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MONICA CORDONERO et al., Plaintiffs and Appellants, v. NATIONAL DEFAULT SERVICING CORPORATION et al., Defendants and Respondents. No.

G044917. Court of Appeals of California, Fourth District, Division Three. Filed December 9, 2011. Law Offices of Nick A. Alden and Nick A. Alden for Plaintiffs and Appellants. Wright, Finlay & Zak, Gwen H. Ribar and Darlene P. Palaganas for Defendants and Respondents. NOT TO BE PUBLISHED IN OFFICIAL REPORTS OPINION FYBEL, J. INTRODUCTION Plaintiffs Monica Cordonero and Carlos Cordonero appeal from the trial court's orders denying their requests for a preliminary injunction enjoining defendants National Default Servicing Corporation (National), New Century Mortgage Corporation (New Century), Mortgage Electronic Registration Systems (MERS), and DLJ Mortgage Capital, Inc. (DLJ Mortgage), from foreclosing on plaintiffs' property. Plaintiffs filed a complaint seeking a judicial declaration that the notice of default and notice of trustee's sale were invalid. The complaint also alleged defendants violated certain nonjudicial foreclosure statutes. We affirm. Plaintiffs failed to show a likelihood of succeeding on the merits of their claims. The trial court therefore did not err by refusing to issue a preliminary injunction. FACTS AND PROCEDURAL BACKGROUND I. Plaintiffs Acquire Real Property Which They Later Refinance by Obtaining a Loan that Is Secured by a Trust Deed. In April 2002, plaintiffs acquired real property located on Hazard Avenue in Santa Ana (the property) by grant deed; the grant deed was recorded a month later. About five years later, in order to effect a "cash-out refinance," plaintiffs borrowed $305,000 from lender New Century (the loan). Plaintiffs executed a promissory note and a trust deed (the trust deed) securing that obligation in favor of New Century. The trust deed identified New Century as "Lender," First American Title Insurance Company (First American) as "Trustee," and MERS as the beneficiary under the trust deed and as "a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns."[1] Under the heading "Transfer of Rights in the Property," the trust deed stated in part: "The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS."[2] The trust deed further stated that MERS

"holds only legal title to the interests granted by [plaintiffs] 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." II. PLAINTIFFS DEFAULT AND NONJUDICIAL FORECLOSURE PROCEEDINGS COMMENCE. In June 2007, DLJ Mortgage purchased the loan.[3] In February 2010, plaintiffs defaulted on making payments on the loan. There is no dispute about the payment default and no contention plaintiffs ever tendered the amount due. National caused a document, entitled "Notice of Default and Election to Sell Under Deed of Trust [] Important Notice" (notice of default), to be recorded in May 2010. The notice of default stated that National "is either the original Trustee, the duly appointed substituted Trustee or acting as agent for the Trustee or Beneficiary" under the trust deed which "secure[d] certain obligations in favor of [MERS], as nominee for New Century." (Some capitalization omitted.) The notice of default also stated: "[T]he present beneficiary under such Deed of Trust has executed and delivered to duly appointed Trustee a written Declaration of Default and Demand for Sale." The notice of default further stated: "The undersigned mortgagee, beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California Civil Code 2923.5[, subdivision] (b) declares that the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code [section] 2923.5." The notice of default was signed by Select Portfolio Servicing, Inc. (Select), which acted as "servicer and attorney-in-fact" for DLJ Mortgage. The record shows Select has also acted on behalf of MERS. A document entitled "Corporate Assignment of Deed of Trust" (the assignment), which was dated July 2, 2010 and recorded on August 27, 2010, stated that MERS "hereby grants, assigns and transfers" to DLJ Mortgage "all beneficial interest" under the trust deed and "all rights accrued or to accrue" under the trust deed. A document entitled "Substitution of Trustee," dated August 9, 2010, was also recorded on August 27, 2010. That document stated that DLJ Mortgage substituted National as trustee under the trust deed in place of the original trustee, First American. A third document, entitled "Notice of Trustee's Sale" and signed by a representative from National, was recorded on August 27, 2010. That notice stated that the property was scheduled to be placed for sale on September 17, 2010.[4] That document also stated the following: "The undersigned mortgagee, beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California Civil Code 2923.5[, subdivision] (b) declares that

the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code [section] 2923.5. [] Regarding the property that is the subject of this Notice of Sale, the `mortgage loan servicer' as defined in California Civil Code Section 2923.53[, subdivision] (k)(3) declares that it has obtained from the Commissioner a final or temporary order of exemption pursuant to California Civil Code Section 2923.53 and that the exemption is current and valid on the date this Notice of Sale is recorded. The timeframe for giving a Notice of Sale specified in Subdivision (a) [of] Section 2923.52 does not apply to this Notice of Sale pursuant to California Civil Code Section[] 2923.52 or 2923.55." III. Plaintiffs File a Lawsuit and Seek to Enjoin Defendants' Efforts to Foreclose on the Property. On November 15, 2010, plaintiffs filed a complaint against National, New Century, MERS, and DLJ Mortgage. The complaint alleged the notice of default, recorded on May 26, 2010 by National, was invalid because the substitution of trustee document (stating that National had become trustee under the trust deed) was not recorded until August 27, 2010. The complaint asserted National therefore lacked the authority to cause the notice of default to be recorded. The complaint also alleged the notice of trustee's sale was invalid due to the invalidity of the notice of default. The complaint further alleged that defendants violated Civil Code section 2923.5, subdivisions (a) and (g), former section 2923.52,[5] and sections 2924b and 2924f in their effort to foreclose on the property. Section 2923.5, subdivisions (a) and (g) set forth the required contacts a mortgagee, trustee, beneficiary, or authorized agent must make or attempt to make with a borrower before filing a notice of default. Former section 2923.52, which was in effect at the time plaintiffs filed the complaint, prohibited the giving of a notice of sale for a certain time period under certain circumstances. As pertinent to this case, section 2924b requires a trustee to mail a copy of the notice of default to the trustor, and section 2924f requires that a notice of trustee's sale be posted on the subject property at least 20 days before the date of sale. In the complaint, plaintiffs sought damages and a judicial declaration stating the notice of default and the notice of trustee's sale were invalid. On the same day that the complaint was filed, plaintiffs filed an ex parte application seeking (1) a temporary restraining order; (2) an order to show cause why a preliminary injunction should not issue that would enjoin defendants from proceeding with the foreclosure sale; and (3) an order shortening the time "to file, serve and hear the preliminary injunction." Plaintiffs argued in the ex parte application that DLJ Mortgage "acquired the Property" and appointed National as trustee three months after National

recorded the default notice. In addition, plaintiffs argued defendants violated Civil Code section 2923.5 because they failed to contact plaintiffs before the notice of default was recorded, section 2924b because the notice of default was not mailed to plaintiffs, and section 2924f because defendants failed to post the notice of trustee's sale on the property for at least 20 days before the date of the sale. In support of plaintiffs' application, Carlos Cordonero declared: "Before the Notice of Default was recorded, no one contacted me to try to help me avoid foreclosure. No one posted any document on the property." The trial court issued a temporary restraining order prohibiting defendants and their agents from "[s]elling, assigning, encumbering, transferring or in any way disposing of any interest in" the property, and an order to show cause why a preliminary injunction should not be issued. Defendants' opposition to issuance of a preliminary injunction was supported by the declaration of Select's compliance specialist, Mindy Leetham.[6] Select is a servicer and attorney in fact for DLJ Mortgage, and maintains a database of the activities for the loans it services. Leetham stated in her declaration that Select's loan records show that DLJ Mortgage purchased the loan on June 15, 2007 and that the assignment was recorded on August 27, 2010. Leetham also declared that since July 2009 but before plaintiffs defaulted on the loan, Select and plaintiffs "discuss[ed] loss mitigation options." In August 2009, plaintiffs requested a modification of the loan under the Obama Administration's Home Affordable Modification Program (HAMP), but were informed they did not qualify for HAMP due to their debt-to-income ratio being less than 31 percent. Leetham also stated the loan records show that in May 2010, plaintiffs were offered alternatives to a modification of the loan, including a short sale and deed in lieu. Plaintiffs, however, declined those offers because they wanted a modification of the loan. Leetham further declared that in June 2010, plaintiffs again submitted documents in an effort to obtain a modification of the loan under HAMP; plaintiffs' income, however, precluded their qualification for HAMP. Leetham declared that in July 2010, Select again offered plaintiffs short sale and deed in lieu options, but plaintiffs again declined. Plaintiffs requested another HAMP review and Select sent plaintiffs another application. In July and August 2010, plaintiffs were informed they had not submitted the required information in support of their application. As of September 2010, plaintiffs had failed to complete all of the required documentation for a modification of the loan review. Leetham's declaration also stated that plaintiffs "continue to occupy the Property rent-free and mortgage-free" while Select continues to pay "the interest on the debt, debt servicing, taxes and insurance and other advances." As of the date of Leetham's declaration, Select had advanced $17,063.69 in interest and $89 for a broker's price opinion. Select's correspondence with plaintiffs, regarding loss mitigation options, which

included modification of the loan applications, was addressed to the attention of plaintiffs' attorney, James C. Nguyen. In reply to defendants' opposition, plaintiffs submitted the declaration of Monica Cordonero, which stated: "Before the Notice of Default was recorded, no one contacted me to try to help me avoid foreclosure. No one posted any document on the property before the property was foreclosed on."[7] IV. The Trial Court Refuses to Issue a Preliminary Injunction and Plaintiffs Appeal. On February 3, 2011, the trial court denied plaintiffs' request for a preliminary injunction and dissolved the temporary restraining order. The court's minute order stated in relevant part: "Plaintiff has failed to meet the burden of proving a likelihood of prevailing on the merits. Plaintiff's declaration states that Carlos was not contacted by the lender but says nothing about his wife Monica, whether she was contacted or not. And he also fails to state whether or not there were contacts through his lawyer, Mr. Nguyen (Exhibit C). And Plaintiff has not tendered or shown an ability to tender." On March 2, 2011, plaintiffs filed another ex parte application for a temporary restraining order and an order to show cause why a preliminary injunction enjoining defendants from proceeding with the foreclosure sale should not be issued. Plaintiffs also requested that the trial court stay the proceedings pending the outcome of their imminent appeal from the court's order denying their request for a preliminary injunction. Plaintiffs argued in their second ex parte application that "MERS had no authority to assign the Property because it owned no beneficial interest in it and because New Century was in bankruptcy." They further argued that because MERS only assigned DLJ Mortgage the trust deed, not the promissory note, "DLJ has no right to foreclose on the property." The trial court refused to issue a temporary restraining or an order to show cause as to the issuance of a preliminary injunction. Plaintiffs filed a timely notice of appeal from the trial court's orders denying their requests for a preliminary injunction.[8] Plaintiffs filed a petition for a writ of supersedeas requesting this court issue a writ enjoining defendants from foreclosing on the property pending the outcome of plaintiffs' appeal. This court summarily denied the petition. REQUEST FOR JUDICIAL NOTICE Plaintiffs filed in this court a request that we take judicial notice of court records from certain United States Bankruptcy Court cases and from the courts of other states. Defendants have not opposed plaintiffs' request. Plaintiffs' request for judicial notice is granted pursuant to Evidence Code section 452, subdivision (d) which provides that judicial notice may be taken of the "[r]ecords of . . . any court of record of the United States or of any

state of the United States." (See Evid. Code, 459 [appellate court may take judicial notice of any matter specified in section 452].) DISCUSSION I. Legal Principles Governing Preliminary Injunctions and Applicable Standard of Review "The appellate standard for reviewing preliminary injunctions is well established. In deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative interim harm to the parties from the issuance or nonissuance of the injunction. [Citation.]" (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.) The California Supreme Court has explained: "The trial court's determination must be guided by a `mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.] Of course, `[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.' [Citation.] A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.] Unless potential merit is conceded, an appellate court must therefore address that issue when reviewing an order granting a preliminary injunction." (Butt v. State of California (1992) 4 Cal.4th 668, 678.) "`The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. [Citation.]' [Citation.]" (White v. Davis (2003) 30 Cal.4th 528, 554.) "`Generally, the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a showing that it has been abused. [Citations.]' [Citation.] `A trial court may not grant a preliminary injunction, regardless of the balance of the interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.]' [Citation.]" (Hunt v. Superior Court, supra, 21 Cal.4th at p. 999.) "Whether the trial court granted or denied a preliminary injunction, the appellate court does not resolve conflicts in the evidence, reweigh the evidence, or assess the credibility of witnesses. [Citation.] `"[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts."' [Citation.] Thus, even when presented by declaration, `if the evidence on the application is in conflict, we must interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable

inferences in support of the trial court's order.' [Citation.]" (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO ISSUE A PRELIMINARY INJUNCTION. Plaintiffs contend the trial court abused its discretion by denying their requests that it issue a preliminary injunction staying the foreclosure proceedings against them. For purposes of our analysis, we assume plaintiffs demonstrated they would suffer the greater interim harm if the trial court did not issue a preliminary injunction enjoining defendants' foreclosure efforts. For the reasons we will explain, the trial court did not err because plaintiffs did not meet their burden of showing a likelihood they would prevail on the merits of their claims. A. Declaratory Relief Claim Plaintiffs' first cause of action for declaratory relief sought a judicial declaration stating that the notice of default recorded by National was invalid because the substitution of trustee form naming National as the trustee was not recorded until three months after the notice of default had been recorded. For the same reason, plaintiffs alleged the notice of trustee's sale was invalid. We address plaintiffs' arguments in turn. 1. National was authorized to record the notice of default while acting as the agent of the trustee or beneficiary. Plaintiffs contend the notice of default is invalid and must be stricken because National had no authority to cause it to be recorded. The notice of default form, however, stated that National was acting as "either the original Trustee, the duly appointed substituted Trustee or acting as agent for the Trustee or Beneficiary under [the trust deed] . . . to secure certain obligations in favor of [MERS] as nominee for [New Century] as beneficiary." (Italics added, some capitalization omitted.) Nothing in the record suggests that National was attempting to act in the capacity of the trustee under the trust deed (not as an authorized agent) at the time the notice of default was recorded. Civil Code section 2924, subdivision (a)(1) provides authority for an agent of a trustee or beneficiary to cause a notice of default to be recorded, stating in relevant part: "The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default." (Italics added.) Section 2924, subdivision (a)(1) "does not include a requirement that an agent demonstrate authorization by its principal." (Fontenot, supra, 198 Cal.App.4th at p. 268.)

Therefore, that a substitution of trustee form naming National as the substituted trustee under the trust deed was recorded three months later is immaterial to the determination whether National was an agent authorized to cause the notice of default to be recorded in this case. Furthermore, the trust deed itself expressly vested in MERS the authority to exercise "any or all" of the interests granted by plaintiffs in the trust deed, "including, but not limited to, the right to foreclose and sell the Property." (See Gomes, supra, 192 Cal.App.4th at p. 1157 [holding MERS can initiate foreclosure proceedings as the nominee or agent of the lender, noting, "deed of trust contains no suggestion that the lender or its successors and assigns must provide [the plaintiff] with assurances that MERS is authorized to proceed with a foreclosure at the time it is initiated" and concluding the plaintiff's "agreement that MERS has the authority to foreclose thus precludes him from pursuing a cause of action premised on the allegation that MERS does not have the authority to do so"].) To the extent National was acting as MERS's agent, MERS had the power to authorize National to cause the notice of default to be recorded in order to commence foreclosure proceedings. Plaintiffs have not produced any evidence or legal authority showing otherwise. 2. National was authorized as the successor trustee to cause the notice of trustee's sale to be recorded. Plaintiffs raise several arguments challenging the validity of the notice of trustee's sale that was recorded on August 27, 2010. None has merit. Plaintiffs argue that the notice of trustee's sale was invalid because the notice of default was invalid for the reasons addressed and rejected, ante. Plaintiffs also argue the notice of trustee's sale was invalid because National lacked authority to record it. Leetham's declaration stated that in June 2007, the original lender under the trust deed, New Century, sold its interest to DLJ Mortgage. On August 27, 2010, the assignment was recorded, providing that MERS assigned to DLJ Mortgage "all beneficial interest" under the trust deed. Hence, DLJ Mortgage had the authority to appoint National as the successor trustee to the original trustee (First American), and did so by recording the substitution of trustee document naming National as the successor trustee.[9] An affidavit of mailing was attached to the substitution of trustee form showing that a copy of that form was mailed to plaintiffs. At paragraph 22, the trust deed stated: "If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Lender's election to cause the Property to be sold. Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by Applicable Law to Borrower and to the other persons prescribed by Applicable Law. Trustee shall give public notice of sale to the persons and in the manner prescribed by Applicable

Law." National, in its capacity as the successor trustee under the trust deed, caused the notice of trustee's sale to be recorded. Plaintiffs argue that the notice of trustee's sale is invalid because MERS lacked the authority to assign beneficial interest to DLJ Mortgage which in turn lacked the authority to substitute National as trustee under the trust deed. The trust deed however stated the beneficiary of the trust deed was MERS and "the successors and assigns of MERS." Nothing in the trust deed prohibited MERS's assignment of "all beneficial interest" and "all rights accrued or to accrue" under the trust deed to DLJ Mortgage. (See Robinson v. Countrywide Home Loans, Inc. (2011) 199 Cal.App.4th 42, 46 [nonjudicial foreclosure statutory scheme "does not provide for a preemptive suit challenging standing"]; Fontenot, supra, 198 Cal.App.4th at p. 271 ["the allegation that MERS was merely a nominee is insufficient to demonstrate that MERS lacked authority to make a valid assignment of the note on behalf of the original lender"]; Gomes, supra, 192 Cal.App.4th at pp. 1154-1157 [the plaintiff failed to identify legal basis for claim to determine whether MERS had authority to initiate a foreclosure proceeding].) Plaintiffs have not cited any legal authority, and we have found none, which would preclude such an assignment. Plaintiffs contend MERS's assignment of beneficial interest under the trust deed to DLJ Mortgage in 2010 was ineffective because the original lender, New Century, had declared bankruptcy and was no longer in existence.[10] There is no evidence in the record showing if or when New Century has filed for bankruptcy or has gone out of business. There is evidence DLJ Mortgage purchased the loan from New Century on June 15, 2007. In the plaintiffs' appellate briefs, in order to establish that New Century had filed for bankruptcy in April 2007, plaintiffs cite to a news Web site article they included in the appendix of petitioners' exhibits filed in support of their petition for a writ of supersedeas. The article was dated April 3, 2007, and was entitled "New Century files for Chapter 11 bankruptcy." This article does not constitute evidence and the factual assertions it contains are not the proper subject of judicial notice. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1065 [truth of contents of newspaper article "is not judicially noticeable"].) Even if New Century has filed for bankruptcy under chapter 11, plaintiffs have failed to present any legal authority addressing how that circumstance would affect New Century's ability to sell the loan to DLJ Mortgage. "[A] nonjudicial foreclosure sale is presumed to have been conducted regularly, and the burden of proof rests with the party attempting to rebut this presumption." (Fontenot, supra, 198 Cal.App.4th at p. 270.) Therefore, plaintiff had the burden to "affirmatively . . . plead facts demonstrating the impropriety." (Ibid.) Because plaintiffs have failed to carry their burden of showing how either the notice of default or the notice of trustee's sale was invalid, they have failed

to demonstrate a likelihood of prevailing on the merits of their declaratory relief claim. B. Statutory Violations Claim The second cause of action is entitled "Violation of Statutory Duties" and alleged that defendants violated certain statutes in their efforts to foreclose on the property. "California's nonjudicial foreclosure scheme is set forth in Civil Code sections 2924 through 2924k, which `provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.' [Citation.] `These provisions cover every aspect of exercise of the power of sale contained in a deed of trust.'" (Gomes, supra, 192 Cal.App.4th at p. 1154.) In the complaint, plaintiffs alleged defendants violated Civil Code section 2923.5, subdivision (a), former section 2923.52, and sections 2924b and 2924f. On appeal, plaintiffs have abandoned their claim that defendants violated section 2924b, so we do not further address that claim. As we will explain, plaintiffs have failed to show a likelihood of proving defendants violated any of these statutes. 1. Civil Code Section 2923.5, Subdivision (a) Civil Code section 2923.5, subdivision (a) provides in part: (1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (g). [] (2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure."[11] Section 2923.5, subdivision (g) provides that a notice of default may be recorded when a mortgagee, beneficiary, or authorized agent exercised due diligence to contact the borrower, but failed to make contact. Here, the notice of default stated in part: "The undersigned mortgagee, beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California Civil Code 2923.5[, subdivision] (b) declares that the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code [section] 2923.5." Leetham declared: "Contrary to Plaintiffs' allegations in the Complaint that no contact was made with Plaintiffs prior to default, the Loan Records reflect that [Select] and Plaintiffs have been discussing loss mitigation options since 2009." She further declared: "The Loan Records reflect that in August 2009, Plaintiffs asked for a loan modification, but they were informed that at that time they did not qualify for the Obama Administration's Home Affordable Modification Program (`HAMP') due to a debt-to-income ratio of less than

31%." Attached to Leetham's declaration was a letter from Select, addressed to plaintiffs and to the attention of plaintiffs' attorney, James C. Nguyen, in which plaintiffs were informed that they did not qualify for HAMP. Leetham stated that in May 2010, "Plaintiffs were offered short sale and deed-in-lieu (`DIL') options, but they declined because they wanted a loan modification, even though they did not qualify." Defendants produced evidence that Select engaged in extensive correspondence addressed to plaintiffs and to the attention of Nguyen, beginning in August 2009, in an effort to explore mitigation options with plaintiffs. Carlos Cordonero and Monica Cordonero each filed a declaration in support of their application for a preliminary injunction, which stated in part, "[b]efore the Notice of Default was recorded, no one contacted me to try to help me avoid foreclosure." The trial court, however, concluded plaintiffs' declarations were insufficient evidence to show defendants violated Civil Code section 2923.5, subdivision (a) because plaintiffs' evidence "fails to state whether or not there were contacts through [their] lawyer, Mr. Nguyen."[12] The trial court did not err by concluding plaintiffs failed to make a prima facie showing that defendants violated Civil Code section 2923.5, subdivision (a). 2. Civil Code Section 2924f Civil Code section 2924f, subdivision (b)(1) provides in part that "before any sale of property can be made under the power of sale contained in any deed of trust or mortgage, . . . notice of the sale thereof shall be given by posting a written notice of the time of sale and of the street address and the specific place at the street address where the sale will be held, and describing the property to be sold, at least 20 days before the date of sale." Plaintiffs' declarations each stated: "No one posted any document on the property." Had the trustee's sale occurred without defendants having posted the notice required by Civil Code section 2924f on the property for 20 days prior to the sale, they would have been in violation of that statute. But the trustee's sale never occurred. There is no evidence the sale of the property would have gone forward on the rescheduled date of November 16, 2010. In any event, on November 15, 2010, plaintiffs obtained a temporary restraining order enjoining defendants from selling the property. The trial court denied plaintiffs' original application for a preliminary injunction in February 2011. The record does not show a new date for the trustee's sale after that ruling. Therefore, plaintiffs have not established a likelihood of proving a violation of Civil Code section 2924f. 3. Civil Code Former Section 2923.52 In the complaint, plaintiffs asserted defendants violated Civil Code former section 2923.52 which "impose[d] a 90-day delay in the normal foreclosure

process" to permit the parties to pursue a loan modification that might prevent foreclosure. (Vuki v. Superior Court (2010) 189 Cal.App.4th 791, 795.) In Vuki v. Superior Court, supra, 189 Cal.App.4th at page 795, a panel of this court held that former section 2923.52 does not provide a private right of action. Plaintiffs have thus failed to establish a likelihood of prevailing on their claim defendants violated former section 2923.52. C. PLAINTIFFS HAVE OFFERED NO EVIDENCE SHOWING THE PREJUDICE THEY SUFFERED AS A RESULT OF ANY ALLEGED IRREGULARITY IN THE NONJUDICIAL FORECLOSURE PROCEEDINGS. For the reasons discussed ante, plaintiffs have failed to show a likelihood that they would succeed on the claims asserted in their complaint. Consequently, the trial court did not err in denying their requests for a preliminary injunction. We observe, however, that even if plaintiffs had made a showing of irregularities in the nonjudicial foreclosure proceedings or of statutory violations, plaintiffs have failed to produce any evidence showing how they were prejudiced. In Fontenot, supra, 198 Cal.App.4th at page 272, the appellate court stated: "We also note a plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiff's interests. [Citations.] Prejudice is not presumed from `mere irregularities' in the process. [Citation.] Even if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by MERS's purported assignment, and there is no allegation to this effect." Here, as in Fontenot, plaintiffs have effectively conceded they were in default. (Ibid.) They have not alleged, much less produced evidence, that any irregularities or statutory violations asserted in the complaint interfered with their payment on the loan. (Ibid.) Finally, as pointed out by the trial court, plaintiffs did not allege or prove that they tendered, or have the ability to tender, the amount owed. (See Gomes, supra, 192 Cal.App.4th at p. 1157, fn. 8 ["`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'"]; FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022 [policy behind tender rule is that irregularities in foreclosure sale do not damage the plaintiff where the plaintiff could not redeem property had sale procedures been proper].) We recognize there might be circumstances in which it would be inequitable for the tender rule to apply such as when the plaintiff's action attacks the validity of the underlying debt (see Onofrio v. Rice (1997) 55 Cal.App.4th 413, 424). No such circumstances, however, are present here. We find no error. DISPOSITION

The orders are affirmed. Respondents shall recover costs on appeal. O'LEARY, ACTING P. J. and MOORE, J., concurs. [1] The so-called "MERS System" is a method used by the mortgage banking industry to facilitate the securitization of real property debt instruments. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 267 (Fontenot).) "MERS is a private corporation that administers a national registry of real estate debt interest transactions. Members of the MERS System assign limited interests in the real property to MERS, which is listed as a grantee in the official records of local governments, but the members retain the promissory notes and mortgage serving rights. The notes may thereafter be transferred among members without requiring recordation in the public records. [Citation.] [] Ordinarily, the owner of a promissory note secured by a deed of trust is designated as the beneficiary of the deed of trust. [Citation.] Under the MERS System, however, MERS is designated as the beneficiary in deeds of trust, acting as `nominee' for the lender, and granted the authority to exercise legal rights of the lender. This aspect of the system has come under attack in a number of state and federal decisions across the country, under a variety of legal theories. The decisions have generally, although by no means universally, found that the use of MERS does not invalidate a foreclosure sale that is otherwise substantively and procedurally proper." (Ibid.) Our California Courts of Appeal have only recently addressed MERS's role in decisions that "have come down on the side of MERS." (Id. at p. 268, citing Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes).) [2] In Fontenot, supra, 198 Cal.App.4th at page 273, the court stated: "There is nothing inconsistent in MERS's being designated both as the beneficiary and as a nominee, i.e., agent, for the lender. The legal implication of the designation is that MERS may exercise the rights and obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it will exercise those rights and obligations only as an agent for the lender, not for its own interests." [3] Our record does not include the purchase agreement or any details regarding this acquisition. [4] The date of the sale was later postponed to November 16, 2010. [5] Civil Code former section 2923.52 was repealed effective January 1, 2011. [6] In their appellate briefs, plaintiffs characterize portions of Leetham's declaration as constituting inadmissible hearsay. Plaintiffs did not raise any evidentiary objections in the trial court and have therefore forfeited such issues on appeal. [7] Our record does not show that foreclosure proceedings were concluded or that the property has been sold. [8] An order denying a preliminary injunction constitutes an appealable order. (Code Civ. Proc., 904.1, subd. (a)(6) [an appeal may be taken from

an order refusing to grant an injunction]); Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.) [9] Paragraph 24 of the trust deed stated: "Lender, at its option, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the Property is located. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page where this Security Instrument is recorded and the name and address of the successor trustee. Without conveyance of the Property, the successor trustee shall succeed to all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution." Plaintiffs do not contend that the procedures set forth in paragraph 24 were not followed. [10] At oral argument, plaintiffs' counsel cited an unpublished order, issued on July 18, 2011, by the United States Bankruptcy Court in In re Foster (Bankr. C.D.Cal., July 18, 2011, No. 8: 11-bk-15434-MW) 2011 Bankr.Lexis 3516, in support of the legal proposition that MERS's nomination lapsed upon the dissolution of New Century. Because this authority was cited for the first time at oral argument, the parties were permitted to file supplemental briefs addressing the relevance of the order, if any, to this appeal. As we explain post, this legal authority is irrelevant because the record does not contain evidence showing if or when New Century went out of business. [11] Civil Code section 2923.5, subdivision (a)(2) continues: "During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically." [12] Monica Cordonero's declaration was not filed with plaintiffs' moving papers, but was filed with plaintiffs' reply to defendants' opposition. The trial court pointed out in its minute order that Carlos Cordonero's declaration "says nothing about his wife Monica, whether she was contacted or not." It does not matter whether the trial court refused to consider Monica Cordonero's declaration or was unaware that it had been filed because plaintiffs' failure to produce evidence regarding contacts defendants may have had with plaintiffs' attorney rendered their prima facie showing of a violation of Civil Code section 2923.5, subdivision (a) incomplete.