Defendant Bank of America’s request for judicial notice of 7 documents recorded with the Orange County Recorder is granted. Plaintiff has not objected. Judicial notice of these documents may properly be taken pursuant to Evid. Code § 452(f) as to the existence of the recorded documents and their legal consequence. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264.

Defendant Bank of America’s demurrer to Plaintiff Truong’s Complaint is sustained with 15 days leave to amend as to the second, third, and fifth causes of action; it is overruled as to first and fourth causes of action

First Cause of Action for Violation of HOBR, Civ. Code § 2923.6(f)

Section 2923.6(f), which is part of the Homeowners Bill of Right (“HOBR”) that came into law on 1/1/13, requires a loan servicer, when denying a loan modification, to give the borrower a written notice identifying the reasons for the denial. Civ. Code § 2923.6(f). The provision further states that, “[i]f the denial was based on investor disallowance,” the notice must include “the specific reasons for the investor disallowance.” Civ. Code § 2923.6(f)(2).

Here, Bank of America provided Plaintiff with a written denial that stated modification was denied as his loan was owned by an investor and the investor has not given Bank of America the contractual authority to modify the loan. However, Plaintiff alleges that “specific reasons” were not set forth in the denial letters.

The Complaint states facts sufficient to constitute the first cause of action and the demurrer is overruled as to this count. Semole v. Sansoucie (19720 28 Cal.App.3d 714.

Second Cause of Action for Violation of Notice of Sale Requirements, Civ. Code § 2924f(b)(5)

Section 2924(f)(b)(b) requires certain information to be included in the notice of trustee’s sale. Plaintiff alleges that this section requires that “the name and address of the beneficiary at whose request the sale is to be conducted” be included but, in fact, it was not included in the notice of trustee’s sale recorded as to the property. [See Ex. E to Complaint.]

The statute actually states that, “[i] addition to any other description of the property, the notice shall describe the property by giving its street address, if any, or other common designation, if any, and a county assessor’s parcel number; but if the property has no street address or other common designation, the notice shall contain a legal description of the property, the name and address of the beneficiary at whose request the sale is to be conducted. . . Code Civ. Proc. § 2924f(b)(5).

On its face, this statutory language requires the notice to include the name and address of the beneficiary only when there is no street address or common designation for the property to be included in the notice. The notice of sale for Plaintiff’s property shows the street address of the property. [Complaint, Ex. E.] Accordingly, the beneficiary information was not required. As such, the second cause of action fails to state facts sufficient to constitute a cause of action and the demurrer is sustained as to this count.

Third Cause of Action for Violation of Notice of Sale Requirements, Civ. Code § 2923.3(c)(2)

For this cause of action, Plaintiff alleges that the notice of sale did not contain the information required under Civ. Code § 2923.3(c)(2). However, section 2923.3(c)(2) provides for information that must be included in the notice of default, not the notice of sale.

Therefore, the third cause of action fails to state facts sufficient to constitute a cause of action and the demurrer is sustained as to this count.

Fourth Cause of Action for Negligent Misrepresentation

The elements of a cause of action for negligent misrepresentation are: (i) A false statement of material fact that the Defendant honestly believes to be true, but made without reasonable grounds for such belief; (ii) made with the intent to induce reliance; (iii) Plaintiff’s reasonable reliance on the statement; and (iv) damages. Century Surety Co. v. Crosby Ins. (2004) 124 Cal. App. 4th 116, 129.

Plaintiff has alleged that Bank of America made a false statement of material fact that Bank of America honestly believes to be true, but made without reasonable grounds for such belief. Plaintiff alleges that:

“BANA misrepresented . . . that Wells Fargo was the investor under PLAINTIFF’s loan. Such misrepresentation was stated in both the March 15, 2013 and April 17, 2013 letters from BANA to PLAINTIFF.” [Complaint, Exs. B & C.]

“…BANA had no reasonable grounds for believing the misrepresentation to be true. In fact, if anyone should know the true identity of the investor it would be BANA, as loan servicer. . . BANA. . did conceal the identity of the true investor from PLAINTIFF.” [Complaint, ¶¶ 42-43.]

Plaintiff is correct in asserting that Bank of America certainly should have known who the correct investor/beneficiary was on his loan. It raises the question, why Bank of America advised plaintiff in writing that Wells Fargo was, when in fact it was not. [Complaint, Exs. B-D.] This is sufficient to show that the statements made by Bank of America’s agents or employees were made with a belief that they were true and that there was no reasonable grounds for such belief.

Plaintiff alleges that Bank of America intended for him to rely on the misrepresentation, so that Plaintiff would contact the wrong entity and not the correct entity, which would prevent him from being able to negotiate a payoff amount with the investor to prevent foreclosure, and it would allow Bank of America the ability and sufficient time to proceed with the foreclosure sale on the property. This allegation establishes the element of intent to induce reliance. [Complaint, ¶45.]

Plaintiff alleges that he reasonably relied on the statements that Wells Fargo was the investor because he contacted Wells Fargo directly to make a written demand for a copy of the promissory note or other evidence of indebtedness, payoff demand, etc. and subsequently learned that Wells Fargo was not the investor. [Complaint, ¶ 46.] In the meantime, Bank of America proceeded with the foreclosure process.

Although not specifically alleged in detail, the gist of Plaintiff’s detrimental reliance is presumed. During his futile efforts with Wells Fargo, Bank of America moved forward with the foreclosure process and Plaintiff was denied the ability to negotiate his loan payoff with the actual investor. Had he been provided with the correct investor’s name, he could have attempted to avoid foreclosure. It may prove to be speculation, but this reliance may also have been detrimental to Plaintiff as well.

Lastly, Plaintiff alleges despite numerous requests to Bank of America for the correct investor’s name, he hasn’t been provided this information, which has resulted in his inability to negotiate a payoff directly with the investor and avoid foreclosure. This constitutes damages. His alleged bad credit from the default and the legal fees to fend off the foreclosure sale, may or may not be damages due to his failure to make the loan payments as agreed and his failure to cure his default or due to Bank of America’s misrepresentation in stating the wrong investor to Plaintiff and then continuing to conceal the true identity of the beneficiary.

Based upon the foregoing, the Complaint states facts sufficient to constitute a cause of action and the demurrer to this cause of action is overruled.

Fifth Cause of Action for Unfair Business Practices

Presumably, this is an action for violation of B&P Code § 17200.

To state an Unfair Business Practices claim (UCL), Plaintiff must allege acts or injuries within the terms of B&P Code § 17200 which prohibits unfair competition, including unlawful, unfair or fraudulent business acts. Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal. 4th 163, 180. A UCL action is equitable in nature and damages cannot be recovered. Id. at 179-80. It requires a person to have suffered injury in fact and have lost money or property as a result of unfair competition in order to have standing for a UCL cause of action. Pfizer Inc. v. Superior Court (2010) 182 Cal. App. 4th 622, 630.

Plaintiff’s unfair business practices claim rests on his allegation that by misrepresenting the owner of his loan to be Wells Fargo and continuing to conceal the correct information, Bank of America has acted unfairly and denied Plaintiff an opportunity to negotiate with the true investor rather than through Bank of America.

But the conduct alleged is not unfair in the sense of giving rise to competitive injury. Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co., 20 Cal. 4th 163, 180 (1999). Nor is it clear – and Plaintiff does not argue – that it is unlawful or fraudulent.

Therefore, Plaintiff fails to state facts sufficient to constitute a cause of action and the demurrer to this count is sustained.

Moving party to give notice.