Case Number: VC065076 Hearing Date: July 21, 2016 Dept: SEC

GUDINO v. BANK OF AMERICA, N.A.
CASE NO.: VC065076
HEARING: 07/21/16

#4
TENTATIVE ORDER

Defendants BANK OF AMERICA, N.A. and DEUTSCHE BANK NATIONAL TRUST COMPANY’s demurrer to the complaint is SUSTAINED WITHOUT LEAVE TO AMEND. C.C.P. § 430.10(e).

Defendants’ attorney Timothy Moore submitted a declaration indicating that “he attempted to contact counsel” and that the parties were “unable to confer” and thus “unable to resolve the objections raised” by demurrer. C.C.P. § 430.41. Such effort is wholly inadequate. Counsel are obligated to make good faith efforts to meet and confer—telephonically or in person—to discuss the pleading issues.

Plaintiff GERARDO GUDINO asserts causes of action for violation of several provisions of the Homeowners’ Bill of Rights, negligence and unfair business practices.

As alleged, plaintiff obtained a loan to purchase the subject real property in March 2007. Comp., ¶8. Plaintiff submitted a modification application in February 2015. ¶13. Plaintiff does not allege he is in default on the loan (although certain allegations suggest that he is). As of the filing of the complaint on October 14, 2015, defendants had not responded to the application.

Plaintiff’s HBOR causes of action relate to defendants’ failure to provide a single point of contact (2923.7), failure to send a written acknowledgement of the application within 5 days (2924.10) and failure to send a written denial (2923.6). None of these alleged violations are material. Plaintiff does not allege he is in default, and cannot properly assert claims to prevent a foreclosure in the event of a default being recorded at some unknown point in the future.

Plaintiff also alleges a violation of section 2924.17 based on defendants’ alleged submission of inaccurate declarations in connection with February 2015 assignments. Comp., ¶31. It is not clear that section 2924.17 provides for a separate cause of action. Assuming it does, plaintiff has not articulated why he has standing to challenge the assignments or set forth any prejudice (or damages) as a result of the alleged fraudulent assignment.

Plaintiff’s negligence claim is based on the alleged HBOR violations and defendants’ failure to “TRULY ASSIST” (emphasis in original) plaintiff. Comp., ¶38. A negligence cause of action in the context of foreclosure cases has been recognized where the lender or servicer mishandles the application or is negligent in its processing. Alvarez v. BAC Home Loans Servicing (2014) 228 Cal.App.4th 941 (finding a plaintiff’s claims, which accrued before the enactment of the HBOR, could properly be pled in negligence). There are no such allegations here. It does not appear plaintiff took any steps to inquire about his application, and thus has no concrete basis to dispute defendant’s handling of the same. Moreover, his claim for damages is specious, insofar as it is premised on the assumption that plaintiff is legally entitled to a modification. See ¶43.

The unfair business practices claim (Business and Professions Code section 17200 et seq.) is derivative of the other causes of action. Plaintiff has not articulated a viable cause of action.

In his opposition, plaintiff requests leave to amend the cause of action for violation of section 2924.17, although he has not indicated how the claim can be amended. Because the borrower generally lacks standing to challenge an assignment to which he is not a party and because plaintiff has not shown the alleged acts are material, the request for leave to amend is denied.