Gomes v. Countrywide Home Loans, Inc

In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, ReconTrust Company sent the borrower the notice of default. In Gomes, ReconTrust Company acted as the agent for Mortgage Electronic Registration Systems, Inc. (MERS). " '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.' " (Id. at p. 1151.) The borrower alleged that he " 'did not know the identity of the Note's beneficial owner' " (id. at p. 1152) and that MERS did not have authority to initiate the foreclosure. The trial court sustained a demurrer to the complaint without leave to amend. Affirming, the Court of Appeal refused to interfere in the delicately balanced and comprehensive nonjudicial foreclosure scheme established by the Legislature. (Civ. Code, 2924 et seq.) The court concluded, "Because California's nonjudicial foreclosure statute is unambiguously silent on any right to bring the type of action identified by Gomes, there is no basis for the courts to create such a right." (Gomes, supra, 192 Cal.App.4th at p. 1156.) In Gomes v. Countrywide Home Loans, Inc, plaintiff alleged, "on information and belief, that MERS did not have authority to initiate the foreclosure because the current owner of the Note did not authorize MERS" to so proceed. The appellate court rejected the attempt "to interject the courts into this comprehensive nonjudicial scheme." (Id. at p. 1154.) The court held there was no peremptory cause of action to determine whether the owner of the note authorized the nonjudicial foreclosure. (Id. at p. 1155; accord Robinson v. Countrywide Home Loans, Inc. (2011) 199 Cal.App.4th 42, 46.) To attack the authority of the entity initiating a nonjudicial foreclosure, a plaintiff must identify "a specific factual basis for alleging that the foreclosure was not initiated by the correct party." (Gomes, supra, at p. 1156; accord Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 511-512.) The Gomes court also found another basis for affirming the order sustaining the demurrer. The deed of trust, which Gomes had attached to his complaint, "establishes as a factual matter that his claims lack merit. As stated in the deed of trust, Gomes agreed that 'MERS (as nominee for Lender and Lender's successors and assigns) has . . . the right to foreclose and sell the Property.' " (Gomes, supra, 192 Cal.App.4th at p. 1157.) In Gomes v. Countrywide Home Loans, Inc. (2011) the plaintiff, who had executed a note and deed of trust and subsequently defaulted on the note, sued for wrongful foreclosure . He alleged the note had been sold and the current owner was unknown and had not authorized the foreclosure. In affirming the order sustaining the demurrer, the appellate court pointed to sections 2924 through 2924k, describing them as constituting a "'comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust' . . . that 'covers every aspect of exercise of the power of sale contained in a deed of trust.' " (Gomes, at p. 1154.) Due to the "'exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the nonjudicial foreclosure statute.' " (Gomes, supra, 192 Cal.App.4th at p. 1154.) Gomes held there is no authority to "interject the courts into this comprehensive nonjudicial scheme" by allowing a party to file a suit to determine whether the party initiating the foreclosure has been properly authorized to do so by the owner of the note. (Ibid.) Moreover, section 2924, subdivision (a)(1) states a notice of default may be recorded by "a 'trustee, mortgagee, or beneficiary, or any of their authorized agents.'" "Nowhere does the statute provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and we see no ground for implying such an action. The recognition of the right to bring a lawsuit to determine a nominee's authorization to proceed with foreclosure on behalf of the noteholder would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures." (Gomes, supra, 192 Cal.App.4th at p. 1155.)