What is a Cancellation of Instruments?

An “instrument” is “a written paper signed by a person or persons transferring the title to, or giving a lien on real property, or giving a right to a debt or duty.” (Gov. Code, § 27279.) Recordings not affecting title are not instruments. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1388, 1399-1400; Ward v. Super. Ct. (1997) 55 Cal.App.4th 60, 64-65.)

Section 3412 of the Code of Civil Procedure provides for the cancellation of an instrument. (Code of Civ. Proc., § 3412.) It states that a “written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” (Code of Civ. Proc., § 3412; Robertson v. Super. Ct. (2001) 90 Cal.App.4th 1319, 1324.)

Cancellation of an instrument is essentially a request for rescission of the instrument. (Bank of America v. Greenbach (1950) 98 Cal.App.2d 220, 228.) The effect of a decree cancelling an instrument is to place the parties where they were before the instrument was made, as if it had never been made. (Id. at 238.) A decree cancelling an instrument is equitable in nature and may be subject to equitable conditions, including reimbursement for the reasonable value of benefits conferred. (Ebbert v. Mercantile Trust Co. (1931) 213 Cal. 496, 501.)

Legal Standard

To plead a right to cancellation of an instrument, a plaintiff must allege the instrument is “void or voidable” and would cause “serious injury” if not canceled. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818-19; U.S. Bank N.A. v. Naifeh (2016) 1 Cal.App.5th 767, 774; Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1194.) “The injury referred to in section 3412 is not limited to pecuniary loss; it may be the alteration of one’s position to his prejudice.” (Turner v. Turner (1959) 167 Cal.App.2d 636, 641.)

The plaintiff must allege specific facts, “not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid.” (Ephraim v. Metropolitan Trust Co. (1946) 28 Cal.2d 824, 833-34; Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638.)

Promissory fraud is a basis for demonstrating the invalidity of an instrument in an action to cancel an instrument. (Lawrence v. Gayetty (1889) 78 Cal. 126, 131-132.) Notwithstanding the strict common law pleading requirements for causes of actions for damages for fraud (and somewhat surprisingly), general allegations of fraud are sufficient to allege the invalidity of an instrument in the absence of a special demurrer for uncertainty. (Larkin v. Mullen (1900) 128 Cal. 449, 453-454 [general demurrer properly overruled even though fraud alleged in general terms]; see also Campbell v. Genshlea (1919) 180 Cal. 213, 218.)

Statute of Limitations

The statute of limitations for a cause of action for cancellation of instruments is three years if based on fraud, otherwise, the statute is four years. (Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725.)

Useful Rulings on Cancellation of Instruments

Recent Rulings on Cancellation of Instruments

BENJAMIN F. POCO, ET AL. VS WORLD SAVINGS BANK, FSB, ET AL.

On June 3, 2019, Plaintiffs filed a complaint, asserting causes of action against Defendants Bank, All Persons Unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in this Complaint Adverse to Plaintiff’s [sic] Title or Any Cloud on Plaintiff’s [sic] Title Thereto (“All Persons”) and Does 1-10 for: Quite [sic] Title Cancellation of Instruments Violation of the California Homeowners Bill of Rights (“HBOR”) Breach of Contract Violation of Court Approved

  • Hearing

    Jul 15, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

LAURA JOANNE MEADOWS VS PLANET HOME LENDING, LLC, ET AL.

Cancellation of Instruments; 14. Violation of Business & Professions Code § 17200, 15. Accounting MEET & CONFER EFFORTS The exhibits to the demurrer establish that Defendants’ counsel diligently attempted to meet and confer with Plaintiffs prior to filing these motions. Plaintiffs refused to respond. It is worth noting that attorneys have made limited scope appearances for Plaintiffs.

  • Hearing

    Jul 14, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

ANDREW M. EGBE VS SELECT PORTFOLIO SERVICING, INC., ET AL.

The Complaint asserts causes of action for (1) fraud, (2) wrongful foreclosure, (3) quiet title, (4) declaratory relief, (5) slander of title, (6) slander of credit, (7) intentional infliction of emotional distress, (8) cancellation of instruments, and (9) unfair business practices. The Complaint alleges in pertinent part as follows. In August 2005, Plaintiff purchased real property located at 3539 South Cochran Avenue, Los Angeles, CA 90016 (Property). (Compl. ¶ 13.)

  • Hearing

    Jul 10, 2020

GEORGE KALO, TRUSTEE OF THE GEORGE E. KALO AND RIMONDA KALO REVOCABLE LIVING TRUST VS 1-800-BATTERY INC.

However, the 9th cause of action in the Second Amended Complaint is Cancellation of Instruments. Similarly, the motion seeks summary adjudication of the 11th cause of action for “Negligence.” In the Second Amended Complaint, the 10th cause of action is for “Negligence” while the 11th cause of action is for “Professional Negligence.” This is not a mere formality because the Statement of Undisputed Facts is also crafted in such a way that it addresses a superseded complaint.

  • Hearing

    Jul 10, 2020

FIONA DEARING, ET AL. VS PENTAGON FEDERAL CREDIT UNION, ET AL.

However, Defendant argues that Plaintiff’s claim for cancellation of instruments is time barred. Defendant argues that Plaintiff admits she has had an interest in title since August 13, 2015 but did not file this suit until January 20, 2020. However, this cause of action did not accrue until Defendant filed a notice of default in December of 2019. (Compl. ¶ 19; see Pl.’s RJN Exs. 8-9.) Plaintiff has pled a cause of action for cancellation of instruments.

  • Hearing

    Jul 09, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

ROSEMARY WOODS VS RAZ INVESTMENTS,INC., A CALIFORNIA CORPORATION, ET AL.

[The Court notes that while the caption indicates that the 1st cause of action is for “Quiet Title and Cancellation of Instruments,” the body of the FAC only refers to the cause of action as one for Quiet Title. To the extent Plaintiff’s cause of action is for cancellation of instruments, she has also failed to allege sufficient facts to support the cause of action.

  • Hearing

    Jul 09, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

MACK BROWN VS WESTERN PROGRESSIVE, ET AL.

Cancellation of Instruments 10. Slander of Title 11. Declaratory Relief 12. Intentional Infliction of Emotional Distress 13. Constructive Fraud Defendants concurrently move to strike all prayers for punitive damages and associated allegations. SUMMARY OF ALLEGATIONS The complaint is replete with unsupported legal conclusions which the court does not deem true even on demurrer. These include, but are not limited to, allegations of tolling due to concealment and malice.

  • Hearing

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

AZZOPARDI VS. DEUTSCHE BANK

The FAC alleges causes of action for (1) wrongful foreclosure; (2) declaratory relief; (3) cancellation of instruments; and (4) to set aside trustee’s sale. For the following reasons the Defendant’s Demurrer to Plaintiff’s cause of action for wrongful foreclosure is sustained, without leave to amend. Request for Judicial Notice Plaintiff requests judicial notice of a declaration filed in Case No. PS19-1246. Defendant objects. The Request is denied. Evid Code § 450.

  • Hearing

    Jul 02, 2020

CLAUDETTE MARIE LESLIE, ET AL. VS NEW CENTURY MORTGAGE CORPORATION, ET AL.

Bank National Assn. (2016) 247 Cal.App.4th 552, 565, 568 [“[W]e hold that Sciarratta has alleged the nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party, Bank of America, purportedly took a beneficial interest in the deed of trust was void,” and because it was void, “tender was not required to state a cause of action for quiet title or for cancellation of instruments.”])

  • Hearing

    Jun 30, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

ASATUR GALADJIAN, ET AL. VS INTER VALLEY ESCROW, INC., ET AL.

Plaintiffs obtained leave to add Quiet Title and Cancellation of Instruments causes of action. (JCP/Rediger Request for Judicial Notice Ex. 1.) Plaintiffs did not obtain leave to add this cause of action. Plaintiffs contend that the distinction between a Quiet Title cause of action and Slander of Title cause of action is slim. (Coley v.

  • Hearing

    Jun 26, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

JOSHUA M RODIN VS WESTBOURNE TOWNHOUSES HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION, ET AL.

Complaint Plaintiff Rodin commenced this proceeding on March 30, 2020, alleging causes of action for (1) declaratory relief, (2) quiet title, (3) wrongful foreclosure, (4) cancellation of instruments, (5) unfair business practices pursuant to Bus. & Prof. Code section 17200 et seq., and (6) civil conspiracy, also seeking the remedy of injunctive relief. The verified Complaint alleges in pertinent part as follows.

  • Hearing

    Jun 25, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

MICHAEL KEITH WILLIAMS VS DRAKE BUCHANAN

Probability of Success Williams asserts that he can demonstrate a probability of success on several of his claims, with forgery, identity theft, and cancellation of instruments being relevant for the purposes of the instant application. App. at 13. Williams argues that a showing that some documents for the Civic loan were forged is sufficient for him to prevail on his claims. App. at 13; Reply at 9-10.

  • Hearing

    Jun 23, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

BISAGNO V. RESOLVE DEFAULT SERVICES, LLC

Courts have applied the tender rule to causes of action for cancellation of instruments pertaining to the foreclosure process. See Kimball v. Flagstar Bank F.S.B., 881 F.Supp.2d 1209, 1225–1226 (S.D.Cal.2012); Adesokan v. U.S. Bank, N.A., 2012 WL 395969, at *4 (E.D.Cal. Feb. 7, 2012). In Adesokan, the court reasoned that “[w]ithout a meaningful tender of the amount due, cancellation of the instruments is an empty remedy which the Court cannot convey.” Adesokan, 2012 WL 395969, at *4.” (Rockridge Trust v.

  • Hearing

    Jun 05, 2020

SAVIOUR AZZOPARDI VS. DEUTSCHE BANK

Cancellation of Instruments (Civ. Code § 3412) Civil Code section 3412 provides a “written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.”

  • Hearing

    Jun 04, 2020

SNOWDEN V. OCWEN LOAN SERVICING

Ninth Cause of Action for Cancellation of Instruments Plaintiffs have not alleged willingness to tender the amount of indebtedness which is generally required for cancellation. (See Fleming v. Kagan (1961) 189 Cal.App.2d 791, 796.) Accordingly, the demurrer to the ninth cause of action for cancellation is sustained, with leave to amend.

  • Hearing

    Apr 20, 2020

  • Type

    Real Property

  • Sub Type

    other

SNOWDEN V. OCWEN LOAN SERVICING

Ninth Cause of Action for Cancellation of Instruments Plaintiffs have not alleged willingness to tender the amount of indebtedness which is generally required for cancellation. (See Fleming v. Kagan (1961) 189 Cal.App.2d 791, 796.) Accordingly, the demurrer to the ninth cause of action for cancellation is sustained, with leave to amend.

  • Hearing

    Mar 17, 2020

  • Type

    Real Property

  • Sub Type

    other

ANCHOR LOANS, LP, A DELAWARE LIMITED PARTNERSHIP VS BEATRICE MALDONADO, ET AL.

On January 6, 2020, Plaintiff filed the operative second amended complaint (“SAC”) against Defendants Beatrice Maldonado and Smart Solar Energy Sales, Inc. for (1) breach of guaranty; (2) fraud; (3) cancellation of instruments; (4) slander of title; and (5) negligence. The first cause of action is brought against Defendant Maldonado and Does 4-10. The second cause of action is brought against Defendants Maldonado, Marentes, Smart Solar, and Does 11-25.

  • Hearing

    Mar 05, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

LONNIE J. BLUNT, JR. VS OCWEN LOAN SERVICING, LLC, ET AL.

of instruments; (11) quiet title; (12) declaratory relief; (13) slander of title; and (14) defamation.

  • Hearing

    Mar 03, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

RODRIGUEZ VS OCWEN LOAN SERVICING LLC

Chicago Title Co. (2019) 32 Cal.App.5th 943, 952) The 8th cause of action for cancellation of instruments is based on the allegations that defendants do not have a valid interest in the loan. But as explained above, the recorded documents contradict the allegations. Further, plaintiff admits she signed the Deed of Trust and that her obligation under the loan was "rendered impossible to perform" by the original lender, GE Money Bank.

  • Hearing

    Feb 27, 2020

  • Type

    Real Property

  • Sub Type

    other

SPECOPSXR, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS INHANCE DIGITAL CORPORATION, A DELAWARE CORPORATION

The Cross-Complaint Inhance filed a Cross-Complaint against Cross-Defendants SpecOps, Penn Arthur (“Arthur”), and Isaac Medeiros (“Medeiros”) on February 4, 2020, alleging causes of action for (1) violation of Commercial Code section 9625; (2) cancellation of instruments; (3) declaratory relief; (4) breach of fiduciary duty; (5) aiding and abetting; and (6) ultra vires acts. The Cross-Complaint alleges in pertinent part as follows.

  • Hearing

    Feb 27, 2020

RODRIGUEZ VS OCWEN LOAN SERVICING LLC

Chicago Title Co. (2019) 32 Cal.App.5th 943, 952) The 8th cause of action for cancellation of instruments is based on the allegations that defendants do not have a valid interest in the loan. But as explained above, the recorded documents contradict the allegations. Further, plaintiff admits she signed the Deed of Trust and that her obligation under the loan was "rendered impossible to perform" by the original lender, GE Money Bank.

  • Hearing

    Feb 27, 2020

  • Type

    Real Property

  • Sub Type

    other

RODRIGUEZ VS OCWEN LOAN SERVICING LLC

Chicago Title Co. (2019) 32 Cal.App.5th 943, 952) The 8th cause of action for cancellation of instruments is based on the allegations that defendants do not have a valid interest in the loan. But as explained above, the recorded documents contradict the allegations. Further, plaintiff admits she signed the Deed of Trust and that her obligation under the loan was "rendered impossible to perform" by the original lender, GE Money Bank.

  • Hearing

    Feb 27, 2020

  • Type

    Real Property

  • Sub Type

    other

RENIA HARBIN VS US BANK NATIONAL ASSOCIATION, ET AL.

The Complaint asserts causes of action for (1) lack of title and standing, (2) negligent misrepresentation, (3) promissory estoppel, (4) breach of implied duty of good faith and fair dealing, (5) violation of Civil Code §§ 2924.17 and 2923.55, (6) violation of Homeowner’s Bill of Rights, (7) violation of B&P Code § 17200, (8) cancellation of instruments, (9) wrongful foreclosure, and (10) quiet title.

  • Hearing

    Feb 26, 2020

  • Type

    Real Property

  • Sub Type

    other

WILLIE CARR VS LAKEVIEW LOAN SERVICING LLC, ET AL.

Likewise, there is no basis to support Plaintiff’s 7th cause of action for CANCELLATION OF INSTRUMENTS and the 9th cause of action for QUIET TITLE because the complaint does not allege any underlying statutory violations or wrongful conduct. Further, the 8th cause of action for WRONGFUL FORECLOSURE fails because Plaintiff has not alleged that any sale took place. (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.) Thus, demurrers to the 6th – 9th causes of action are SUSTAINED.

  • Hearing

    Feb 26, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

  • Judge

    Lori Ann Fournier or Olivia Rosales

  • County

    Los Angeles County, CA

TONY TO CHONG LOO, ET AL. VS ZIXI LI, ET AL.

While Plaintiff argues that it generally has stated a cause of action for cancellation of instruments, the Court cannot find that it has done so with respect to Defendant (i.e., First American Title Company) specifically. Thus, demur to this causes of action is also SUSTAINED.

  • Hearing

    Feb 18, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

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