Case Number: BC610100 Hearing Date: July 20, 2016 Dept: 56

Case Name: Urbina, et al. v. Seneca Mortgage Servicing, LLC
Case No.: BC610100
Matter: Demurrer to Complaint

Tentative Ruling: Demurrer is sustained.

Plaintiffs Jose and Aura Urbina filed this action against Defendant Seneca Mortgage Servicing LLC. Plaintiffs allege that Defendant failed to provide a loan modification, and they assert causes of action for (1) violation of Civil Code § 2923.7, (2) violation of Civil Code § 2923.6, (3) violation of Civil Code § 2924.10, (4) negligence, and (5) violation of Bus. & Prof. Code § 17200. Defendant demurs to the Complaint. In connection with the demurrer, Defendant requests judicial notice of recorded grant deeds and the deed of trust; the RJN is granted.

Indispensable Parties –
Plaintiffs’ action concerns a loan secured by real property, but they have failed to include Jose Alfaro who is named on the loan and title to the property, and Rosa Alfaro who was previously named on the title. Plaintiffs’ opposition fails to address this issue. The demurrer is sustained on the ground that Plaintiffs have failed to name necessary and indispensable parties pursuant to CCP §389. See Mut. Bank v. Blechman (2007) 157 Cal.App.4th 662, 667-69.

HBOR Claims –
Defendant demurs on the ground that Plaintiffs have failed to allege facts supporting the HBOR claims. The Court agrees in part.

The purpose of HBOR is to impose requirements “as part of the nonjudicial foreclosure process”. See Civil Code § 2923.4(a). But Plaintiffs have not alleged that the nonjudicial foreclosure process has been commenced. Therefore, Plaintiffs’ requests for injunctive relief are premature, as there is nothing to enjoin. The demurrer is sustained for the 1st through 3rd COAs on this ground.

Plaintiffs allege that they submitted a complete loan modification application. But this is conclusory because it fails to allege that all required documents have been supplied, which is an element of their claim. See CCP §§ 2923.6(h) & 2924.10(b). The demurrer is sustained for the 2nd and 3rd COAs on this ground.

Negligence –
Plaintiff’s 4th COA is based on negligence in reviewing Plaintiffs’ loan modification application, but there is no legal duty of care in connection with consideration for a loan modification. E.g. Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68-69. The demurrer is sustained for the 4th COA.

B&P Code § 17200 –
The 5th COA is based on the other claims, and is deficient for the same reasons. The demurrer is sustained for the 5th COA.

Ruling –
The demurrer is sustained for all COAs and for failure to join indispensable parties. If Plaintiffs seek leave to amend, this should be argued at the hearing.