Case Number: VC063796    Hearing Date: August 05, 2014    Dept: SEC

DYE v. SETERUS, INC.
CASE NO.: VC063796
HEARING: 08/05/14

#4
TENTATIVE ORDER

Defendant BANK OF AMERICA, N.A.’s demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. C.C.P. § 430.10(e), (f).

Defendant’s Request for Judicial Notice is GRANTED. Evid. Code §§ 452, 453.

On April 29, 2014, this Court sustained with leave to amend defendants’ demurrers to the original complaint. Plaintiff PENNY DYE, acting in pro per, filed a First Amended Complaint asserting several causes of action arising out of the alleged wrongful foreclosure of her home. On July 8, 2014, the Court sustained without leave to amend the demurrer brought by co-defendants, which was not opposed by plaintiff.

Plaintiff alleges that she and her husband obtained a loan from defendant Bank of America in April 2006. She claims they did not receive “loan disclosures” and that they were not informed of the written terms. FAC, ¶9. After plaintiff defaulted, defendants recorded a Notice of Trustee Sale on June 25, 2013. ¶14. The sale was postponed several times. Plaintiff alleges that the various recordations were done in violation of the automatic stay in place by virtue of her filing a Chapter 7 bankruptcy action. Id. The foreclosure sale took place on May 6, 2014.

Plaintiff’s claim based on violation of the stay is flawed. The foreclosure proceedings were initiated in 2013, prior to plaintiff’s January 6, 2014 filing of the bankruptcy petition. The bankruptcy was discharged on April 28, 2014. RJN, Exh. N. The foreclosure sale took place after that date. Moreover, the Bankruptcy Court is the proper venue in which to adjudicate claims premised on violation of a bankruptcy stay. Idell v. Goodman (1990) 224 Cal.App.3d 262.

Plaintiff did not list her claims as assets of her bankruptcy estate, and thus she lacks standing to assert the subject causes of action. RJN, L. As the Court noted in its previous order, any claim plaintiff may have against the defendants became the property of the estate once she filed bankruptcy. See Runaj v. Wells Fargo Bank (S.D. Cal. 2009) 667 F. Supp.2d 1199. Plaintiff failed to cure that defect in her amended pleading. There is no indication that plaintiff has sought to substitute in the bankruptcy trustee.

The FAC is also defective insofar as plaintiff’s claims are not supported by sufficient facts. Although she alleges the loan was unconscionable, she does not explain why. See FAC, ¶23. She also failed to allege the circumstances surrounding her alleged “inducement” into signing the contract. The allegations consist of conclusions, rather than facts. The alleged statutory claims regarding defendant’s failure to identify the beneficiary, failing to engage in loan modification discussions, etc. are also pled without any factual support. FAC, ¶15. Plaintiff’s claims that the lender and its agents lacked authority to foreclose
are not actionable. See Gomez v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.

Without a good faith allegation of the ability to tender, plaintiff cannot maintain causes of action to set aside the foreclosure sale or to quiet title. See e.g. Nguyen v. Calhoun (2003) 105 Cal.App.4th 428.

For the reasons set forth above, the demurrer is sustained in its entirety. Plaintiff did not file opposition to the demurrer, so has not met her burden of establishing either an ability or a desire to amend the pleading. Accordingly, the demurrer is sustained without leave to amend.