Case Number: TC028896 Hearing Date: March 08, 2018 Dept: A

# 5. Dorothy J. Compton v. HSBC Bank USA, et al.

Case No.: TC028896

Matter on calendar for: Hearing on unopposed demurrer and motion to strike

Tentative ruling:

I. Background

Self-represented Plaintiff Dorothy J. Compton’s First Amended Complaint (“FAC”) asserts thirteen causes of action arising from the anticipated foreclosure of her home. She alleges that there is no chain of title running from Defendant Wells Fargo Bank N.A. to Defendant HSBC Bank USA such that neither Defendant has standing to foreclose. Defendants HSBC and Wells Fargo demur to the entire FAC, and move to strike portions of the FAC.

The demurrer and motion to strike are unopposed.

The Court sustained these Defendants’ demurrer to Plaintiff’s original complaint with leave to amend on December 19, 2017. At the February 7, 2018 Case Management Conference, the Court noted that Plaintiff “intends to move for leave to file a second amended complaint.” (February 7, 2018 Minute Order.) Plaintiff has not done so.

II. Standard

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) A plaintiff must allege the “essential facts… with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) The Court makes no factual findings on demurrer. (Id.)

III. Analysis

The Court grants Defendants’ request for judicial notice pursuant to Evid. Code § 452.

Judicially noticeable facts show:

· Plaintiff obtained a loan from Wells Fargo secured by a deed of trust, the beneficial interest was assigned to HSBC, and Wells Fargo services the loan on HSBC’ s behalf;

· In November 2010, Plaintiff and Wells Fargo executed a loan modification agreement;

· Plaintiff defaulted on the modified loan;

· A Substitution of Trustee was recorded in May 2017 and a Notice of Default was recorded in June 2017.

· No foreclosure sale has occurred. (See Complaint.)

Defendants’ demurrer is meritorious:

· The first cause of action for “Lack of Standing/Wrongful Foreclosure” fails because (1) judicially noticeable recorded documents show that there is a recorded chain of title running from Wells Fargo to HSBC, and (2) Plaintiff has not alleged that a foreclosure sale has occurred.

· The second and third causes of action for fraud fail because Plaintiff has failed to plead the elements of fraud, and the claims appear to be time-barred.

· The fourth cause of action for “Unconscionable Contract” fails because Plaintiff has failed to plead facts showing the contract was unconscionable, and the claim appears to be time-barred.

· The fifth cause of action fails because there is generally no fiduciary relationship between a bank and its customers.

· The sixth cause of action for quiet title fails because Plaintiff has not alleged that she tendered her debt.

· The seventh cause of action for slander of title fails because it is based on a privileged act.

· The eighth cause of action for Homeowner’s Bill of Rights violations fails because those alleged violations are immaterial.

· The ninth cause of action for violation of 15 U.S.C. § 1461(g) appears to be time-barred.

· The tenth cause of action for violation of C.F.R. § 1024.41(b)(2)(i)(A) fails because Plaintiff concedes she was already reviewed for a loan modification.

· The eleventh cause of action for Violation of Fair Debt Collection Practices Act fails because Plaintiff has not alleged facts sufficient to constitute a cause of action under 15 U.S.C. § 1692.

· The twelfth cause of action for declaratory relief fails because the other claims are defective.

· The thirteenth cause of action for Penal Code §§ 368(d) and (e) fails because there is no private right of action to enforce the Penal Code.

Absent an opposition, the Court sustains the demurrer. The Court grants leave to amend one more time.

The Court denies the motion to strike as moot.

IV. Ruling

The Court sustains the demurrer with 20 days’ leave to amend. Any responsive pleading must be filed and served 20 days thereafter, or 25 days if served by mail.

The Court denies the motion to strike.