Grant v. Bank of Am., N.A.

• Decision Date: 24 November 2020
• Docket Number: G058111
• Court: California Court of Appeals Court of Appeals
• Parties: GAVIN LESTER GRANT, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., Defendant and Respondent.

GAVIN LESTER GRANT, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., Defendant and Respondent.

G058111

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

November 24, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2018-00993609)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Affirmed.

Gavin Lester Grant, in pro. per., for Plaintiff and Appellant.

McGuire Woods, Leslie M. Werlin and Adam F. Summerfield for Defendant and Respondent.

* * * Describing the operative complaint as "garbled, highly repetitive, full of citations to irrelevant laws and doctrines, and overlaid with a layer of 'sovereign citizen' references," the court sustained a demurrer to plaintiff Gavin Lester Grant's complaint arising from an attempted nonjudicial foreclosure of his residence. It sifted through the chaff to discern three causes of action against defendant Bank of America, N.A. (Bank of America): trespass, breach of contract, and fraud. It held none were properly pleaded and dismissed the complaint with prejudice. The court did not err.

The complaint revolves around plaintiff's gimmicky ploy to avoid paying his mortgage. When plaintiff defaulted, he concocted a "Banker's Promissory Note," which, according to plaintiff, extinguished the note and deed of trust on his residence in exchange for an unsecured debt. Obviously, Bank of America would never agree to that, so he slipped in the following term: The note was automatically accepted if Bank of America did not return it within two days of receiving it. Bank of America did not respond. The gist of plaintiff's claim is that all subsequent steps taken to enforce the original note were illegal because it and the deed of trust had been extinguished.

Nonsense. The "Banker's Promissory Note" is obviously an unacceptable tender of the debt plaintiff owed and the complaint does not otherwise allege any wrongful conduct. We affirm the judgment.

ALLEGATIONS

Plaintiff owns a residence in the City of Orange. In November 2007, plaintiff took out a secured loan on the residence, which included an adjustable rate note and deed of trust. Plaintiff defaulted on the loan. In December 2015, Clear Recon Corp. (Clear Recon), the trustee on the deed of trust, recorded a notice of default. In March 2016, Clear Recon recorded a notice of trustee sale. That same day, Clear Recon posted a notice of trustee sale on plaintiff's garage door (which is the basis for the trespassclaim). For reasons that are unclear in the complaint, the foreclosure did not proceed at that time.¹

Meanwhile, plaintiff came up with a plan.

First, on September 6, 2016, he acquired 10 shares of an entity called "Private Banker National Banking Association," a self-described "Common Law National Banking Association."

A couple of weeks later, apparently empowered by his membership in the alleged private banking association, he drafted a $1.5 million "Banker's Promissory Note" (the Banker's Note). The role of the "Private Banker National Banking Association" is not clear from our reading of the complaint, except to note that the Banker's Note is payable by "Gavin Lester Grant, Private Banker, I.D. Number: 000870338037," which in turn raises the question whether plaintiff intended the "Private Banker National Banking Association," instead of himself personally, to be obligated on the Banker's Note. In any event, the note, by its terms, was deemed accepted if not returned within two banking days. It required plaintiff to pay $10,000 per month on the seventh day of each month. Except there was a catch: The holder was required to come to plaintiff's personal residence to pick up the payment.

That same day, plaintiff wrote a letter to the chief financial officer (CFO) of Bank of America, which stated, "Find enclosed negotiable security instrument, full satisfaction of the claimed loan and final settlements to, BANK OF AMERICA, N.A., BEARER or HOLDER as Final payoff, Discharge of debt, CASE NO. 000870338037"²

One week later, on September 28, 2016, plaintiff visited a Bank of America branch office in the City of Orange and handed the Banker's Note and correspondence toa middle manager (specifically, the "Financial Center Manager" for the branch). The middle manager wrote "received and accepted" on both of the documents.³

The due date of the first scheduled payment on the Banker's Note came and went, and, to no one's surprise, Bank of America did not send a representative to plaintiff's residence to pick up the first payment. The following day, plaintiff wrote Bank of America's CFO to inform him that since no one had come to pick up the payment, his debts were discharged.

Bank of America never adjusted his original loan balance to reflect the alleged payment in full by the Banker's Note.

PROCEDURAL POSTURE

Plaintiff filed the present suit in May 2018. The operative second amended complaint asserts causes of action for trespass, breach of contract, and fraud. In a thorough and detailed ruling, the court sustained Bank of America's demurrer without leave to amend. Plaintiff timely appealed from the ensuing dismissal.

DISCUSSION

Rather than attempt to respond to each of the assertions in plaintiff's sprawling opening brief, we will confine our analysis to the merits of the causes of action.⁴ We review the court's ruling on the demurrer de novo. (Tamas v. Safeway, Inc. (2015) 235 Cal.App.4th 294, 298.)

Most of plaintiff's complaint is focused on the supposed discharge of his note and deed of trust by the unsecured Banker's Note. The gist of his claim is that since the original note and deed of trust were extinguished, any attempt to enforce the original note was unlawful.

The Banker's Note, however, is nothing more than an unenforceable attempt at a scam. Why would a bank swap a secured note for an unsecured note from a debtor who was already in default? Answer: It would not. The whole point of the security is to mitigate the default. Plaintiff seems to have realized that. So rather than overcome the insurmountable obstacle of reaching an actual meeting of the minds, plaintiff concocted various ploys to try to defraud the bank of its security interest, such as a requirement that Bank of America return the Banker's Note within two days or be deemed to have accepted it. But that contractual term suffers a fatal flaw: It is only enforceable if accepted. And "[s]ilence in the face of an offer is not an acceptance, unless there is a relationship between the parties or a previous course of dealing pursuant to which silence would be understood as acceptance. [Citations.] No such relationship orcourse of dealing is alleged." (Southern Cal. Acoustics Co. v. C. V. Holder, Inc. (1969) 71 Cal.2d 719, 722, italics added.) Thus, the Banker's Note was never accepted.

This is true notwithstanding the allegation that a middle manager at a branch office signed the Banker's Note as "received and accepted by." We do not interpret that language as an acceptance of the terms of a contract. And even if we did, there is no allegation in the complaint that the middle manager had authority to modify the note and deed of trust on behalf of Bank of America. (See Snukal v. Flightways Manufactoring, Inc. (2000) 23 Cal.4th 754, 779 (["the party seeking to enforce a contract with a corporation generally has the burden of establishing the contracting officer's authority to bind the corporation"].)⁵ It is common knowledge that large banks have an entire unit of the company dedicated to mortgages, and a lengthy review process for any mortgage modifications. The middle manager is described in the complaint as the "Financial Center Manager" of a branch office—a title that does not suggest any authority over home loan modifications.

Finally, even if the Banker's Note had been accepted in the contractual sense, it says nothing about a deed of trust. It is simply an unfettered obligation of plaintiff to pay Bank of America $1.5 million. The only tie-in of the Banker's Note to the deed of trust is the letter plaintiff wrote to Bank of America's CFO claiming to tender the Banker's Note in discharge of the mortgage. But the CFO never responded to that letter.

Plaintiff claims Bank of America has waived the right to object to plaintiff's tender of the Banker's Note, citing Code of Civil Procedure section 2076,which...