Melgar v. Deutsche Bank Nat. Trust Co.

Filed 1/4/16 Melgar v. Deutsche Bank National Trust CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
SONI MELGAR,
Plaintiff and Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY et al.,
Defendants and Respondents.
G050257
(Super. Ct. No. 30-2012-00607059)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Geoffrey
T. Glass, Judge. Affirmed.
Soni Melgar, in pro. per., for Plaintiff and Appellant.
Wright, Finlay & Zak, T. Robert Finlay and Lukasz I. Wozniak for
Defendants and Respondents.

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Soni Melgar, in propria persona,1 brought an action against her lender and
other financial institutions arising from her 2010 default on a loan of her residence.
Melgar maintains the trial court erred in sustaining without leave to amend a demurrer to
her third amended complaint (TAC) and summary judgment on the remaining causes of
action. We conclude her contentions lack merit, and we affirm the judgment.
I
On May 12, 2005, Melgar executed an adjustable rate note (Note) secured
by a deed of trust (DOT), which was recorded against the real property located at 1206
Dorset Lane in Costa Mesa, California. The Note was secured in favor of New Century
Mortgage Corporation (New Century). In June 2005, the beneficial interest under the
Note and the DOT was transferred to Deutsche Bank National Trust Company
(Deutsche), as indenture trustee, and in July 2007, the servicing rights to Melgar’s loan
were transferred to Carrington Mortgage Services, LLC (CMS). Four years later, in July
2011, Melgar defaulted on the loan.
We take the following facts from the operative TAC in this action. On July
16, 2011, Melgar missed her scheduled mortgage payment and immediately telephoned
CMS and stated she had been “cut off financially by her estranged spouse” and divorce
attorney represented that she would receive spousal support and a “settlement sufficient
to remedy the arrears.” Melgar claimed she was also in the process of “rebooting her
licensed private investigation business.” CMS assured her it would “work with her and
to not worry.”
1 Although a self-represented litigant is not excused from complying with the
rules governing appropriate pleading practice (see Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984 [“mere self-representation is not a ground for exceptionally lenient
treatment”]), whenever possible, we do not strictly apply technical rules of procedure in a
manner that deprives litigants of a hearing. (Cf. Alshafie v. Lallande (2009)
171 Cal.App.4th 421, 432 [“we carefully examine a trial court order finally resolving a
lawsuit without permitting the case to proceed to a trial on the merits”].)

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On August 5, 2011, Melgar received in the mail notification of an intent to
foreclose. On August 19, 2011, Melgar spoke with “Amy,” a CMS representative, who
reassured her CMS would work with her. Amy referred Melgar to Ric Frataccia who
repeated he would work with Melgar and indicated he could possibly refinance the loan
at a lower interest rate. Frataccia stated he would mail Melgar the required paperwork
and instructed Melgar to contact him when she received it. Frataccia did not mention any
other options or remedies to foreclosure.
Melgar claimed several CMS agents reassured her there was no foreclosure
sale pending and to submit the requested documents. Melgar submitted documentation.
On January 20, 2012, Melgar called and spoke to “Mike,” a CMS representative, about a
“NOTS” she had received. Mike advised Melgar her loan was not being modified or
being evaluated for modification. He stated the house would be sold and CMS was not
interested in any of the other remedies Melgar suggested. Mike refused to answer
questions about the amount of arrearages. He used “abrasive and derogatory language”
and rudely hung up on Melgar.
On February 15, 2015, Melgar sent CMS a qualified written request
(QWR). Seven days later, on February 22, the property was auctioned and because there
was no offer on the minimum bid, “a NOTS was recorded” in favor of Deutsche. On
February 23, Melgar received two notices to quit. On February 29, Melgar sent a second
copy of her QWR and requested clarification of the two notices to quit.
In early March 2012, Melgar received written confirmation CMS received
the QWR. At the end of March 2012, CMS sent Melgar notification it was not the
originator of the loan and Deutsche held the note. In April, Deutsche filed an unlawful
detainer action against Melgar.
The operative TAC alleges the following causes of action: (1) wrongful
foreclosure, (2) fraud, (3) promissory estoppel, (4) violations of California Rosenthal Fair

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Debt Collection Practices Act (RFDCPA), (5) violations of the Fair Employment and
Housing Act (FEHA), (6) unfair and deceptive business practices UCL (UBP,)
(7) negligence, (8) slander of title, (9) intentional infliction of emotional distress (IIED),
(10) quiet title, (11) declaratory relief, and (12) breach of oral executed agreement.
CMS and Deutsche demurred to the TAC. The trial court sustained the
demurrer without leave to amend as to claims for wrongful foreclosure, violations of the
RFDCPA, violations of FEHA, slander of title, quiet title, and declaratory relief. It
overruled the demurrer as to the causes of actions for fraud, promissory estoppel, UBP,
negligence, IIED, and breach of oral executed contract.
Next, CMS and Deutsche filed motions for summary judgment, or in the
alternative, for summary adjudication of issues. The court granted the summary
judgment and on July 14, 2014, entered a judgment in favor of CMS and Deutsche.
Melgar challenges the demurrer and summary judgment rulings.
II
A. Home Affordable Mortgage Program (HAMP)
“As authorized by Congress, the United States Department of the Treasury
implemented the [HAMP] to help homeowners avoid foreclosure during the housing
market crisis of 2008. ‘The goal of HAMP is to provide relief to borrowers who have
defaulted on their mortgage payments or who are likely to default by reducing mortgage
payments to sustainable levels, without discharging any of the underlying debt.’
[Citation.]” (West v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 786
(West).)
The program was best explained in Wigod v. Wells Fargo Bank, N.A. (7th
Cir. 2012) 673 F.3d 547, 556-557 (Wigod). “In response to rapidly deteriorating
financial market conditions in the late summer and early fall of 2008, Congress enacted
the Emergency Economic Stabilization Act, P.L. 110-343, 122 Stat. 3765. The
centerpiece of the Act was the Troubled Asset Relief Program (TARP), which required

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the Secretary of the Treasury, among many other duties and powers, to ‘implement a plan
that seeks to maximize assistance for homeowners and . . . encourage the servicers of the
underlying mortgages . . . to take advantage of . . . available programs to minimize
foreclosures’ 12 U.S.C. § 5219(a). Congress also granted the Secretary the authority to
‘use loan guarantees and credit enhancements to facilitate loan modifications to prevent
avoidable foreclosures.’ [Citation.] [¶] Pursuant to this authority, in February 2009 the
Secretary set aside up to $50 billion of TARP funds to induce lenders to refinance
mortgages with more favorable interest rates and thereby allow homeowners to avoid
foreclosure. The Secretary negotiated Servicer Participation Agreements (SPAs) with
dozens of home loan servicers . . . . Under the terms of the SPAs, servicers agreed to
identify homeowners who were in default or would likely soon be in default on their
mortgage payments, and to modify the loans of those eligible under the program. In
exchange, servicers would receive a $1,000 payment for each permanent modification,
along with other incentives. The SPAs stated that servicers ‘shall perform the loan
modification . . . described in . . . the Program guidelines and procedures issued by the
Treasury . . . and . . . any supplemental documentation, instructions, bulletins, letters,
directives, or other communications . . . issued by the Treasury.’ In such supplemental
guidelines, Treasury directed servicers to determine each borrower’s eligibility for a
modification by following what amounted to a three-step process:
“First, the borrower had to meet certain threshold requirements, including
that the loan originated on or before January 1, 2009; it was secured by the borrower’s
primary residence; the mortgage payments were more than 31 percent of the borrower’s
monthly income; and, for a one-unit home, the current unpaid principal balance was no
greater than $729,750.
“Second, the servicer calculated a modification using a ‘waterfall’ method,
applying enumerated changes in a specified order until the borrower’s monthly mortgage
payment ratio dropped ‘as close as possible to 31 percent.’

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“Third, the servicer applied a Net Present Value (NPV) test to assess
whether the modified mortgage’s value to the servicer would be greater than the return on
the mortgage if unmodified. The NPV test is ‘essentially an accounting calculation to
determine whether it is more profitable to modify the loan or allow the loan to go into
foreclosure.’ [Citation.] If the NPV result was negative—that is, the value of the
modified mortgage would be lower than the servicer’s expected return after foreclosure—
the servicer was not obliged to offer a modification. If the NPV was positive, however,
the Treasury directives said that ‘the servicer MUST offer the modification.’
Supplemental Directive 09-01.” (Wigod, supra, 673 F.3d at pp. 556-557, fn. omitted.)
The details of the HAMP program have been revised many times. “The
most recent compilation of program requirements for non-GSE mortgagees and servicers
is the Making Home Affordable Program Handbook for Servicers of Non-GSE
Mortgages (4.3), dated September 16, 2013 (hereinafter cited as MHA Handbook 4.3)
available on-line at
https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/mhahandbook_43.pdf.
A table listing several dozen “supplemental directives” to implement HAMP can be
found at pages 17-20 of the MHA Handbook 4.3.” (5 Miller & Starr, Cal. Real Estate
(4th ed. 2015) § 13:180, p. 13-667, fn. 5.)
HAMP “does not provide an individualized remedy that can be enforced
affirmatively by homeowners whose lenders do not offer a palatable modification option;
rather, these federal programs operate by providing incentives to institutions and do not
mandate legal compliance with a specific loan-by-loan standard for obligatory
modifications.” (5 Miller & Starr, Cal. Real Estate (4th ed. 2015) § 13:180, p. 13-667,
fn. omitted.) However, a homeowner may acquire enforceable contractual rights by
entering into a trial loan modification contemplated by HAMP, and “the processes and
standards provided by these programs are relevant in determining contract rights that
exist or may arise from negotiations between a borrower and lenders. In addition, even if

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the federal program does not provide a cause of action, the lender’s conduct in
negotiating and contracting with borrower is subject to state law remedies.” (Ibid., fns.
omitted.)
In the Wigod case, the court clarified HAMP “does not preempt or
otherwise displace state law causes of action. The court also recognized a borrower may
assert state law claims, such as breach of contract, based directly on a TPP agreement
because the borrower is in direct privity with the lender or loan servicer. [Citation.]”
(West, supra, 214 Cal.App.4th at p. 788.) In her briefing, Melgar clarifies she is not
attempting to allege “a HAMP private cause of action” (original capitalization omitted),
but rather relies on HAMP violations to support her state causes of action.
B. Demurrer Challenge Forfeited
In this case, the trial court sustained the demurrer without leave to amend
six causes of action. The claims for wrongful foreclosure, slander of title, and quiet title
were premised on the argument CMS and Deutsche lacked standing to foreclose. The
claim for violations of the RFDCPA was based on the alleged promise to evaluate Melgar
for a HAMP modification and not proceed with foreclosure. The claim for violations of
FEHA was premised on the contention CMS and Deutsche discriminated against Melgar.
The claim for declaratory relief restated claims made in the other causes of action.
In her opening brief, Melgar begins by providing a long list of issues and
questions for appeal, but none relate specifically to the court’s ruling on the demurrer. In
the next section of her brief, Melgar mentions she is seeking appellate review of the
court’s orders granting summary judgment and “select causes of action on demurrer
causes.” Melgar also mentions in her briefing the standard for reviewing orders
sustaining demurrers and motions for summary judgments. She observes the court’s
rulings were erroneous. Yet, nowhere in her briefing does Melgar explain why the
court’s ruling on the demurrer was incorrect. Indeed, Melgar does not contend or explain

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why the court was wrong and the pleadings stated facts sufficient to constitute a cause of
action.
We recognize that generally in reviewing a demurrer order, “[W]e
independently evaluate the pleading, construing it liberally, giving it a reasonable
interpretation, reading it as a whole, and viewing its parts in context.” (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5-6.)
However, it was Melgar’s responsibility to support claims of error with meaningful
argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784-785.) “When legal argument with
citation to authority is not furnished on a particular point, we may treat the point as
forfeited and pass it without consideration. [Citations.] In addition, citing cases without
any discussion of their application to the present case results in forfeiture. [Citations.]
We are not required to examine undeveloped claims or to supply arguments for the
litigants. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Mansell v.
Board of Administration (1994) 30 Cal.App.4th 539, 546 [it is not the court’s function to
serve as the appellant’s backup counsel].)” (Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 52.)
B. Summary Judgment Ruling Affirmed
The trial court granted summary judgment on the ground it was undisputed
Melgar “did not make any effort to tender the amounts due on the loan, which tender is a
prerequisite to setting aside a trustee’s sale and any causes of action ‘implicitly
integrated’ with the alleged irregular sale. The [c]ourt finds that all of the causes of
action in the TAC pertain to the alleged wrongful sale of the property, and therefore[,]
fail for lack of tender.” In its written order, the court summarized all of Melgar’s
arguments regarding HAMP and tender. It ruled, “Although [Melgar] argues that the
[tender] was satisfied by her submission [of] the loan modification application to [CMS
on December 8 and 23 in 2011] . . . the [c]ourt finds that such submission did not satisfy

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the tender rule.” In addition, the court explained, “[T]he causes of action for fraud,
promissory estoppel, unfair and deceptive business practices, negligence, [IIED], and
breach of oral executed contract, which causes of action remain at issue in the TAC, are
‘implicitly integrated’ with the allegations of an irregular sale and all of [Melgar’s]
damages result from the loss of property via the foreclosure sale. [Citation].”
On appeal, Melgar argues the trial court erroneously relied on the tender
rule as a reason to grant summary judgment. She asserts tender was not required for the
following reasons: (1) it would be against federal and California public policy and
legislative intent; (2) HAMP forbids tender; (3) tender would chill access to the legal
system by borrowers; (4) requiring tender is inequitable in this case; and (5) the
foreclosing entity’s actions were void. She is wrong.
“It is settled that an action to set aside a trustee’s sale for irregularities in
sale notice or procedure should be accompanied by an offer to pay the full amount of the
debt for which the property was security. [Citations.] This rule is premised upon the
equitable maxim that a court of equity will not order that a useless act be performed.
‘Equity will not interpose its remedial power in the accomplishment of what seemingly
would be nothing but an idly and expensively futile act, nor will it purposely speculate in
a field where there has been no proof as to what beneficial purpose may be subserved
through its intervention.’ [Citation.]” (Arnolds Management Corp. v. Eischen (1984)
158 Cal.App.3d 575, 578-579 (Arnolds).)
Courts have held the tender rule applies to any cause of action “‘implicitly
integrated’” with an irregular, and thus, voidable foreclosure sale. (Arnolds, supra,
158 Cal.App.3d at p. 579; Karlsen v. American Savings and Loan Assn. (1971)
15 Cal.App.3d 112, 121 [cause of action for breach of oral agreement to postpone
trustee’s sale was implicitly integrated with the voidable sale and therefore subject to the
tender rule].) “A cause of action ‘implicitly integrated’ with the irregular sale fails unless
the trustor can allege and establish a valid tender. [Citation.]” (Arnolds, supra,

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158 Cal.App.3d at p. 579.)
All of Melgar’s causes of action expressly sought to unwind the foreclosure
sale. Her claims for wrongful foreclosure, slander of title, quiet action, and declaratory
relief alleged the sale was void and requested cancellation of the sale as a remedy. Her
claims for promissory estoppel and UBP sought a court order requiring CMS to evaluate
a HAMP modification, which as a practical matter also served to set the sale aside.
Although some of these causes of action did not survive the demurrer, the remaining
claims were implicitly integrated with the wrongful foreclosure allegations. Melgar does
not dispute the court’s conclusion her causes of actions were “implicity integrated” with
her goal proving wrongful foreclosure and setting aside the sale of her home. Thus, we
need not analyze further the trial court’s determination the tender rule applied to all of
Melgar’s remaining causes of action. In dispute is whether the tender rule should not
apply because it falls within one of the legally recognized exceptions to the rule.
We do not agree with Melgar’s insistence the “HAMP directives” forbid
tender. To support her argument, Melgar improperly relies on a statement contained in
the MHA Handbook. Specifically, in the handbook’s discussion of factors impacting
HAMP eligibility, it provides there shall be no “up-front contribution.” It explains, “The
servicer may not require a borrower to make any ‘good faith’ payment or up-front cash
contribution to be considered for HAMP.” In the same section, the MHA Handbook also
provides the servicer cannot require a borrower to waive legal rights as a condition of
HAMP and a borrower can be in active litigation and still be eligible for HAMP.
Melgar equates an up-front cash contribution as being the same thing as
tender. It is not. Tender requires an ability to pay the full amount due on the loan. A
cash contribution or “good faith payment” need not be the full amount owed on the loan.
In the context of a borrower seeking HAMP assistance, the handbook simply states the
servicer cannot charge a fee to be considered for the program. The MHA Handbook does
not eliminate the equitable principle of tender. And in any event, the MHA Handbook

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merely contains guidelines related to HAMP modifications and these guidelines have no
legally binding effect nor eliminate the legal requirement of tender. Stated another way,
the MHA Handbook’s guideless are not codified rules of law. 2 Finally, we note Melgar
admitted she did not raise any individual actions under HAMP, and there was no
evidence Melgar was asked to make any payment before her HAMP application would be
considered.
Second, Melgar argues that requiring her to satisfy the tender rule would be
inequitable and, therefore, against public policy. She maintains the concept of tender is
contrary to the legislative intent because it chills access to the legal system. In essence,
Melgar is saying the circumstances of this case should be treated as an exception to the
tender rule. She cites several cases discussing exceptions to the tender requirement.
“Our review of the case law discloses four exceptions [to the tender rule].
[¶] First, if the borrower’s action attacks the validity of the underlying debt, a tender is
not required since it would constitute an affirmation of the debt. [Citations.] [¶] Second,
a tender will not be required when the person who seeks to set aside the trustee’s sale has
a counterclaim or set off against the beneficiary. In such cases, it is deemed that the
tender and the counterclaim offset one another, and if the offset is equal to or greater than
the amount due, a tender is not required. [Citation.] [¶] Third, a tender may not be
required where it would be inequitable to impose such a condition on the party
challenging the sale. (Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 291,
(Humboldt).) . . . [¶] Fourth, no tender will be required when the trustor is not required to
rely on equity to attack the deed because the trustee’s deed is void on its face.
[Citation.]” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112-113.)
There is no evidence to support application of the first exception. Although
Melgar alleged she disputed the default amount set forth in the notice of default, she did
2 This answers Melgar’s contention the Legislature intended to eliminate the
tender rule anytime a borrow seeks assistance through the HAMP program.

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not dispute the existence or validity of the underlying debt. The second exception is also
inapplicable because there was no evidence Melgar had a counter claim or set off that
was greater than or equal to the amount owed to the bank.
With respect to the third exception, Melgar cites to Humboldt, supra,
161 Cal. at page 291, to support her argument the circumstances of her case are
extremely inequitable, eliminating the requirement of tender. In Humboldt, defendant’s
deceased husband borrowed $55,300 from the bank secured by two pieces of property.
Defendant had a $5,000 homestead on one of the properties. (Id. at p. 287.) When
defendant’s husband defaulted on the debt, the bank foreclosed on both properties. The
court rejected the bank’s argument that defendant had to tender the entire debt as a
condition precedent to having the sale set aside. “Under the circumstances disclosed by
this record, the defendant would be subjected to very evident injustice and hardship if her
right to attack the sale were made dependent upon an offer by her to pay the whole debt.
The debt was not hers, and she was not liable for any part of it. Her only interest was in
the homestead property, which, with other land, was held as security for [defendant’s
husband’s] note. The property which she was seeking to save from the effect of the sale
was worth, according to the finding of the court, $5,000, while the property in which she
had no interest was worth over $57,000.” (Id. at p. 291.)
The Humboldt case is not factually analogous to the one before us. Melgar
had an interest in the entire property and was responsible for the entire loan amount. And
Melgar failed to prove her situation was equally inequitable as the wife’s in Humboldt.
The gravamen of Melgar’s complaint is she submitted HAMP documents seeking a loan
modification that the bank failed to consider or properly evaluate. An argument could be
made that it would be inequitable to impose the tender rule if could be shown Melgar
submitted adequate documentation to support a loan modification to halt foreclosure
proceedings, and the bank had no valid excuse for not evaluating or agreeing to a loan
modification. However, to invoke the inequity exception to tender, Melgar would need to

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establish she would have qualified for a loan modification if her paperwork had been
considered. It is not enough to assert the paperwork was not evaluated. Melgar could not
be relieved from the tender rule if she would not have qualified under HAMP for a loan
modification.
On appeal, Melgar does not assert there is evidence the loan modification
paperwork she actually submitted would have resulted in a loan modification agreement
and prevented the foreclosure sale. Contrary to Melgar’s contention, we are not
concerned that application of the tender rule in this case will chill access to the legal
system and the HAMP program for other borrowers who can demonstrate they would
have qualified for a loan modification.
We are also not persuaded by Melgar’s alternative assertion on appeal that
tender of the full debt owned “would unjustly enrich CMS and REMIC as it was not
expecting payment in full for another 27 or more years.” There is no dispute Melgar
defaulted on the loan and under the terms of the loan CMS and REMIC could reasonably
expect payment of owed money or receive the proceeds via a foreclosure sale of the
property securing the debt.
The fourth exception to the tender rule is inapt because there was no
evidence suggesting the trustee’s deed was void on its face. Melgar suggests there is a
fifth exception, i.e., when the borrower obtained a loan modification. As we will explain,
this scenario actually falls within the fourth exception. Melgar’s supporting citation,
Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062 (Chavez),
discusses the nature of the fourth exception. In that case, the court held a homeowner
was not required to allege tender in a case concerning the bank’s breach of a modification
agreement. In reversing the trial court’s order sustaining the demurrer to the
homeowner’s wrongful foreclosure cause of action, the appellate court held, “[The
homeowner] sufficiently alleged an exception to the tender rule that the foreclosure sale
was void because [the bank] lacked a contractual basis to exercise the power of sale as

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[the homeowner’s] original loan had been modified under the Modification Agreement
and [the homeowner] fully performed under the Modification Agreement until [the bank]
breached the agreement by refusing payment. (Bank of America v. La Jolla Group II
(2005) 129 Cal.App.4th 706, 710, 711-712 [trustee’s sale invalid where ‘the trustor and
beneficiary entered into an agreement to cure the default’]; Bisno v. Sax (1959)
175 Cal.App.2d 714, 724 [‘Speaking generally, the acceptance of payment of a
delinquent installment of principal or interest cures that particular default and precludes a
foreclosure sale based upon such preexisting delinquency. The same is true of a tender
which has been made and rejected.’].) Because [the homeowner] sufficiently alleged a
recognized exception to the tender rule, the trial court erred by sustaining the demurrer to
her wrongful foreclosure cause of action.” (Chavez, supra, 219 Cal.App.4th at p. 1063,
italics added.)
The Chavez case is not analogous to the one before us because the parties
did not have a loan modification agreement. And there is no other evidence suggesting
the trustee lacked authority to proceed with the foreclosure.
Melgar argues tender was not required because she challenged CMS and
REMIC’s authority to foreclose due to improper securitization of her loan. This court
recently determined in Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th
497 (Jenkins) that securitization issues do not affect the validity of a foreclosure sale. In
that case, the homeowner attempted to state a cause of action based on a dispute about
whether there was an improper transfer of the promissory note during the securitization
process. We held, “[E]ven if the asserted improper securitization (or any other invalid
assignments or transfers of the promissory note subsequent to her execution of the note
on Mar. 23, 2007) occurred, the relevant parties to such a transaction were the holders
(transferors) of the promissory note and the third party acquirers (transferees) of the note.
‘Because a promissory note is a negotiable instrument, a borrower must anticipate it can
and might be transferred to another creditor. As to plaintiff, an assignment merely

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substituted one creditor for another, without changing her obligations under the note.’
[Citation.] As an unrelated third party to the alleged securitization, and any other
subsequent transfers of the beneficial interest under the promissory note, [the
homeowner] lacks standing to enforce any agreements, including the investment trust’s
pooling and servicing agreement, relating to such transactions. (See In re Correia
(Bankr. 1st Cir. 2011) 452 B.R. 319, 324-325 [debtors lacked standing to raise violations
of pooling and service agreement].) [¶] Furthermore, even if any subsequent transfers of
the promissory note were invalid, [the homeowner] is not the victim of such invalid
transfers because her obligations under the note remained unchanged. Instead, the true
victim may be an individual or entity that believes it has a present beneficial interest in
the promissory note and may suffer the unauthorized loss of its interest in the note. It is
also possible to imagine one or many invalid transfers of the promissory note may cause
a string of civil lawsuits between transferors and transferees. [The homeowner,]
however, may not assume the theoretical claims of hypothetical transferors and
transferees for the purposes of showing a ‘controversy of concrete actuality.’ [Citation.]
Consequently, we conclude [the homeowner’s] first cause of action lacks merit for the
independent reason she cannot show the existence of an actual, present controversy
between herself and defendants. [Citations.]” (Jenkins, supra, 216 Cal.App.4th at pp.
514-515.)
Melgar argues Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, a
case published after Jenkins, supports her argument that a borrower may challenge a
nonjudicial foreclosure based on allegations that one or more transfers in the chain of title
of a trust deed was void. She recognizes the Glaski ruling is currently before our
Supreme Court in its review of Yvanova v. New Century Mortgage (2014)
226 Cal.App.4th 495, 502, review granted August 27, 2014, S218973. In Glaski, the
court concluded noncompliance with the terms of a pooling and servicing agreement
would render an assignment void and then it adopted the majority rule in Texas that an

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obligor may resist foreclosure on any ground that renders an assignment in the chain of
title void. (Glaski, supra, 218 Cal.App.4th at p. 1095, see Reinagel v. Deutsche Bank
Nat’l Trust Co. (5th Cir. 2013) 722 F.3d 700, 705.) No other California court or federal
court has followed Glaski on this issue. Several have clearly refused to follow its
reasoning. As discussed above, our opinion in the Jenkins case directly conflicts with the
holding of Glaski, which we are not bound to follow. We will continue to follow our
reasoning in Jenkins and decline to follow Glaski.
C. Melgar’s Request for a Continuance
Melgar requested a continuance in her opposition to the motion for
summary judgment. On appeal, she argues the trial court abused its discretion in denying
her request because CMS altered, destroyed, or hid an audio recording of a conversation
taking place on January 30, 2012. This is the totality of her legal argument. She supports
this claim with a single record citation, which is a response to CMS’s separate statement
of undisputed facts.
In her response, Melgar objected to CMS’s undisputed fact that it spoke
with Melgar on January 30, 2012. Melgar disputed this fact on the following basis:
“Unintelligible. Unclear what it is offered to prove. No cohesive argument. Seems to
say [Melgar’s] claims are true.” Melgar added that CMS “produced selective,
unauthenticated, possibly altered and/or edited voice recordings of conversations” but
there was no voice recording of the January 30 conversation. Melgar cited her deposition
in which she recalled that on January 30 she was told she was being denied HAMP
benefits, CMS would not entertain any foreclosure alternatives, and her house was going
to the bank.
The trial court did not expressly deny the request for a continuance, but in
granting the summary judgment motion, we find the court implicitly denied the request.
We conclude the court did not err because Melgar did not comply with the requirements
of Code of Civil Procedure section 437c, subdivision (h). That provision provides, “If it

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appears from the affidavits submitted in opposition to a motion for summary judgment or
summary adjudication or both that facts essential to justify opposition may exist but
cannot, for reasons stated, then be presented, the court shall deny the motion, or order a
continuance to permit affidavits to be obtained or discovery to be had or may make any
other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).)
“It is not enough to ask for a continuance at the time of oral argument or in
opposing points and authorities. The statute requires that the opposition be accompanied
by affidavits or declarations showing facts to justify opposition may exist . . . [Citations.]
[¶] . . . The purpose of the declarations required by [Code of Civil Procedure
section 437c, subdivision (h)] is to inform the court of outstanding discovery necessary to
resist the summary judgment motion: ‘To be entitled to a continuance, the party
opposing the motion for summary judgment must show that its proposed discovery would
have led to facts essential to justify opposition.’ [Scott v. CIBA Vision Corp. (1995)
38 [Cal.App.]4th 307, 325-326, (internal quotes omitted)—declaration not excused by
outstanding discovery order requiring production of documents sought].” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015)
¶¶ 10:207.10 & 10:207.11.) “The trial court need not grant a continuance where the
proposed discovery is focused on matters beyond the scope of the dispositive issues
framed by the pleadings. [Citation.] The decision whether to grant a continuance is
within the discretion of the trial court. [Citation.]” (Ace American Ins. Co. v. Walker
(2004) 121 Cal.App.4th 1017, 1023.)
Consequently, “The nonmoving party seeking a continuance ‘MUST
SHOW: (1) the facts to be obtained are essential to opposing the motion; (2) there is
reason to believe such facts may exist; and (3) the reasons why additional time is needed
to obtain these facts. [Citations.]’ [Citation.].” (Frazee v. Seely (2002) 95 Cal.App.4th
627, 633, capitalization added.) Melgar’s supporting declaration did not contain any of
the required information. Instead, Melgar declared she requested the audio recording at

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her deposition on December 19, 2013, and by e-mail on March 13 and 18, 2014. Melgar
stated CMS responded by saying all the recordings had been produced and “any threat to
compel would be improper and vigorously opposed.”
Melgar did not explain why she did not make a motion to compel
production of the missing recording or why she believed the recording existed. More
importantly, Melgar’s declaration did not explain why the information in the requested
documents was essential to opposing the motion or why additional time was needed.
(See Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) In
light of our conclusion the court properly applied the tender rule, we conclude the
purportedly missing information about CMS’s failure to evaluate her application under
HAMP would not have changed this outcome. As mentioned earlier, Melgar would have
needed to produce evidence she would have in fact qualified for a loan modification,
making application of the tender rule inequitable. As decided earlier, the tender rule
applied and, therefore, we affirm the court’s decision to grant the summary judgment
motion.
III
The judgment is affirmed. Respondents shall recover their costs on appeal.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.

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