Case Name:   Nevarez v. Bank of America, N.A., et al.

Case No.:       1-14-CV-263573

On April 10, 2014, plaintiff Rodolfo Nevarez (“Plaintiff”) filed a complaint asserting causes of action for unfair business practices, fraud, negligent misrepresentation and contractual breach of good faith and fair dealing.  Defendant Bank of America, N.A. (“BofA”) demurred to the complaint.  On June 23, 2014, the Court posted its tentative ruling sustaining BofA’s demurrer to the complaint with 10 days leave to amend.  Rather than contest the tentative by 4:00 p.m., Plaintiff opted to file a request for dismissal as to BofA at 4:04 p.m. without notifying the Court.  On August 15, 2014, Plaintiff filed his first amended complaint (“FAC”) asserting four entirely different causes of action:  wrongful foreclosure in violation of Civil Code section 2924, subdivision (a)(6); violation of Civil Code section 2924.17, subdivision (a); quiet title; violation of Civil Code section 2924.17, subdivision (b); and, violation of Civil Code section 2923.55.  Defendant Pennymac Loan Services, LLC (“Pennymac”) demurs to each cause of action of the FAC.  The FAC attaches the notice of default and election to sell under deed of trust (“NOD”), the notice of trustee’s sale (“NOTS”), the corporation assignment of deed of trust (“assignment”), the fixed rate interest only note, and the deed of trust (“DOT”).

Pennymac’s request for judicial notice of the complaint and the assignment of the subject deed of trust is GRANTED.  (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4^th 1356, 1382, quoting Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4^th 1106, 1117; see also Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4^th 540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4^th 256, 264-265 (stating that “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… [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document”); see also Stormedia Inc. v. Super. Ct. (Werczberger) (1999) 20 Cal.4^th 449, 457, fn.9; see also Evid. Code § 452, subds. (c), (d), (h).)

The first, second and fourth causes of action are premised on the allegation that Citibank does not hold a beneficiary interest based on certain violations of a Pooling and Servicing Agreement (“PSA”) and a failure to deliver the DOT trust.  It is difficult to follow Plaintiff’s arguments in his opposition; however, he first argues that Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4^th 1149, Kan v. Guild Mortgage Co. (Sept. 25, 2014) 2014 Cal. App. LEXIS 925 *1, Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4^th 433, Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4^th 1481, Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4^th 256, Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4^th 497, Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4^th 1495, Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4^th 49, and Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4^th 75 do not apply to notices recorded after January 1, 2013.  However, numerous courts have echoed Gomes’ rationale, even with notices recorded after January 1, 2013.  (See Maomanivong v. Nat’l City Mortg. Co. (N.D.Cal. Sept. 15, 2014) 2014 U.S. Dist. LEXIS 130513 *1, *13-*14 (NOTS recorded October 1, 2013, quoting Gomes, stating that there is no claim that “provide[s] for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized”); see also St. Clair v. JP Morgan Chase Bank, N.A. (E.D. Cal. Sept. 18, 2014) 2014 U.S. Dist. LEXIS 132054 *1, *11-*16 (NOTS recorded on June 20, 2013, stating that “a plaintiff lacks standing to challenge the process in which his mortgage was securitized because he is not a party to the relevant agreements”); see also Tavares v. Nationstar Mortg. LLC (S.D. Cal. July 14, 2014) 2014 U.S. Dist. LEXIS 95537 (NOTS recorded on November 15, 2013, stating that “California’s nonjudicial foreclosure scheme does not ‘provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized’”, quoting Gomes); see also Morales v. Bank of N.Y. Mellon (N.D. Cal. July 30, 2014) 2014 U.S. Dist. LEXIS 105367 *1, *10-*11 (NOTS received on January 16, 2013, stating that “courts in this district follow the majority approach set forth in Jenkins v. JP Morgan Chase Bank, N.A., which held that ‘as an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, a plaintiff lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions).)

Plaintiff does not present any case authority to support his position that the listed cases are inapplicable to notices recorded after January 1, 2013, and the weight of authority holds otherwise.  Further, as Pennymac argues, Plaintiff does not allege facts showing how Plaintiff suffered any actual prejudice as a result of the alleged wrongs from the securitization process.

Moreover, Plaintiff’s argument appears to be based on a consent judgment of which Plaintiff does not request judicial notice.  (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (stating that on demurrer, the court admits all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law and also considers matters which may be judicially noticed).)  Even if Plaintiff were to request judicial notice of the document that he merely attaches, it is not a proper subject of judicial notice.  Plaintiff’s argument based on a purported consent judgment is unsupported.

Plaintiff also does not show how he might possibly amend his complaint.  (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).)  The demurrer to the first, second and fourth causes of action is SUSTAINED without leave to amend.

Plaintiff apparently concedes as to the demurrer to the third cause of action for quiet title as it is not addressed in opposition.  The demurrer to the third cause of action is SUSTAINED without leave to amend.  (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).)

The demurrer to the fifth cause of action for violation of Civil Code section 2923.55 is OVERRULED.

The Court will prepare the Order.