Modification: Schep v. Capital One N.A.

RAYMOND A. SCHEP,

Plaintiff and Appellant,

v.

CAPITAL ONE, N.A.,

Defendant and Respondent.

No. B269724

(Los Angeles County

Super. Ct. No. BC533555)

California Courts of Appeal

Second Appellate District

Filed July 18, 2017

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:^*

It is ordered that the opinion filed herein on June 26, 2017, be modified as follows:

1. In the last paragraph on page 5 the words “and anticipate” are to be inserted between the words “contemplate” and “that,” so that the sentence reads:

Section 2924 is part of the article dealing with “Mortgages in General,” and two other sections within that article--- sections 2924.12 and 2924.19---specifically contemplate and anticipate that a trustee’s deed upon sale will be recorded as the capstone of the process of nonjudicial foreclosure.

2. On line 1 of page 6, the following sentence is to be inserted after the sentence ending with “(b).)” and before the sentence beginning with “Our Legislature’s purpose in”:

That these statutes do not expressly mandate that a trustee’s deed upon sale be recorded is of no consequence because recording of that deed will occur as a practical matter in every case and, more to the point, the recording of that deed is one of the “procedures set forth in th[e] article.”

3. On page 6, at the end of the first paragraph (line 13), add the following sentences:

What is more, that purpose is fulfilled only if the privilege applies with equal force to both the trustee who actually records the trustee’s deed upon sale as well as the principal who directs that recording. The statute itself speaks in terms of the “[p]erformance of the procedures” (§ 2924, subd. (d)(2); Kachlon, at p. 333), not who performs them. (See § 2924, subd. (a)(1)-(6) [authorizing filing of foreclosure notices by a “trustee, mortgagee, or beneficiary, or any of their authorized agents”]; but see Kachlon, at pp. 344-345 [not extending privilege to beneficiary that “present[ed] . . . written instructions, [] declar[ed] . . . default, and [] demand[ed] . . . sale” because those acts were not “procedures set forth in the statutory scheme”].) Because Capital One could not be liable for slander of title based on the recording of the trustee’s deed upon sale unless T.D. Service was acting as its agent (Alpers v. Brown (1882) 60 Cal. 447, 451 [“The act of the agent is the act of the principal”]; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 302 [“The principal is held vicariously liable . . . because justice requires that the enterprise be responsible for the risks of conducting its business”]), and because plaintiff so alleges, the privilege attaching to T.D. Service’s performance of procedures attaches to Capital One’s as well.

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

^* ASHMANN-GERST, Acting P. J., HOFFSTADT, J., GOODMAN, J^.†

^† Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.