Hacker v. Homeward Residential, Inc.

• Citation: 236 Cal.Rptr.3d 790,26 Cal.App.5th 270
• Decision Date: 16 August 2018
• Docket Number: B278537
• Court: California Court of Appeals Court of Appeals
• Parties: Ron HACKER, as Trustee, etc., Plaintiff and Appellant, v. HOMEWARD RESIDENTIAL, INC., et al., Defendants and Respondents.

26 Cal.App.5th 270

236 Cal.Rptr.3d 790

Ron HACKER, as Trustee, etc., Plaintiff and Appellant,

v.HOMEWARD RESIDENTIAL, INC., et al., Defendants and Respondents.

B278537

Court of Appeal, Second District, Division 1, California.

Filed August 16, 2018

Law Office of Richard L. Antognini and Richard L. Antognini, Lincoln, for Plaintiff and Appellant.

Wright, Finlay & Zak, Jonathan D. Fink, and Charles C. McKenna, Newport Beach, for Defendants and Respondents Homeward Residential, Inc., Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-OPT 3, Asset-Backed Certificates, Series 2006-OPT 3, Western Progressive, LLC, Ocwen Loan Servicing, LLC, Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-2, Power Default Services, Inc., Brandy Berns, and Vicki Pospisil.

Jeffer Mangels Butler & Mitchell, Michael J. Hassen and Christopher H. Doyle, San Francisco, for Defendant and Respondent Sand Canyon Corporation.

JOHNSON, J.

Ron Hacker (Hacker), as successor trustee to the 1713 Stearns LaVerne Family Trust (Stearns), sued Homeward Residential, Inc., (Homeward) formerly known as American Home Mortgage Servicing, Inc. (AHMSI); Sand Canyon Corporation, formerly known as Option One Mortgage Corporation (Sand Canyon); Western Progressive, LLC (Western Progressive); Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-OPT 3, Asset-Backed Certificates, Series 2006-OPT 3 (Deutsche Bank); Ocwen Loan Servicing, LLC (Ocwen); Linda Greene; Brandy Berns; DOC X; Larraine Brown; Vicki Pospisil; Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-2 (Wells Fargo); Power Default Services, Inc. (Power Default); T.D. Service Company; AHMSI Default Services; and DOES 10 through 100 for claims arising from an allegedly void assignment of the deed of trust (DOT) on real property located at 1713-1717 Stearns Drive in Los Angeles, California (the property), and a failed short sale agreement. The trial court sustained the demurrer by Homeward, Deutsche Bank, Western Progressive, Ocwen, Wells Fargo, Power Default, Brandy Berns, and Vicki Pospisil to all causes of action; and the court sustained the demurrer by Sand Canyon to the third through eighth causes of action.

The trial court also denied Hacker’s request for leave to amend. On appeal, he contends he can amend his pleading to allege causes of action for wrongful foreclosure, fraud, slander of title, declaratory relief, unfair business practices, and cancellation of instruments against Homeward, Deutsche Bank, Western Progressive, Ocwen, Wells Fargo, Power Default, Brandy Berns, Vicki Pospisil, and Sand Canyon.¹

We find that the trial court abused its discretion in denying leave to amend. We therefore reverse.

FACTUAL SUMMARY

In 2006, Marcia Chaissions (Chaissions) obtained an $875,000 loan from Option One Mortgage Corporation (Option One). The loan was secured by a deed of trust against the property, which she acquired on February 2, 2006. On June 1, 2006, Option One transferred the loan to the Option One Mortgage Loan Trust 2006-2 (Option One Trust), a securitized investment trust, pursuant to a pooling and service agreement (PSA), under which Wells Fargo functioned as trustee and Option One as master servicer.

In December of 2007, Option One stopped originating new mortgage loans but continued to service its extant loans. On April 30, 2008, pursuant to a purchase and sale agreement dated March 17, 2008, Option One legally changed its name to Sand Canyon and sold its mortgage servicing portfolio to AHMSI.

On August 21, 2008, AHMSI assigned the DOT to Deutsche Bank as trustee for the certificate holders of the Soundview Home Loan Trust (Soundview Trust). On July 23, 2008, AHMSI Default Services, Inc. was named as the trustee on the DOT and, on July 31, 2009, Power Default became the trustee on the DOT.

Chaissions defaulted on the loan and T.D. Service Company recorded a notice of default on October 9, 2009. The notice reflects that T.D. Service Company recorded the instrument "as authorized agent for the beneficiary" and directed the borrower (Chaissions) to contact Deutsche Bank, as trustee for the Soundview Trust, care of AHMSI, if she wished to arrange payment to prevent foreclosure. T.D. Service Company recorded notices of trustee’s sale on January 11, 2010, June 20, 2011, and January 12, 2012.²

On May 29, 2012, AHMSI’s name was changed to Homeward Residential, Inc. On August 8, 2012, Marcia and Dennis Chaissions (collectively, Chaissionses),³ Homeward, and Stearns entered into a short sale agreement whereby Stearns would purchase the property and Homeward would release the loan. At the time, Estrelita Lane was the Stearns trustee and she signed the agreement. The terms of the agreement required the Chaissionses to deliver free and clear title to the property before August 31, 2012. The agreement did not close because the title company advised Stearns and the Chaissionses that there were "questionable title documents" from the August 21, 2008 assignment and the subsequent substitutions of trustee, notice of default, and notices of trustee’s sales.

On October 16, 2012, Lane filed a complaint against the Chaissionses, AHMSI, Homeward, Deutsche Bank and others. In her second amended complaint, she alleged multiple causes of action stemming from the failed short sale agreement, which included challenges to the August 21, 2008 assignment. On November 20, 2014, the Chaissionses entered into an out-of-court settlement agreement with Mark Meador, who had become the successor trustee to Stearns. Under the agreement, Meador would dismiss the entire action once the Chaissionses vacated the property and transferred it to Stearns via a grant deed. On January 29, 2015, the Chaissionses signed a grant deed, which granted "any and all of their interest" in the property to Meador, as trustee for Stearns. On December 18, 2015, Meador withdrew the complaint and the action was dismissed without prejudice.

On February 12, 2015, Western Progressive was named as trustee on the DOT. On August 10, 2015, Western Progressive recorded a notice of default and election to sell under deed of trust, directing the borrower to contact Deutsche Bank, as trustee for the Soundview Trust, if the borrower wished to arrange for payment in order to avoid foreclosure. Western Progressive recorded a notice of trustee’s sale on January 19, 2016.

The Soundview Trust acquired the property at a foreclosure sale on July 6, 2016; Western Progressive recorded the trustee’s deed upon sale on July 13, 2016 at 8:00 a.m. Hacker’s grant deed was recorded shortly thereafter on July 13, 2016; the record does not indicate who requested the recording.

TRIAL COURT PROCEEDINGS

On February 19, 2016, Hacker filed a complaint against AHMSI, Sand Canyon, Homeward, Western Progressive, Deutsche Bank, Ocwen, Linda Green, Brandy Berns, and Doc X. On April 4, 2016, Hacker filed a first amended complaint (FAC), adding Larraine Brown, Vicki Pospisil, Wells Fargo Bank, Power Default, T.D. Service Company, and AHMSI Default Services as defendants. The FAC alleged causes of action for: (1) breach of written contracts; (2) breach of the covenant of good faith and fair dealing; (3) wrongful, improper and fraudulent trustee sale; (4) fraud; (5) unfair business practices; (6) cancellation of void instruments; (7) slander of title; (8) declaratory relief; and (9) specific performance of contract. The first, second, and ninth causes of action were premised on Hacker’s claim that Respondents breached the terms of the DOT and short sale agreement. The remaining causes of action challenged the August 21, 2008 assignment of the DOT and subsequent recorded instruments, which he alleged were " ‘void’ " and a " ‘sham.’ "

Defendants filed a demurrer on May 17, 2016 and Sand Canyon filed a demurrer on May 19, 2016. On July 12, 2016, Hacker filed an "opposition to demurrer of defendants AHMSI, Inc.," along with a declaration in which he informs that court that Stearns acquired the property through a settlement agreement "whereby the Cha[i]ssionses assigned us their all rights [sic] they had affecting the property, including the defendants and the [p]roperty itself by way of a Grant Deed to the property signed and acknowledged on or about January 29, 2015."⁴ In the opposition, Hacker requested leave to amend the complaint in a brief paragraph that cites case law and statutory authority, but does not introduce any facts to show the trial court how he could have amended the complaint to state a valid cause of action. Hacker contemporaneously filed a request for judicial notice (RJN) of the November 20, 2014 settlement agreement, the January 29, 2015 grant deed, the trial court’s summary of the case, and the trustee’s deed upon sale.

Hacker filed his opposition to Defendants’ demurrer on July 14, 2016, which included two requests for leave to amend. The first appears in a brief paragraph wherein he alleges, "facts have developed to warrant amendment, amendment should be granted. Indeed, the very recent foreclosure has materially affected the ‘standing’ argument trumpeted by Defendants." The second request appears toward the middle of the opposition and merely repeats the same brief paragraph from the July 12, 2016 opposition in which he requests leave to amend. The opposition to Homeward’s demurrer does not include any declarations and does not mention the January 29, 2015 grant deed. Hacker filed a second RJN in conjunction with the opposition to Homeward’s demurrer in which he requests judicial notice of the same documents that were the topic of his first request along with a number of court documents from federal cases around the country against Larraine Brown, AHMSI, Homeward, Sand Canyon, and Ocwen.⁵ Hacker never opposed Sand Canyon’s demurrer.

On July 18, 2016, Defendants filed evidentiary objections, including an objection to the admission of Hacker’s grant deed on the grounds that it is...