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MARTIN v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
RENEÉ L. MARTIN, Plaintiff and Appellant,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. et al., Defendants and Respondents.
No. A129937.
Court of Appeals of California, First District, Division Three.
Filed January 31, 2012.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSMcGUINESS, P.J. Reneé L. Martin (appellant), in pro per, brought an action against Mortgage Electronic Registration Systems, Inc., Bank of America Corp., Bank of New York, ReconTrust Company, and Countrywide Home Loans, Inc. (together, respondents) after she defaulted on a secured real estate loan and foreclosure proceedings were initiated. The trial court sustained respondents' demurrer without leave to amend and granted their motion to strike appellant's "request for attorney's fees, punitive damages and damages for emotional distress." Appellant contends the trial court erred in sustaining the demurrer without leave to amend because respondents had no legal authority to initiate foreclosure proceedings. She also contends the trial court erred in granting the motion to strike because her complaint "is proper and does not need to be . . . amended; nothing should be stricken from [appellant's] pleadings." We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUNDThe following facts are taken from the complaint and from documents of which the trial court took judicial notice.1 In December 2004, appellant borrowed $290,000 from lender WMC Mortgage Corp. (WMC) to finance the purchase of real estate located in Fairfield, California (the Property). The Deed of Trust identified WMC as the lender and Westwood Associates as the trustee. It identified Mortgage Electronic Registration Systems, Inc. (MERS) as "acting solely as a nominee for Lender and Lender's successors and assigns," and stated that MERS was "the beneficiary under this Security Instrument." The Deed of Trust further stated that "Borrower [i.e., appellant] understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument." On August 11, 2008, ReconTrust Company (ReconTrust), acting as an agent for MERS, filed a Notice of Default and Election to Sell Under Deed of Trust (the Notice of Default) in the Solano County Recorder's Office. According to the Notice of Default, appellant owed $10,969.66 as of August 7, 2008. On March 2, 2010, MERS recorded a Substitution of Trustee substituting ReconTrust in place of Westwood Associates as the trustee on the Deed of Trust. That same day, ReconTrust recorded a Notice of Trustee's Sale, notifying appellant that the Property might be sold at a public sale unless he took action to protect the Property. The total unpaid balance with interest and various costs was $321,274.47. On March 15, 2010, appellant, in pro per, filed a complaint against respondents alleging the following causes of action: (1) fraud and deceit; (2) unclean hands; (3) slander to title; (4) wantonness; and (5) negligence. According to the complaint, MERS, "c/o Countrywide Home Loans, Inc.," and ReconTrust initiated the foreclosure action despite the fact that they "did not then or does not now possess any licenses which would regulate its conduct by the State of California. Therefore, these entities are operating unlawfully by fraudulent practices and techniques in the State of California." Appellant further alleged the Notice of Default was "invalid" because MERS, Countrywide Home Loans, Inc. (Countrywide), and ReconTrust were not in the chain of title.
1. On appeal, appellant asks us to take judicial notice of "the national epidemic of foreclosures" and "the fraud that is generally well known, particularly with these same Respondents . . . forcing homeowners from their homes by submitting fraudulent documents (affidavits) to . . . Courts with the intent to foreclose on the property unlawfully." Although appellant asked the trial court to take judicial notice of a settlement agreement the California Attorney General reached with Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Full Spectrum Lending, Inc., the record does not show the trial court granted the request or that it considered the document in sustaining the demurrer and granting the motion to strike. To the extent appellant is requesting that we take judicial notice of the settlement agreement, we decline to do so. Even if we were to take judicial notice of its existence, judicial notice does not extend to its contents. Even if we were to take judicial notice of its existence, judicial notice does not extend to its contents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 ["While courts may notice official acts and public records, `we do not take judicial notice of the truth of all matters stated therein'"], overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Further, even if we were to assume the matters stated in the document were true, appellant has provided no explanation as to how this information supports her claims. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 ["any matter to be judicially noticed must be relevant to a material issue"].)
2. The Gomes Court explained: "`MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of record for participating members through assignment of the members' interests to MERS. MERS is listed as the grantee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record. MERS is compensated for its services through fees charged to participating MERS members.' [Citation.] `A side effect of the MERS system is that a transfer of an interest in a mortgage loan between two MERS members is unknown to those outside the MERS system.' [Citation.]" (Gomes, supra, 192 Cal.App.4th at p. 1151.)
3. Appellant also alleged in her first cause of action that the Notice of Trustee Sale did not "bear any signature, which ma[de] it defective," and that Bank of America unlawfully broke and entered the Property and posted a note on her window. She provides no legal authority or argument in support of her claim that these acts constituted fraud and deceit. (Conroy v. Regents of Univ. of Calif. (2009) 45 Cal.4th 1244, 1255 [elements of fraud are: (1) a misrepresentation; (2) with knowledge of its falsity; (3) with the intent to induce another's reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damage].) She also provides no legal authority or argument in support of her claim that respondents had no authority to initiate foreclosure proceedings because they were not licensed to conduct business in California. By statute, respondents are not required to obtain licenses because the creation of "evidences of debt or mortgages, liens or security interests on real or personal property" is an exempted activity. (Corp. Code, §§ 191, subd. (c)(7), 2105, subd. (a).)
4. Appellant does not present any argument or legal authority challenging the trial court's ruling that her second cause of action for unclean hands is not the basis of a cause of action and that her fourth cause of action for "wantonness" fails because no such cause of action exists. We therefore will not address whether the trial court erred in sustaining the demurrer as to these causes of action.
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