PATRICIA HICKERSON v. FINANCIAL FREEDOM SENIIOR FUNDING CORPORATION (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Demurrer

Appellants contend that the trial court erroneously sustained respondent's demurrer to the first cause of action for rescission of the mortgage agreement.   The court's ruling was based “on the ground that [respondent] was not a party” to that agreement.

“The standard of review on appeal following the sustaining of a demurrer is de novo.  [Citation.]  ․ [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  [Citation.]  When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  [Citations.]”  (Hervey v. Mercury Cas. Co. (2010) 185 Cal.App.4th 954, 960.)

As a matter of law, the complaint failed to state facts sufficient to constitute a cause of action for rescission against respondent because he was not a party to the mortgage agreement.  (See Civ.Code, §§ 1689, 1692.)   The parties to the agreement were the Hickersons (borrower) and PRM (lender).

In support of their contention that the first cause of action stated a cause of action for rescission again respondent, appellants rely upon Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541.   But this case supports the sustaining of the demurrer.   In Super 7 Motel Associates a purchaser of real estate sued a broker (Wang) and his client (seller) for fraud.   Both Wang and seller were also named as defendants in a cause of action for rescission of the purchase agreement even though Wang was not a party to that agreement.   Wang prevailed and sought to recover his attorney fees pursuant to the agreement.   The appellate court held that Wang was not entitled to attorney fees because he “was not ‘on the contract,’ and [plaintiff] neither sought nor could have obtained rescission of the contract against Wang.” (Id., at p. 549.)

Summary Adjudication

“The object of the summary adjudication procedure is to expedite litigation by eliminating the unnecessary trial of claims.  [Citation.]”  [¶] ‘A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.’   [Citation.]”  (Atkinson v. Elk Corp. of Texas (2006) 142 Cal.App.4th 212, 221.)

“ ‘A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion.’  “ (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 631, fn. 1.) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  A triable issue of material fact exists only if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.  [Citation.]”  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850;  see also Code Civ. Proc., § 437c, subd. (p)(2).)   The defendant also “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.”  (Aguilar v Atlantic Richfield Co., supra, 25 Cal.4th at p. 850) Where, as here, the burden of proof at trial is by a preponderance of the evidence, the defendant must “present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not․”  (Id., at p. 845.)   If the defendant carries this burden, the burden of production shifts to the plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.”  (Id., at p. 850.)   The plaintiff must present evidence that would allow a reasonable trier of fact to find the underlying material fact more likely than not.   (Id., at p. 852.)

On appeal we conduct a de novo review, applying the same standard as the trial court.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.)   Our obligation is “ ‘ “to determine whether issues of fact exist, not to decide the merits of the issues themselves.”  ‘ “ (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.)   We must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.”   (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

Although we conduct a de novo review, “[w]e must presume the judgment is correct․”  (Jones v. Department of Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1376.)   Thus, “[o]n review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.  [Citation.]  ․ ‘[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues.   As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.’  “ (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230;  accord, Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140 [on appeal after a motion for summary judgment has been granted, “[t]he appellant has the burden of showing error occurred”].)  “An issue of fact is not created by speculation, conjecture, imagination, or guesswork;  it can be created only by a conflict in the evidence submitted to the trial court in support of and in opposition to the motion.  [Citation.]”  (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)

Cause of Action for Fraud

As to the fifth cause of action for fraud, the trial court concluded:  “There is no triable issue of material fact with regard to actual and reasonable reliance by Richard and/or Patricia Hickerson on the alleged misrepresentations.”  “ ‘The necessary elements of fraud are:  (1) misrepresentation (false representation, concealment, or nondisclosure);  (2) knowledge of falsity (scienter);  (3) intent to defraud (i.e., to induce reliance);  (4) justifiable reliance;  and (5) resulting damage.’   [Citations.]”  (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, fn. omitted.)   To establish the element of justifiable reliance, “a plaintiff must demonstrate that he or she actually and reasonably relied upon a representation made by the defendant.  [Citation.]”  (Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1419.)   Actual “reliance is proved by showing that the defendant's misrepresentation or nondisclosure was ‘an immediate cause’ of the plaintiff's injury-producing conduct.  [Citation.]  A plaintiff may establish that the defendant's misrepresentation [or nondisclosure] is an ‘immediate cause’ of the plaintiff's conduct by showing that in its absence the plaintiff ‘in all reasonable probability’ would not have engaged in the injury-producing conduct.  [Citation.]”  (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1111.)

As to the justifiable reliance element of fraud, appellants contend that there were triable issues of material fact for two reasons.   First, appellants' “expert, Tom Tarter, opined in his declaration that due to the omission of a zero percent appreciation amortization schedule, the Hickersons were unable to appreciate the risk that the loan presented to their return equity.”   Appellants are referring to a loan amortization schedule that respondent presented to the Hickersons.   The schedule provided an estimate of the Hickersons' future retained equity in their home based on a projected home price appreciation of four percent per annum.

The trial court granted respondent's motion to exclude Tarter's opinion on grounds of “[l]ack of personal knowledge (Evid.Code, § 702, subd. (a));  insufficient foundation (Evid.Code, § 403);” and inadequate qualifications to render an expert opinion on this matter.  (Id., § 720.)  “We review the trial court's evidentiary rulings on summary judgment for abuse of discretion.  [Citations.]  As the parties challenging the court's decision, it is [appellants'] burden to establish such an abuse, which we will find only if the trial court's order exceeds the bounds of reason.  [Citation.]”  (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)   Appellants have not carried their burden of establishing an abuse of discretion.   They have not even discussed this issue.   Accordingly, we do not consider Tarter's opinion.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)

In any event, appellants have failed to point to evidence raising a triable issue whether the Hickersons would have entered into the mortgage agreement had respondent provided them with both zero and four percent home appreciation amortization schedules.   Nothing in the record indicates what the Hickersons' future retained home equity would have been under a zero percent appreciation schedule.   Moreover, the Hickersons surely understood that respondent was not guaranteeing that their home would appreciate at a rate of four percent per annum.   The amortization schedule states that “home value projections may vary from amounts shown.”   Another disclosure document received by the Hickersons contains a table that “shows the cost of the loan, assuming the value of your home appreciates at three different rates:  0%, 4% and 8%.”

As their second reason for contending that triable issues existed on the justifiable reliance issue, appellants assert:  “Tarter also opined that the presentation given by [respondent] on March 11, 2005 gave misleading facts regarding the risks of Reverse Mortgages and the rights of the owners (by omitting facts about default and home owner rights).”   The only misleading fact actually identified by appellants is respondent's alleged “failure to explain that default could be triggered by the occupancy requirement.”   But on March 11, 2005, appellants signed a disclosure document stating that the lender could terminate the reverse mortgage loan if the borrower's home “is no longer the principal residence of at least one Borrower” or if “[n]o Borrower maintains the Property as a principal residence for a period exceeding 12 months because of physical or mental illness.”   On the same date, respondent used a “flip chart” to make a presentation to the Hickersons about reverse mortgages.   One page of the flip chart advises the borrower that, to maintain the reverse mortgage, “[y]ou must maintain the quality of your home and live in it as your primary residence.”  (Italics added.)   Respondent testified that he read each page of the flip chart to the Hickersons “[l]ine by line, very slowly, very deliberately.”   Nothing in the record contradicts respondent's testimony.

Appellants argue:  “Of equal importance ․ was the failure by the Trial Court to consider the impact of the ruling that there was a triable issue of capacity [as to the first cause of action for rescission].”   There is no evidence that the trial court did not consider this factor.  “In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors.  [Citation.]”  (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.)   The trial court's denial of summary adjudication on the rescission cause of action is not before us.   Furthermore, we conduct a de novo review and do not defer to the trial court's ruling.   Appellants have failed to demonstrate that the Hickersons' alleged lack of capacity to enter into the mortgage agreement raises a triable issue as to the fraud cause of action.

Statute of Limitations

As to the third and fourth causes of action (unfair competition and financial elder abuse), the trial court concluded that “the only claim as to which there is a triable issue of material fact” is the alleged violation of the Federal Truth in Lending Act (TILA).  (15 U.S.C. § 1601 et seq.) ³  (10AA 2271) The particular violation was of the Code of Federal Regulations, title 12, section 226.31(c)(2).   This section requires the reverse mortgage lender to make specific disclosures in writing to the borrower “at least three business days prior to:  [¶] (i) Consummation of a closed-end credit transaction;  or [¶] (ii) The first transaction under an open-end credit plan.”   (Ibid.) The violation of this section allegedly occurred because the final written disclosures were made on the date that the Hickersons signed the mortgage agreement—May 12, 2005—instead of three business days before that date.   The court granted summary adjudication because “the applicable statute of limitation is 1 year, as established by 15 USC 1640(e),” and “[t]here is no triable issue of material fact with regard to expiration of this statute of limitation.”

The statute of limitations is an affirmative defense.  (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 687.)  “A defendant moving for summary judgment based on an affirmative defense must present evidence that supports each element of its affirmative defense, which would also be its burden at trial.  [Citation.]”  (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292–1293.)   Respondent met his burden of production.   Appellants did not allege the TILA violation until the filing of their second amended complaint in May 2009.  (1AA 56, 65) The one-year limitations period began to run four years earlier when the reverse mortgage transaction was consummated.  (King v. State of Cal. (9th Cir.1986) 784 F.2d 910, 915.)

Appellants contend that there is a triable issue whether the running of the one-year limitations period was equitably tolled because of the Hickersons' mental disabilities.   Since respondent “met [his] burden of production on [his] statute of limitations affirmative defense, the burden of production shifted to [appellants] to raise a triable issue of material fact on the matter of [equitable tolling]. (§ 437c, subd. (p)(2).)”  (Acosta v. Glenfed Development Corp., supra, 128 Cal.App.4th at p. 1293.)

“Tolling is appropriate only if the mental illness actually prevents the plaintiff from understanding his or her legal affairs and from complying with the time limit.  [Citation.]  A diagnosis of mental illness is not enough to justify tolling without evidence that the illness actually prevented the plaintiff from complying with the deadline.  [Citations.]”  (Jessie v. Potter (8th Cir.2008) 516 F.3d 709, 714;  see also Barrett v. Principi (Fed.Cir.2004) 363 F.3d 1316, 1321 [“A medical diagnosis alone or vague assertions of mental problems will not suffice” to obtain the benefit of equitable tolling].)   Appellants have failed to point to evidence in the record raising a triable issue whether the Hickersons' alleged mental disabilities actually prevented them from complying with the one-year TILA deadline.

In any event, the Hickersons' alleged mental disabilities did not affect Jolley and Keegan.   Jolley testified that between July and September 2005 she and Keegan found the loan documents in a filing cabinet in their parents' home office.   In May 2006 Jolley “fully” discussed the matter with counsel.   Furthermore, Jolley, Keegan and Patricia were represented by counsel on January 9, 2008, when the original complaint was filed.   This was approximately 16 months before the filing of the second amended complaint in May 2009.   It is therefore reasonable to infer that Jolley and Keegan, as well as Patricia through her counsel, had reasonable opportunity to discover nondisclosures constituting the TILA violation more than one year before the filing of the second amended complaint.  “[T]he doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action.”  (King v. State of Cal., supra, 784 F.2d at p. 915.)

We recognize that Jolley declared that she did not learn of the alleged TILA violation until after the action “had been filed and discovery had been conducted.”  (3AA 696) But the issue is not when Jolley learned of a legal theory.   The issue is when she discovered, or had reasonable opportunity to discover, any nondisclosures constituting the alleged TILA violation.  (King v. State of Cal., supra, 784 F.2d at p. 915.)   Appellants have failed to point to evidence raising a triable issue whether Jolley did not have reasonable opportunity to discover the nondisclosures more than one year before the filing of the second amended complaint in May 2009.⁴  Appellants have therefore not carried their burden “to affirmatively demonstrate error” by the trial court in granting summary adjudication as to the TILA statute of limitations issue on the third and fourth causes of action.  (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)

Cause of Action for Financial Elder Abuse

“ ‘Financial abuse’ “ of an elder ․ adult occurs when a person or entity ․ [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”  (Welf. & Inst.Code, § 15610.30, subd. (a)(1).)  “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder ․ adult.”  (Id., subd. (b).)

Appellants contend that, under a wrongful use theory, there was a triable issue whether respondent knew or should have known that a reverse mortgage would be harmful to the Hickersons because of their mental and physical problems.   The contention lacks merit.   It is based on three theories.   The first is the following

The second theory is based upon the following opinion of Patricia's treating physician since 2008, Dr. James P. Sutton:  “I don't think it would have been difficult for a non-clinical person to assess Mrs. Hickerson as being impaired.”   But it was not respondent's responsibility to undertake an assessment of her mental condition.   Even if respondent had been aware that Patricia was cognitively impaired to some degree, it is speculative to assume that he knew or should have known that the reverse mortgage was likely to be harmful to the Hickersons.   Dr. Sutton did not specify the degree of impairment that would have been evident to a non-clinical person in May 2005.   It may well be that the degree of impairment was minimal or, on the days respondent met with Patricia, she was functioning completely normally.   Furthermore, the reverse mortgage would have some obvious beneficial effects for the Hickersons.   It would create extra income by freeing the Hickersons from the obligation of making monthly payments on their existing mortgage.   It would also provide them with a lump sum of $81,418.22.   The extra income and lump sum could be used to care for Patricia.

Constructive Fraud

“ ‘ “Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.”  [Citation.]  [¶] “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.”  ‘ “ (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)   As to the sixth cause of action for constructive fraud, the trial court concluded:  “There is no triable issue of material fact with regard to the existence of a fiduciary or confidential relationship giving rise to a duty to the Hickersons.”

Appellants contend that a “triable issue of fact existed on the element of a ‘confidential relationship’ for Constructive Fraud.”  “It is well settled that ‘[a] confidential relationship exists when one party gains the confidence of the other and purports to act or advise with the other's interests in mind;  it may exist although there is no fiduciary relationship;  it is particularly likely to exist when there is a family relationship or one of friendship.’   [Citations.]  It has been more succinctly said that ‘[a] confidential relationship exists when trust and confidence are reposed by one person in the integrity and fidelity of another.’  [Citation.]”  (Estate of Sanders (1985) 40 Cal.3d 607, 615.)

In arguing that there was a triable issue on the existence of a confidential relationship between respondent and the Hickersons, appellants rely in part on the opinion of Tom Tarter.   Tarter opined that there was a “special relationship” between respondent and the Hickersons because respondent had been involved in the amendment of the Trust.   On May 12, 2005, the Trust was amended to provide that the trustees shall immediately notify the lender of any of the following events:  “The death of any Beneficiary, or Any change of occupancy by any Beneficiary, or Any conveyance of the property, or Any transfer of any beneficial interest in the property.”   The amendment explains that the loan “may not be insured unless the Trust provides the Lender with a re[a]sonable means to assure the Lender it will be notified of any subsequent change of occupancy or transfer [of] beneficiary interest in the property.”   As a matter of law, this amendment of the Trust for the purpose of securing insurance for the loan did not create a confidential relationship between respondent and the Hickersons.

Appellants argue that the existence of a confidential relationship is supported by a letter respondent sent to Patricia in which he referred to himself as a “Certified Senior Advisor.”   The letter was sent approximately six months after the closing of the reverse mortgage transaction.   In the letter respondent recommended that Patricia purchase a nutritional product called “JuicePlus+.”  Respondent declared:  “As a Certified Senior Advisor, I work with many who strive to prepare financially for retirement but, due to poor health, never realize longevity.   If you would like to know more about JuicePlus+, please give me a call or visit my web site (listed below).   Without your health, you cannot enjoy your wealth.”   Because the letter was sent months after the closing and its purpose was to sell a nutritional product rather than provide financial advice, the letter does not support the existence of a confidential relationship at the time of the closing.

Finally, appellants claim that the existence of a confidential relationship is supported by “the close friendship alleged to have been established between [respondent] and Richard Hickerson.”   But appellants have failed to point to evidence supporting the establishment of such a “close friendship.” ⁵  In any event, mere friendship is insufficient to establish a confidential relationship.  (Kudokas v. Balkus (1972) 26 Cal.App.3d 744, 750;  Schultz v. Steinberg (1960) 182 Cal.App.2d 134, 138;  Wilson v. Sampson (1949) 91 Cal.App.2d 453, 459.)   Thus, there is no triable issue concerning the sixth cause of action for constructive fraud.

Cause of Action for Negligence

As to the second cause of action for negligence, the trial court granted summary adjudication on the ground that “[t]here is no triable issue of material fact with regard to duty.”   Appellants contend that there are triable issues whether respondent had a duty to inquire about the Hickersons' mental and physical health.   Appellants' contention is based on the following opinion of Tom Tarter:  “The failure to inquire about the serious medical conditions of the Hickersons and their mental capacity while selling them a reverse mortgage was below the professional standard of the industry for a reverse mortgage lender and a financial advisor.”   The trial court granted respondent's motion to exclude Tarter's opinion on grounds of “lack of personal knowledge (Evid.Code, § 702, subd. (a)) [and] insufficient foundation (Evid.Code, § 403).”

Appellants have not carried their burden of showing that the trial court abused its discretion in excluding Tarter's opinion.  (DiCola v. White Bros. Performance Products, Inc., supra, 158 Cal.App.4th at p. 679.)   Appellants have failed to point to evidence showing that respondent was acting as the Hickersons' financial advisor.   Respondent was acting as an agent of a reverse mortgage lender.   Appellants have also failed to point to evidence showing that respondent's involvement in the loan transaction exceeded the scope of the conventional role for such an agent.  “[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.  [Citations.]  ․ ‘Liability to a borrower for negligence arises only when the lender “actively participates” in the financed enterprise “beyond the domain of the usual money lender.”   ‘ [Citation.]”  (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096;  fn, omitted, accord, Wagner v. Benson (1980) 101 Cal.App.3d 27, 35.)

Finally, appellants have failed to point to evidence that should have put respondent on notice that the Hickersons might have been suffering from serious medical conditions or might lack the mental capacity to enter into the mortgage agreement.   Without such evidence, there could be no duty of inquiry.

Disposition

The appeal from the order granting summary adjudication for PRM is dismissed.   The judgment in favor of respondent is affirmed.   Respondent shall recover his costs on appeal.

NOT FOR PUBLICATION

We concur:

Superior Court County of Ventura

Brice E. Bryan, Christopher J. Brantingham;  Brice E. Bryan, & Associates, for Appellants.

Theodore Steven Gregor;  Dorazio & Gregor, for Respondents.

FOOTNOTES

FN3. “TILA ‘requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights.’   [Citation.]  Failure to satisfy TILA's disclosure requirements subjects a lender to ‘statutory and actual damages traceable to a lender's failure to make the requisite disclosures․  [Citation.]   TILA imposes a one-year statute of limitations within which a claim for damages ‘may be brought.’   15 U.S.C. § 1640(e).”  (Sullivan v. JP Morgan Chase Bank, NA (E.D.Cal.2010) 725 F.Supp.2d 1087, 1092.).  FN3. “TILA ‘requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights.’   [Citation.]  Failure to satisfy TILA's disclosure requirements subjects a lender to ‘statutory and actual damages traceable to a lender's failure to make the requisite disclosures․  [Citation.]   TILA imposes a one-year statute of limitations within which a claim for damages ‘may be brought.’   15 U.S.C. § 1640(e).”  (Sullivan v. JP Morgan Chase Bank, NA (E.D.Cal.2010) 725 F.Supp.2d 1087, 1092.)

FN4. Jolley did not identify the specific loan documents that she and Keegan had found in 2005.   If these loan documents included the final written disclosures made to the Hickersons on May 12, 2005, the documents should have put Jolley and Keegan on notice of the nondisclosures constituting the alleged TILA violation.   The final written disclosures show that they were signed by the Hickersons on May 12, 2005, the same date that the mortgage agreement was signed.   The written disclosures also show that they were printed on May 10, 2005, two days before the agreement was signed.   Thus, on their face the written disclosures could not have been provided to the Hickersons three business days before the consummation of the reverse mortgage transaction..  FN4. Jolley did not identify the specific loan documents that she and Keegan had found in 2005.   If these loan documents included the final written disclosures made to the Hickersons on May 12, 2005, the documents should have put Jolley and Keegan on notice of the nondisclosures constituting the alleged TILA violation.   The final written disclosures show that they were signed by the Hickersons on May 12, 2005, the same date that the mortgage agreement was signed.   The written disclosures also show that they were printed on May 10, 2005, two days before the agreement was signed.   Thus, on their face the written disclosures could not have been provided to the Hickersons three business days before the consummation of the reverse mortgage transaction.

FN5. Appellants' attempt to rectify this omission in their reply brief is too late.  (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [“Appellants may not attempt to rectify their omissions and oversights for the first time in their reply briefs because this deprives the opposing party of an opportunity to respond”].).  FN5. Appellants' attempt to rectify this omission in their reply brief is too late.  (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [“Appellants may not attempt to rectify their omissions and oversights for the first time in their reply briefs because this deprives the opposing party of an opportunity to respond”].)

COFFEE, J. PERREN, J. David R. Worley, Judge