Case Name: David Merritt v. Specialized Loan Servicing, LLC et al.
Case No: 18CV336876

I. Background

David Merritt (“Plaintiff”) brings this action against Specialized Loan Servicing, LLC and U.S. Bank National Association as Trustee for the Certificate holders of Bear Stearns Arm Trust, Mortgage Pass Through Certificates, Series 2006-2, and Zieve, Brodnax & Steele, LLP (collectively, “Defendants”) for damages associated with foreclosure on a home and failure to consider his applications for loan modification.

According to the allegations of the first amended complaint (“FAC”), Plaintiff sought modification of a home loan that originated in 2006 with Countrywide Home Loans Inc. (“Countrywide”). (FAC, ¶ 21.) The modification was granted but Plaintiff canceled it because the terms were “falsely represented.” (FAC, ¶ 33.) He subsequently sought modifications from Countrywide’s successor, Bank of America and other financial institutions on several occasions from 2009 to 2014, however his applications were not considered. (FAC, ¶ ¶ 22-25.) In some instances, the applications were not processed, or they were ignored. (FAC, ¶ ¶ 24, 27.) Plaintiff alleges that this was part of a conspiracy whereby banking executives decided to deny, impede or reduce the number of modification applications granted, to increase the number of home foreclosures. (FAC, ¶ 28.)

In 2011, U.S. Bank acquired the mortgage on Plaintiff’s home as trustee for the Bear Stearns entity. (FAC, ¶ 143.) In 2017, Specialized Loan Servicing began sending Plaintiff notices that his mortgage was in default. (FAC, ¶¶ 223-236.) Zieve, Brodnax & Steele initiated foreclosure proceedings against Plaintiff’s home thereafter. (FAC, ¶ 246.) He attempted to apply for loan modifications during 2017 and 2018, but they were not processed. (FAC, ¶¶ 254, 358, 363.)

Plaintiff alleges twelve causes of action including: (1) conspiracy to commit fraud; (2) conspiracy to commit negligent misrepresentation; (3) negligence; (4) violation of the Federal Fair Debt Collection Practices Act; (5) violations of the Uniform Commercial Code; (6) violation of Civil Code section 2923.7; (7) violation of Civil Code section 2924.9; (8) violation of Civil Code section 2924.10; (9) violation of Civil Code section 2924.11; (10) violation of Civil Code section 2924.18; (11) unfair business practices; and (12) violation of Code of Civil Procedure section 726.

Before the Court is Defendants’ demurrer to all 12 causes of action accompanied by their request for judicial notice in support of the demurrer.

II. Request for Judicial Notice

Defendants seek judicial notice of several deeds and other documents recorded with the county recorder’s office. They also seek judicial notice of court dockets and records from various courts.

Judicial notice may be taken of any matter authorized or required by law. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, citing Evidence Code §§ 451 & 452.) A matter is subject to judicial notice only if it is reasonably beyond dispute. (Ibid.) Furthermore, any matter judicially noticed must be relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

The first set of records for which Defendants seek judicial notice include deeds of trust, assignments of a deed, a grant deed, a substitution of trustee, notice of default, and notice of trustee’s sale, all recorded in Santa Clara County. A court may take judicial notice of a recorded deed. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382.) Relevant to Defendants’ substantive arguments are the Deed of Trust dated March 27, 2006, the Substitution of Trustee dated December 27, 2016, the Notice of Default dated August 17, 2017, and the Notice of Trustee’s Sale dated May 16, 2018. Therefore, the Court takes judicial notice of these matters.

Defendants also seek judicial notice of twelve court records from three courts, including the Santa Clara County Superior Court, the U.S. District Court for the Northern District of California, and the United States Court of Appeals for the Ninth Circuit. These are referenced in the factual background of their memorandum, but are not the basis for any substantive arguments. Therefore, the Court will not take judicial notice of these matters as they lack relevance.

Consequently, Defendants’ request for judicial notice of the “Deed of Trust” dated March 27, 2006, the “Substitution of Trustee” dated December 27, 2016, the “Notice of Default” dated August 17, 2017, and the “Notice of Trustee’s Sale” dated May 16, 2018, recorded as official records of Santa Clara County is GRANTED.

Defendants’ other request for judicial notice is DENIED.

III. Demurrer

Defendants demur to all twelve causes of action on the ground of failure to state sufficient facts and the ground of misjoinder of parties.

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) The demurrer is treated as admitting all material facts, properly pleaded, but not contentions, deductions or conclusions of law. (Ibid.)

A. Failure to State Sufficient Facts

Defendants demur on the ground of failure to state sufficient facts, generally to all causes of action on the basis that Plaintiff lacks standing to pursue the causes of action, and then specifically as to each cause of action. (See Code Civ. Pro., § 430.10, subd. (e) .)

1. Standing

Defendants first argue that Plaintiff lacks standing. Standing to sue is the right to relief in court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) Lack of standing renders a cause of action subject to a general demurrer for failure to state sufficient facts. (Tarr v. Merco Constr. Engineers, Inc. (1978) 84 Cal.App.3d 707, 713.)

Defendants rely on Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, for the proposition that a borrower lacks standing to challenge the assignment of a loan in pre-foreclosure cases. As Plaintiff points out in opposition, the Jenkins holding was limited by the Supreme Court in Yvanova v. New Century Mortgage (2016) 62 Cal.4th 919. That court held that a borrower has standing to the extent necessary to challenge a foreclosing entity’s status as a mortgagee. (Id. at 935.) However, it did not set aside the holding in Jenkins that a borrower does not have standing to object to the assignment of a mortgage per se, or in the pre-foreclosure context. (Id. at 937.)

Therefore, based on the holding in Yvanova v. New Century Mortgage, supra, 62 Cal.4th 919, 937, Plaintiff has standing where he is challenging the ability of the successor assignee to foreclose. Furthermore, each cause of action includes allegations regarding the loan modification process, so they do not exclusively allege issues with assignment of the loan. Since a demurrer cannot lie to part of a cause of action, it cannot be sustained on this basis alone. (See Financial Corp. of America v. Wilburn, 189 Cal.App.3d 764, 778.)

Consequently, the demurrer to the causes of action for failure to state sufficient facts on the basis that Plaintiff lacks standing cannot be sustained.

2. First and Second Causes of Action

Defendants demur to the first and second causes of action on the basis that they are not sufficiently pleaded and that they are time-barred.

a. Sufficiency of Pleading

Defendants’ arguments in support of the demurrer address the first and second causes of action simultaneously. They treat the first cause of action as based on conspiracy and the second as based on an underlying tort of negligent misrepresentation as this is how Plaintiff has titled them. However, as the Court reads the allegations, Plaintiff is alleging intentional misrepresentation and civil conspiracy in the first cause of action, and negligent misrepresentation in the second cause of action.

Specifically, Defendants take issue with the pleading of the elements of misrepresentation and reliance. Each is a necessary element which must be pleaded with particularity in a cause of action for either intentional or negligent misrepresentation. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173; see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To allege a misrepresentation, the facts must show “how, when, where, to whom and by what means the representations were made.” (Id. at 645.) Therefore, despite Defendants’ characterization of the causes of action, the analysis is the same.
As to the pleading of misrepresentation, Defendants are correct. Plaintiff seems to be relying on allegations of a scheme to lure consumers into applying for loan modifications and then denying them in order to collect fees and foreclose on properties. However, beyond naming top executives who allegedly directed the scheme, or referring to phone calls he made inquiring about his applications, he fails to name how, when, where and by what means such representations about this scheme were made to him. Instead, he alleges that he made several attempts to modify the loan, and that the first time he was granted a loan modification he rescinded it on a belief it “falsely represented to him as achieving such.” (FAC, ¶ 21.) Thereafter, he alleges his applications were ignored and not processed as part of the scheme to defraud, but no specific misrepresentation is pleaded sufficiently to overcome the demurrer.
As to reliance, Plaintiff does plead that he relied on his ability to get a loan modification in that he believed that his loan modification would be honestly processed and considered. (FAC, ¶ 291.) He also alleges that over a period of five years he continued to apply for loan modifications on several different occasions, and even sent one to counsel for one of the banks, because he continued to rely on his belief that they would be considered. (FAC, ¶¶ 22-27.) Therefore, the element of reliance has been sufficiently pleaded. Nonetheless, given that misrepresentation is not adequately pleaded, the demurrer will be sustained for failure to plead both the intentional and negligent misrepresentation causes of action sufficiently.
Defendants also take issue with the pleading sufficiency of conspiracy. As they argue, conspiracy is not an independent cause of action, but a legal doctrine that imposes liability on one who, although not committing the tort themselves, share a common plan or design in it perpetration. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Standing alone, conspiracy engenders no tort liability and must be activated by an underlying tort. (Id. at 511.) Since there is no adequately pleaded underlying tort, the cause of action for conspiracy cannot stand on its own and demurrer to the first cause of action will be sustained because the underlying tort is not sufficiently pleaded.

b. Statute of Limitations

Defendants also argue that these causes of action are time-barred. To sustain a demurrer on the basis of the statute of limitations, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred. (E-Fab., Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1317.) “In assessing whether claims are time-barred, two basic questions drive [the] analysis: (a) [w]hat statutes of limitations govern the plaintiff’s claims? (b) [w]hen did the plaintiff’s causes of action accrue?” (Id. at 1316.) Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements. (Id. at 1317.)

For the tort of fraudulent misrepresentation, the statute of limitations is three years. (§ 338, subd. (d).) Likewise, as a species of fraud, negligent misrepresentation has a three year limit. (Thompson v. Canyon (2011) 198 Cal.App.4th 594, 607.)

By its nature, fraud may not be immediately apparent to a plaintiff, however facts must be alleged to support delayed discovery. (E-Fab., Inc. v. Accountants, Inc. Services, supra, 153 Cal.App.4th 1308, 1318; § 338, subd. (d).) The discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action (Ibid.) A plaintiff must plead facts to show both the time and manner of discovery and the inability to have made earlier discovery despite reasonable diligence, and conclusory allegations will not withstand the demurrer. (Id. at 1320.)

The allegations start with dates as early as 2006, and Plaintiff alleges he sought loan modification from 2009 up until 2012, which is the time frame in which he places the allegations of conspiracy. (FAC, ¶¶ 22-27.) He then alleges that “the causes of action herein arose on or about August 2017” and goes on to allege in a conclusory way misrepresentations, and other wrongful activity. (FAC, ¶ 29.) However, he does not explain how or by what manner he discovered the fraud in 2017, nor does he specify why he did not discover it earlier. Instead, he offers an unsupported conclusion that the claim accrued in 2017, despite the fact that his last attempt at a loan modification was alleged to be in 2012 until the foreclosure notice was issued in 2018, when he alleges he submitted another application. Therefore, as pleaded the fraud claim is time-barred because the facts pleaded do not support delayed discovery to bring the cause of action within the three year statute of limitations.

Given the identical fact pleading, the conspiracy cause of action is also time-barred. The applicable statute of limitations is determined by the nature of the action in which conspiracy is alleged. (Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 673.) Since the underlying tort is fraud, the statute of limitations is three years. (§ 338, subd. (d).) A cause of action based on conspiracy “accrues on the date of the commission of the last overt act in pursuance of the conspiracy, a date which must be alleged.” (Maheu v. CBS, Inc., supra, 201 Cal.App.3d 662, 673-674; emphasis added.)

Plaintiff fails to allege any specific date by which the last overt act in pursuance of the conspiracy occurred, only that the “cause of action arose on or about August, 2017.” (FAC, ¶ 29.) This does not sufficiently describe the last of the overt acts to support a conspiracy cause of action.

Therefore, the demurrer to the first and second causes of action will be sustained.

3. Third Cause of Action: Negligence

Defendants next take issue with allegations they were negligent in processing Plaintiff’s loan modification application.

Defendants argue that Plaintiff has failed to sufficiently plead duty. To state a cause of action for negligence, a plaintiff must allege the defendant owed the plaintiff a duty of care. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) In the loan modification context, there is no common law duty to consider, or approve the modification or to explore foreclosure alternatives as it is considered a renegotiation of loan terms. (Id. at 67.) However, once a lender undertakes to modify a loan, a duty does attach to handle the application with due care. (Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 949.)

The facts do not allege that any of the Defendants owed a duty to Plaintiff. Plaintiff alleges that he received a loan modification in 2009, but he canceled it believing the terms to be false. (FAC, ¶ 22.) He subsequently submitted and pursued other modifications but no facts allege that Defendants considered the applications or undertook to process them as they were either ignored, thrown away or lost. (FAC, ¶¶ 22-27, 255.) Therefore, Plaintiff repeatedly alleges that the banks ignored his requests for loan modification, so the allegations are devoid of facts to support that anyone undertook a modification on his behalf.

Therefore, as Defendants state, duty has not been sufficiently pleaded, so the demurrer as to the negligence cause of action will be sustained.

4. Fourth Cause of Action: Fair Debt Collection Practices Act

Defendants demur to the fourth cause of action for violations of the Fair Debt Collection Practices Act (15 U.S.C., § 1692.) on the basis that they are not “debt collectors” as defined by the Act, and that damages are not alleged.

To state a claim for violation of the Act, a plaintiff must allege that the defendant is a “debt collector” collecting a “debt.” (Randall v. Ditech (2018) 23 Cal.App.5th 804, 809.) A debt collector includes a person or entity (1) engaged in “any business the principal purpose of which is the collection of any debts,” or (2) “who regularly collects or attempts to collect … debts owed or due … another.” (Ibid, citing 15 U.S.C, § 1692 subd. (a) (6).) The term applies to a mortgage loan servicer if the servicer began servicing the mortgage loan after the loan was in default. (Id. at 809-810.)

Here, the face of the complaint shows that all Defendants became involved in the mortgage at issue here after the loan was in default, though not necessarily as “debt collectors.” (FAC, ¶ ¶ 248, 262, 265.) In particular, U.S. Bank was an assignee of Bank of America’s interest in the loan, but was not alleged to be a loan servicer whose principle interest was in collecting on the debt. Therefore, the demurrer will be sustained as to U.S. Bank in its role as trustee for the Bear Stearns Certificates.

By contrast, defendants Specialized Loan Servicing and Zieve, Brodnax and Steele are alleged to have begun foreclosure in 2017 at the behest of U.S. Bank, both as debt collectors, and as a mortgage loan servicer. (FAC, ¶ ¶ 49, 241-246, 248.) Therefore, the demurrer cannot be sustained as to these defendants on the basis that they are not debt collectors as defined.

As to Defendants’ argument that damages have not been alleged, the demurrer will not be sustained on this basis. Plaintiff alleges that as a result of violations of the Act, he has suffered damages. (FAC, ¶ 332.)

5. Fifth Cause of Action: Violations of the U.C.C.

Defendants take issue with the alleged violation of sections of the Uniform Commercial Code sections 9-613, 9-614, 9-616, and 9-623, on the basis that the statutes cited do not apply to interests in real property.

As Defendants argue, the scope of U.C.C. Article 9 only applies to consensual security interests in personal property and excludes interests in or liens on real property. (See com. 10 to U. Com. Code, § 9-109.)

Therefore, the demurrer to the fifth cause of action will be sustained.

6. Sixth Cause of Action: Failure to Assign a Single Point of Contact

The sixth cause of action alleges a violation of the California Homeowner Bill of Rights (“HBOR”). Among other things, HBOR requires lenders to deal reasonably with borrowers in default to try to effectuate a workable loan modification. (Alvarez v. BAC Home Loans Servicing, L.P., supra, 228 Cal.App.4th 941, 950.)

Defendants argue that the facts are insufficient to show that Plaintiff sought a “single point of contact” in the modification process as required by Civil Code section 2923.7, subdivision (a).

However, Plaintiff alleges specifically that a “single point of contact” was requested. (FAC, ¶ 340.) He also states that his three applications for modification did not lead to assignment of a single point of contact. (FAC, ¶ 24.) Furthermore, the assignment of a single point of contact when a borrower is seeking loan modification falls more squarely as a requirement of the lender, and nothing suggests that it must be specifically requested. (See Alvarez v. BAC Home Loans Servicing, L.P., supra, 228 Cal.App.4th 941, 950.) Therefore, the demurrer cannot be sustained for failure to plead sufficient facts to show a single point of contact was requested, as this does not appear to be a requirement of the borrower, but an obligation of the creditor.

Defendants also demur to the sixth cause of action on the basis that Plaintiff does not allege that failure to assign a single point of contact was material. They cite a federal district court case for the proposition that “a material violation is one where ‘the alleged violation affected a plaintiff’s loan obligations or the modification process.’” (Corjenjo v. Ocwen Loan Servicing, LLC (E.D. Cal. 2015) 151 F.Supp.3d 1102, 1113.) The Court agrees with Defendants’ argument that materiality is not sufficiently pleaded. The problem for Plaintiff is that he concedes in his facts that he received a loan modification in 2009, but he rejected it believing it to be false in its terms and the requested interest payments to be fraudulent. Also, Plaintiff alleges that in seeking subsequent modifications, the terms he sought were to “pay only the principle back or at minimum, charge only the 3% promised from 2006.” (FAC, ¶ 254.) As pleaded, then, the subsequent failure to get another modification was material, but the facts suggest only because Plaintiff made it so by rejecting the offer he did receive and then subsequently attempting to set his own terms for the modification. Therefore, materiality is not sufficiently pleaded, and the demurrer will be sustained on this basis.

Finally, U.S. Bank demurs on its own to the sixth cause of action since a claim under this section may only be brought against a “mortgage servicer” citing Civil Code section 2923.7, subdivision (a).) However, it offers no case law for the proposition that as an assignee of a loan, a bank is not a “mortgage servicer” and the plain language of the statute alone does not support this argument. Therefore, the Court will not sustain U.S. Bank’s demurrer to the sixth cause of action on this basis.

7. Seventh Cause of Action: Failure to Provide Foreclosure Alternatives

Defendants take issue with allegations that they failed to notify Plaintiff of foreclosure prevention alternatives as required by Civil Code section 2924.9, another statute of HBOR. Under the statute, upon recording a notice of default, a mortgage servicer that offers one or more foreclosure prevention alternatives must send a written communication to the borrower about his or her ability to seek foreclosure alternatives. (Civ. Code, § 2924.9.)

Defendants first argue that the statute has been repealed in January 2018 by its own terms. However, the statute was renewed in 2018 by S.B. 818, and became effective January 1, 2019. (Stats. 2018, ch.404, § 12.) Therefore, the demurrer will not be sustained on this basis.

Alternatively, Defendants argue that Plaintiff would not be eligible for the protections of the statute because he has previously exhausted the first lien modification process offered by his mortgage servicer, citing the plain language of the statue. (Civ. Code, § 2924.9, subd. (a) [“unless a borrower has previously exhausted the first lien loan modification process…”].) Defendants base this on Plaintiff’s allegations that he was granted a modification of his loan in 2009, but he rejected it. But Defendants offer no substantive arguments in support of their theory that the loan modification from 2009 represents an exhaustion of the first lien modification process,” particularly when the foreclosure happened in 2018, and the Court is not persuaded that the plain language of the statute alone leads to this conclusion.

Therefore, demurrer to the seventh cause of action cannot be sustained.

8. Eighth Cause of Action: Failure to Provide Written Notice of Loan Modification Application

Defendants demur to the eighth cause of action on the basis that the statute on which it is based was repealed. However, while the original statute had a sunset provision of January 1, 2018, the law was renewed and continues to impose duties and obligations on lenders to acknowledge receipt of loan modification applications as of January 1, 2019. (Civ. Code § 2924.10, subd. (a); see Stats. 2018, ch. 404, § 13.) Defendants offer no alternative arguments, so the demurrer cannot be sustained.

9. Ninth Cause of Action: Prohibition on Dual Tracking

Defendants demur to the ninth cause of action on the basis that Plaintiff does not allege facts to show that they began foreclosure proceedings while he was in compliance with a loan modification agreement. HBOR prevents a lender from simultaneously approving an alternative to foreclosure and recording a notice of default on the property, or alternatively recording default when the borrower is in compliance with a loan modification, a practice known as “dual tracking.” (Civ. Code, § 2924.11, subd. (a) (1).)

As Defendants note, and as judicially noticed, the trustees’ sale was recorded in May 2018. Plaintiff alleges that in October, November and December 2018, and during dates thereafter, his loan modification was in “active review.” (FAC, ¶ 358.) However, there are no allegations that show that a loan modification was approved in writing prior to the recordation of the notice of default. Furthermore, to the extent that there was a loan modification approved in 2009, Plaintiff alleges that he rejected it, and was not in compliance with its terms. Therefore, there was not an actionable loan modification that precluded recording of the trustees’ sale.

Therefore, the demurrer will be sustained, and Plaintiff has not alleged that he was “dual tracked” in violation of the HBOR.

10. Tenth Cause of Action: Prohibition on Foreclosure

Defendants demur to the tenth cause of action on the basis that the statute on which it is based was repealed. The statute at issue is another provision of the HBOR, which states that a lender must forgo a notice of sale or trustee’s sale if the borrower can allege he or she has submitted a complete application for loan modification or he or she is in compliance with the terms of an already approved foreclosure alternative. (Civ. Code, § 2924.18, subd. (3) (a).)

While the statute originally had a sunset provision of January 1, 2018, the law was renewed and continues to prohibit lenders from recording notice of default if an application for loan modification was submitted five days before a scheduled foreclosure sale. (Civ. Code § 2924.10, subd. (a); see Stats. 2018, ch. 404, § 23.) Therefore, the demurrer cannot be sustained on this basis.

Alternatively, Defendants argue that the law did not impose upon them a duty to rescind the notice of foreclosure, as alleged by Plaintiff. Indeed, the statute only proscribes foreclosure under certain circumstances, none of which is relevant here. The facts as pleaded do not show that there was any loan modification or other foreclosure alternative approved in writing or otherwise to which Plaintiff was in compliance. Furthermore, as judicially noticed, the notice of default was entered on August 17, 2017, and the notice of trustee’s sale was recorded on May 16, 2018. During this period, Plaintiff alleges that he submitted several applications for modification, but none were processed or approved. Therefore the facts show that he had time to seek modification, and he attempted to do so, but non e was actually in process or granted, to trigger the obligations of the statute. Therefore, the demurrer to this cause of action will be sustained.

11. Eleventh Cause of Action: Violations of Unfair Competition Law

Defendants argue that the complaint fails to allege violations of Business and Professions Code section 17200 also known as the Unfair Competition Law (“UCL”). As they state, a UCL violation must be premised on underlying causes of action, and therefore where the demurrer is sustained, a UCL claim is not sufficiently pleaded.

However, the demurrer has not successfully challenged all the causes of action, as the seventh and eighth causes survive the demurrer. Therefore, there are causes of action remaining that can support the violation of the UCL, and therefore the demurrer cannot be sustained.

12. Twelfth Cause of Action: One Action Rule

Defendants demur to the twelfth cause of action for violation of the “one action rule.” Code of Civil Procedure section 726 provides that there “can be but one form of action for the… enforcement of any right secured by mortgage upon real property…” Plaintiff alleges that because of his many attempts to litigate the underlying facts of the present causes of action, Defendants are precluded from any further lawsuits, as they have already had their “one bite of the proverbial Apple.” (FAC, ¶ 380.)

Preliminarily, the Court notes that the cited code section does not create a cause of action, but is a rule of civil procedure. Furthermore as Defendants argue, they are defending themselves in the present causes of action, not pursuing an additional action on the mortgage. As pleaded, Plaintiff concedes his many attempts in this Court and in federal court to pursue his claims. However, nowhere does he allege that Defendants have pursued multiple suits against him, for enforcement of rights secured by the mortgage.

Consequently, the demurrer to this cause of action will be sustained.

B. Misjoinder of Parties

Defendants demur to all causes of action on the ground of misjoinder of parties. (See § 430.10, subd. (d).)

Defendants argue that Plaintiff has failed to name his wife as a party to this action though she is named on the original Deed of Trust from 2006 of which the Court takes judicial notice. A plaintiff must join as a party to the action all persons whose interests are so directly involved that the court cannot render a fair adjudication in their absence. (§ 389 et seq.) Where a party is necessary to a cause of action, the demurrer will lie to a cause of action for failure to join the party. (§ 430.10, subd. (d); Vanasek v. Pokorny (1925) 73 Cal.App. 312, 319.) Where the interests of one spouse in community property are so connected with the other spouse, as in cases involving title of real property, each is a necessary party to the action, and the demurrer will be sustained if one is not joined. (Vanasek v. Pokorny, supra, 73 Cal.App. 312, 319.) This is true because a judgment rendered in her absence may be prejudicial to her interests. (See Morrical v. Rogers (2013) 220 Cal.App.4th 438, 463.)

While the claims here are various and numerous, the gravamen of the causes of action pertains to a mortgage held by both Plaintiff and his wife, their failure to pay on it, their requests for loan modification, and the subsequent foreclosure of a property to which they both had an interest. Plaintiff brings the suit in his name only, but his wife is not included. Therefore, the demurrer on the ground of misjoinder of parties will be sustained as to first, second, third, fourth, sixth, seventh, eighth, ninth, tenth and eleventh causes of action.

IV. Conclusion

The Defendants’ demurrer to the first cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that misrepresentation and conspiracy are not sufficiently pleaded and the claim is time-barred.

The Defendants’ demurrer to the second cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that misrepresentation is not sufficiently pleaded and the claim is time-barred.

The Defendants’ demurrer to the third cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that the facts do not show any duty owed to Plaintiff.

U.S. Bank’s demurrer to the fourth cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that U.S. Bank is not a debt collector under the Fair Debt Collection Practices Act. Specialized Loan Servicing and Zieve, Brodnax and Steele’s demurrer to the fourth cause of action on the ground of failure to state sufficient facts is OVERRULED.

The Defendants’ demurrer to the fifth cause of action on the ground of failure to state sufficient facts is SUSTAINED, WITHOUT LEAVE TO AMEND, as a cause of action under U.C.C., Article 9 does not apply to interests in real property.

The Defendants’ demurrer to the sixth cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, as it does not allege facts to show a material violation of Civil Code section 2923.7.

The Defendants’ demurrer to the seventh cause of action on the ground of failure to state sufficient facts is OVERRULED.

The Defendants’ demurrer to the eighth cause of action on the ground of failure to state sufficient facts is OVERRULED.

The Defendants’ demurrer to the ninth cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that it does not sufficiently allege “dual tracking” in violation of Civil Code section 2924.11.

The Defendants’ demurrer to the tenth cause of action on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that Plaintiff has not pleaded facts sufficient to allege that Defendant was precluded from seeking foreclosure under Civil Code section 2924.18.

The Defendants’ demurrer to the eleventh cause of action is OVERRULED.

The Defendants’ demurrer to the twelfth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND, on the basis that Defendants are not barred by “one cause of action” from defending themselves in multiple suits and no viable cause of action is alleged.

The Defendants’ demurrer to the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth and eleventh causes of action on the ground of misjoinder of parties is SUSTAINED, with 10 days leave to amend after service of this signed order, on the basis that Plaintiff has failed to join his wife as a necessary party.

However, this order allows amendment only as to existing causes of action where the Court has granted leave to amend, and does not permit adding any new causes of action. If Plaintiff attempts to add any additional causes of action, those causes of action are subject to being stricken.

The Court will prepare the order.