Defendants Deutsche Bank and Residential Credit Solutions’ Demurrer to First Amended Complaint

As an initial matter, Defendants’ Request for Judicial Notice is granted in its entirety. A court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. Fontenot v. Wells Fargo (2011) 198 Cal.App.4th 256, 265.

The demurrer to all causes of action by Residential Credit Solutions for failure to allege facts against this moving defendant is overruled. Plaintiff has alleged that Residential is a successor to Ocwen and GMAC as well as Deutsche Bank’s agent. An assignee stands in the shoes of the assignor, acquiring all of its rights and liabilities. See Professional Consultants v. Hanada (1997) 53 Cal.App.4th 1016, 1018-1019.

Defendants’ demurrer to the first cause of action for breach of contract is overruled. First, Plaintiff has alleged successor in interest and agency; thus, the failure to allege that the moving defendants were ‘parties to the contract’ is irrelevant. Secondly, while Plaintiff does admit to a breach of the Deed of Trust by transferring title to his trust in violation of paragraph 18 of the DOT, this court cannot determine as a matter of law that such breach was a material breach so as to negate the statements that Plaintiff performed his terms of the contract and was not in breach himself.

The demurrer to the second cause of action for promissory estoppel is sustained with leave to amend. Plaintiff has failed to allege a clear and unambiguous promise. A promise is not clear and unambiguous if the promise is still subject to further negotiations and/or approval. Lockheed Missile & Space Co. v. Hughes Aircraft Co. (1995) 887 F.Supp. 1320, 1325. However, as to the argument that reliance was not set forth, this court finds that the required element has been met, at the pleading stage, by alleging that Plaintiff deeded title back to his own name.

The demurrer to the third cause of action for negligence is sustained with leave to amend. A financial institution generally has no duty of care to a borrower unless the institution exceeds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095.

The demurrer to the fourth cause of action for violation of Civil Code §2923.5 is sustained without leave to amend. Plaintiff’s allegation of no contact prior to the recording of the Notice of Default is directly contradicted by Plaintiff’s allegations in the First Amended Complaint. See ¶¶23-28 of FAC.

The demurrer to the fifth cause of action for violation of Civil Code §2924 is sustained without leave to amend. The complaint fails to show that plaintiffs are parties or third parties beneficiaries to the Pooling and Servicing Agreement, so they have no standing. Bascos v. Fed. Home Loan Mortg. Corp. (C.D. Cal. 7/22/11) 2011 WL 3157063. Moreover, the law is clear that the power of sale is not disrupted by securitization. Hafiz v. Greenpoint Mortgage Funding (N.D. Ca. 2009) 652 F. Supp.2d 1039, 1043.

The demurrer to the sixth cause of action for declaratory relief is sustained with leave to amend. The very issues that are raised in this cause of action will be resolved by other causes of action so this request for declaratory relief is unnecessary and serves no purpose. California Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623.

The demurrer to the seventh cause of action for violation of Civil Code §2923.6 is sustained without leave to amend. There can be no violation of Civil Code §2923.6 because Plaintiff admits he was previously evaluated and approved for a loan modification prior to January 1, 2013, This provision specifically exempts any violation of this statute for “borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013…”

The demurrer to the eighth cause of action for an accounting is overruled. Plaintiff alleges the amount due is disputed and the claim is properly pled. See ¶152.

The demurrer to the ninth cause of action for conspiracy is sustained with leave to amend. A claim for conspiracy, standing alone, is not a cognizable cause of action. Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 511. There must be a predicate tort. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541. Plaintiff must plead facts relating to the actual tort and the conspiracy therewith.

The demurrer to the tenth cause of action for violation of B&P §17200 is sustained with leave to amend. Plaintiff must allege with particularity how each defendant and what role each defendant played in violating the UCL’s unlawful prong or what practice is unfair. Additionally, to the extent Plaintiff alleges fraud, the cause of action fails because it is not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Also, claims against a corporation must include the names of the persons who made the misrepresentation, their authority, to whom they spoke, what they said, and when it was said. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must also allege injury in fact.

Any amended complaint shall be served and filed by March 24, 2014.
 
Defendants Deutsche Bank and Residential Credit Solutions’ Motion to Strike Portions of First Amended Complaint

The motion to strike the demands for punitive damages is granted with leave to amend. Here, only the ninth cause of action for civil conspiracy potentially supports a claim for punitive damages. However, as set forth above, such cause of action is not adequately pled. Moreover, no facts are set forth to support oppression, fraud, or malice and/or a willful and conscious disregard.

Any amended complaint shall be served and filed by March 24, 2014.

Defendants GMAC Mortgage and Ocwen Loan Servicing’s Demurrer to First Amended Complaint

As an initial matter, Defendants’ Request for Judicial Notice is granted as to items 1, 2, and 4. The court also takes judicial notice that item 3 was filed, not the truth of the contents thereof.

The demurrer to the first cause of action for breach of contract is overruled. First, ¶16 of the FAC states that a fully executed copy of the agreement exists. Moreover, to the extent that such agreement was not signed, Plaintiff has pled facts to support partial performance, which sets the agreement outside of the Statute of Frauds.

The demurrer to the second cause of action for promissory estoppel is sustained with leave to amend. Plaintiff has failed to allege a clear and unambiguous promise. A promise is not clear and unambiguous if the promise is still subject to further negotiations and/or approval. Lockheed Missile & Space Co. v. Hughes Aircraft Co. (1995) 887 F.Supp. 1320, 1325. However, as to the argument that reliance was not set forth, this court finds that the required element has been met, at the pleading stage, by alleging that Plaintiff deeded title back to his own name.

The demurrer to the third cause of action for negligence is sustained with leave to amend. A financial institution generally has no duty of care to a borrower unless the institution exceeds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095. Moreover, as currently pled, such cause of action appears barred by the applicable statute of limitations against these moving defendants.

The demurrer to the fourth cause of action for violation of Civil Code §2923.5 is sustained without leave to amend. Plaintiff’s allegation of no contact prior to the recording of the Notice of Default is directly contradicted by Plaintiff’s allegations in the First Amended Complaint. See ¶¶23-28 of FAC.

The demurrer to the fifth cause of action for violation of Civil Code §2924 is sustained without leave to amend. The complaint fails to show that plaintiffs are parties or third parties beneficiaries to the Pooling and Servicing Agreement, so they have no standing. Bascos v. Fed. Home Loan Mortg. Corp. (C.D. Cal. 7/22/11) 2011 WL 3157063. Moreover, the law is clear that the power of sale is not disrupted by securitization. Hafiz v. Greenpoint Mortgage Funding (N.D. Ca. 2009) 652 F. Supp.2d 1039, 1043.

The demurrer to the sixth cause of action for declaratory relief is sustained with leave to amend. The very issues that are raised in this cause of action will be resolved by other causes of action so this request for declaratory relief is unnecessary and serves no purpose. California Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623.

The demurrer to the seventh cause of action for violation of Civil Code §2923.6 is sustained without leave to amend. There can be no violation of Civil Code §2923.6 because Plaintiff admits he was previously evaluated and approved for a loan modification prior to January 1, 2013, This provision specifically exempts any violation of this statute for “borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013…”

The demurrer to the eighth cause of action for an accounting is overruled. Plaintiff alleges the amount due is disputed and the claim is properly pled. See ¶152.

The demurrer to the ninth cause of action for conspiracy is sustained with leave to amend. A claim for conspiracy, standing alone, is not a cognizable cause of action. Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 511. There must be a predicate tort. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541. Plaintiff must plead facts relating to the actual tort and the conspiracy therewith.

The demurrer to the tenth cause of action for violation of B&P §17200 is sustained with leave to amend. Plaintiff must allege with particularity how each defendant and what role each defendant played in violating the UCL’s unlawful prong or what practice is unfair. Additionally, to the extent Plaintiff alleges fraud, the cause of action fails because it is not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Also, claims against a corporation must include the names of the persons who made the misrepresentation, their authority, to whom they spoke, what they said, and when it was said. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must also allege injury in fact.

Any amended complaint shall be served and filed by March 24, 2014.

Plaintiff’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.