17-CIV-03642 JOSE AGUILAR, ET AL. VS. BAYVIEW LOAN SERVICING, LLC, ET AL.

JOSE AGUILAR BAYVIEW LOAN SERVICING, LLC
MATTHEW MELLEN JOHN C. STEELE

DEFENDANTS BAYVIEW LOAN SERVICING, LLC AND THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC, ALTERNATIVE LOAN TRUST 2006- 31CB, MORTGAGE PASS—TI—IROUGH CERTIFICATES, SERIES 2006-31CB DEMUR TO THE FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendants’ demurrer to the second, third, fourth, fifth, and sixth causes of action on the ground that the Court previously issued a tentative ruling in a different action is overruled. A tentative ruling is not a ruling. Plaintiffs dismissed the prior action before the Court ruled on the demurrer.

Demurrer to the first cause of action (breach of contract) is sustained with leave to amend. The claim alleges that “Defendants failed to perform its duties” and “cancelled Plaintiff’s loan modification.” (FAC para. 36.) Because the Complaint does not set forth the terms of the loan modification, it is impossible to determine what breach is described by the allegation that Defendant “failed to perform its duties.” The demurrer’s alternative argument that Plaintiffs cannot enforce the agreement because they are in default has no merit. Plaintiffs are not seeking to enforce the original loan on which they defaulted.

Demurrer to the second cause of action (Civ. Code section 2923.6) is overruled. The complaint alleges that the application was “complete.” (FAC paras. 45 & 47.) Neither paragraph 28 nor paragraph 57, cited by Defendants, contradicts those allegations.

Demurrer to the third cause of action (Civ. Code section 2923.7) is overruled. There is no requirement that a borrower request a single point of contact (“SPOC”). (See Civ. Code sect. 2923.7, subd. (a).

Demurrer to the fourth cause of action (negligence) is sustained without leave to amend. The Complaint does not allege that Defendants engaged in any conduct beyond “the scope of its conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) Therefore, the Complaint fails to allege that Defendants owed any common law duty of care to Plaintiffs. Plaintiff’s argument that the duty is set forth in the HBOR is unpersuasive, because those claims are statutory and are already pleaded in the second and third causes of action. Demurrer to the fifth cause of action (wrongful foreclosure) is overruled. Tender is not required when the claim is based on allegations that the Defendant foreclosed during the time that the plaintiff was seeking a loan modification. (Majd v. Bank of Am., N.A. (2015) 243 Cal. App. 4th 1293, 1305–06.) Plaintiffs have pleaded prejudice in the form of lost property.

Demurrer to the sixth cause of action (UCL) is overruled. The complaint sufficiently alleges loss of property. (Bus. & Prof. sect. 17204.) The complaint sufficiently alleges a violation of statute (HBOR) and unfair acts

Demurrer to the seventh cause of action (quiet title) is sustained with leave to amend. Plaintiffs fail to allege that they hold any current interest in the property. Therefore, there are no competing claims to title.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.