Case Number: EC061455    Hearing Date: August 08, 2014    Dept: NCE

Demurrer of Nuview Financial Services, Inc. and BSI Financial Services, Inc. to Second Amended Complaint is sustained.

The first cause of action for breach of oral contract is barred by the statute of frauds.

The second cause of action for breach of written contract fails to allege plaintiff’s performance or legal excuse for non-performance, instead alleging that plaintiff breached the contract by defaulting on his payments. To the extent plaintiff is alleging that these defendants breached the agreement by failing to give notice of the assignment, the court cannot find any term in the contract attached to the complaint requiring that such notice be given. The complaint also fails to allege what alleged irregularities were engaged in by these defendants and how the purported irregularities prejudiced plaintiff. See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 (“Even if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by MERS’s purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note….”)

The third cause of action for wrongful foreclosure is premised upon allegations that plaintiff was not notified of the assignment and that foreclosure processes were not followed. This cause of action fails for the same reasons identified in connection with the second cause of action identified above. In addition, there is no allegation of tender, which is required where a foreclosure has been conducted. Arnold Management Corp. v. Eishcen (1984) 158 Cal.App.3d 575, 579; Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1109.

The fourth cause of action to quiet title fails because the purported holder of equitable title cannot maintain a quiet title action against the holder of legal title. Lewis v. Superior Court(1994) 30 Cal.App.4th 1850, 1866.

The fifth cause of action for promissory estoppel alleges all affirmative conduct was performed by First American, not the moving defendants, and does not allege a clear and unambiguous promise or facts showing detrimental reliance.

The sixth and seventh causes of action for negligence and negligent misrepresentation fail to allege any recognized duty owed by the lender to the borrower. See Nymark v. Heart Federal Savings & Loan Association (1991) 231 Cal.App.3d 1089, 1096 (“As a general rule, a financial institution owes no legal duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as mere lender of money.”) The bare allegation that the defendants entered into a special relationship with plaintiff is not supported by the allegation of any fact that would give rise to the conclusion.

The eighth cause of action for fraud fails to specifically allege how, what, where, to whom and by what means a defendant made a misrepresentation. See Stansfield v. Starkey (1990) 220 CalApp.3d 59, 73. When it is alleged a corporation engaged in fraud, a plaintiff must also allege the names of the persons who made the misrepresentations and their authority to speak for the corporation. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

The ninth cause of action for violation of the Rosenthal Fair Debt Collection Practices Act fails for the reasons stated in the moving papers. Plaintiff has failed to file opposition to the demurrer to this cause of action and therefore, the demurrer is sustained without leave to amend as to this cause.

The twelfth cause of action for declaratory relief fails to seek prospective relief, seeking a declaration concerning past actions (i.e., whether the foreclosure sale which already has occurred was proper (paras. 130-131).) Declaratory relief is not appropriate “when there [is] no occasion to defined respective rights which would govern the future conduct of the parties.” Travers v. Louden (1967) 254 Cal.App.2d 926, 932.

Ten days leave to amend as to all causes of action except the ninth cause of action.