agreement between

Plaintiffs and the lender of the Subject Loan.” The problem is plaintiffs did not allege

that Seterus was a party to “the original agreement between [Turner] and the lender.” As

the loan servicer, Seterus may have been an agent of the original lender or its successor,

but “an agent cannot be held liable for breach of a duty which flows from a contract to

28

which he is not a party.” (Filippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th

1429, 1442-1443.)

In their reply brief, plaintiffs “do not deny that [Seterus] is correct on this point.”

They argue, however, that there is a provision in the deed of trust under which “any

obligations set forth in the note and Deed of Trust subsequent to Fannie Mae’s purchase

of the loan are assumed by the successor loan servicer,” i.e., Seterus. That provision

states: “If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other

than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will

remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not

assumed by the Note purchaser unless otherwise provided by the Note purchaser.” By

itself, however, this provision is not sufficient to show that Seterus, at any time, became a

party to “the original agreement between Plaintiffs and the lender.” Rather, it is

consistent with the idea that the loan servicer, acting as an agent of the lender (or the

lender’s successor), is responsible for performing the lender’s mortgage loan servicing

obligations to the borrower under the agency contract between the loan servicer and the

lender. This provision does not make the loan servicer a party to the agreement between

borrower and lender.

Because Seterus was not a party to the loan agreement, the trial court correctly

sustained Seterus’s demurrer to the cause of action for breach of contract.

VIII

Unlawful Business Practices

The trial court sustained Seterus’s demurrer to the tenth cause of action (for

unlawful, unfair, and fraudulent business practices in violation of Business and

Professions Code section 17200 et seq.) without explanation. Nevertheless, the court’s

likely basis for its ruling is not difficult to divine.

29

In their third amended complaint, plaintiffs alleged that “the unlawful acts and

practices of Defendants alleged herein constitute unlawful, unfair or fraudulent business

practices within the meaning of” Business and Professions Code section 17200. In

support of its demurrer to the tenth cause of action, Seterus argued that this cause of

action was “base[d] . . . on the legal theories asserted in the preceding claims. However,

as those causes of action fail, they cannot be utilized to state a claim under [Business and

Professions Code] section 17200. [I]f a predicate claim fails, so does the [Business and

Professions Code] section 17200 claim.” Given this argument, the trial court likely

sustained Seterus’s demurrer to this cause of action because the court had already

sustained the demurrer as to all of plaintiffs’ other causes of action. We conclude this

was error.

“ ‘Unlawful business activity’ proscribed under [Business and Professions Code]

section 17200 includes ‘ “anything that can properly be called a business practice and that

at the same time is forbidden by law.” ’ ” (Farmers Ins. Exchange v. Superior Court

(1992) 2 Cal.4th 377, 383.) “ ‘[A]n action based on Business and Professions Code

section 17200 to redress an unlawful business practice “borrows” violations of other laws

and treats these violations, when committed pursuant to business activity, as unlawful

practices independently actionable under [Business and Professions Code] section 17200

et seq. and subject to the distinct remedies provided thereunder.’ ” (Ibid.)

We have concluded that plaintiffs’ third amended complaint adequately states

causes of action for intentional and negligent misrepresentation, wrongful foreclosure and

negligence. Based on that conclusion, we likewise conclude that plaintiffs have stated a

cause of action under Business and Professions Code section 17200 et seq. Paraphrasing

Seterus’s argument, because some of plaintiffs’ predicate claims are valid, their Business

and Professions Code section 17200 claim is valid. Accordingly, the trial court erred in

sustaining Seterus’s demurrer to the cause of action under Business and Professions Code

section 17200 et seq.

30

IX

Leave To Amend

Plaintiffs contend the trial court abused its discretion by denying them leave to

amend their third amended complaint. Because we reverse the trial court’s order with

respect to the causes of action for intentional and negligent misrepresentation,

negligence, wrongful foreclosure, and unlawful business practices, we only consider

whether plaintiffs showed that they could amend the complaint to state valid causes of

action for intentional infliction of emotional distress and breach of contract — those

causes of action to which the demurrer was properly sustained. In making this argument,

however, plaintiffs do not say how they would amend their complaint as to these two

causes of action. This omission is fatal. “To meet the plaintiff’s burden of showing

abuse of discretion, the plaintiff must show how the complaint can be amended to state a

cause of action.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222

Cal.App.3d 1371, 1386.) Having not attempted such a showing here, plaintiffs have

failed to show any abuse of discretion by the trial court.

DISPOSITION

The judgment is reversed, and the case is remanded to the trial court with

instructions to vacate its order sustaining Seterus’s demurrer to the third amended

complaint in its entirety without leave to amend and to instead enter a new order

sustaining the demurrer without leave to amend as to the causes of action for intentional

infliction of emotional distress and breach of contract, and overruling the demurrer as to

the causes of action for intentional and negligent misrepresentation, negligence, wrongful

31

foreclosure, and unlawful business practices. Plaintiffs shall recover their costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(1), (3), (5).)

/s/ , Robie, Acting P. J.

We concur:

/s/ Hoch, J.

/s/ Renner, J.

32

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