Case Number: BC539895    Hearing Date: August 12, 2014    Dept: 40

ALISON BESSER v. JP MORGAN CHASE BANK, et.al.
DEMURRER TO THE COMPLAINT

Case No: BC539895
Date: August 12, 2014
Tentative Ruling: The demurrer is SUSTAINED without leave to amend.

On April 28, 2014, JP Morgan Chase Bank, NA filed a demurrer to the complaint. A timely opposition was due by July 30, 2014. No opposition has been filed.

With the demurrer, Defendant JP Morgan Chase Bank filed and served a request for judicial notice. The Court grants the request for judicial notice. The request for judicial notice includes six recorded documents pertinent to this claim. The recorded documents show that Alison Besser has not been on title during the period in question.

The demurrer challenges all three causes of action on grounds Plaintiff has failed to state facts sufficient to constitute a cause of action.

Standing
Defendant argues Plaintiff’s complaint fails because the judicially noticeable documents indicate Plaintiff has no interest in the subject property or the loan at issue. “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (CCP §367.) “Where the complaint shows the plaintiff does not possess the substantive right or standing to prosecute the action, ‘it is vulnerable to a general demurrer on the ground that it fails to state a cause of action.’” (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 955.)

RJN Exh. 1 indicates that on April 20, 2009, Jacqueline Besser and Stephen Besser, a married couple, obtained title the property at issue. They then obtained a loan in the amount $240,562 secured by a deed of trust in the property. (RJN Exh. 2.) This contradicts the verified complaint, which states that Alison Besser was the borrower (paragraph 3) and Alison Besser executed the trust deed (paragraph6.) There is no explanation of the discrepancy by Plaintiff, who has not filed an opposition.

On this basis, the Court sustains the demurrer.

First Cause of Action – Violation of Civil Code §2923.5
Plaintiff alleges Section 2923.5 was violated because Defendants attempted to proceed with a non-judicial foreclosure sale without satisfying the diligence requirement of adequately notifying Plaintiff of their intent to foreclosure. However, Section 2923.55 went into effect on January 1, 2013, and 2923.5 is therefore not applicable. The Notice of Default was filed on April 9, 2013. Further, the Legislature did not intend to saddle lenders with having to custom draft the statement. (Mabry v. Sup.Ct. (2010) 185 Cal.App.4th 208, 214.) Thus, RJN Exh. 5 is sufficient to negate Plaintiff’s allegations regardless of which section she has sued under. The declaration of diligence states the beneficiary was not required to comply with the notice requirements because the borrower had surrendered the property. The declaration tracks the language of Section 2920.5(c)(2)(A).
On this basis, the demurrer is sustained.

Second Cause of Action – Declaratory Relief
Plaintiff alleges there is an actual controversy concerning the parties respective rights and duties pertaining to the Subject Property, as the Notice of Default does not state whether the agent has personal knowledge of the facts asserted. (¶¶16-17.)

There is no authority providing for a homeowner’s court action seeking a presale determination as to whether the party initiating foreclosure was authorized to do so. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154.) Thus, even assuming Plaintiff had standing to challenge the non-judicial foreclosure, Plaintiff may not seek a presale determination of the authority to foreclose.

On this basis, the demurrer is sustained.

Third Cause of Action – Quiet Title
Plaintiff seeks to quiet title to the subject property, alleging Plaintiff is ready, willing, and able to make tender and resume making monthly payments, if given appropriate financing or other such alternative. (¶¶20, 25.) However, no tender has been made.

To plead a cause of action for quiet title, one must allege (1) a description of the property; (2) plaintiff’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (CCP §761.020; Chao Fu, Inc. v. Wen Ching Chen (2012) 206 Cal.App.4th 48, 59 Plaintiff has failed to make a viable allegation of tender, conditioning tender on receiving financing or some loan modification; Plaintiff has not alleged what Defendant’s adverse interest in the property is; and the RJN indicates Plaintiff has no interest in the property. Lastly, the basis for her claim, a violation of Section 2923.5, likewise fails, providing no predicate for this cause of action.

Plaintiff has not alleged a basis on which to amend the complaint. On the basis of the judicially noticed documents, it does not appear that Plaintiff could amend to allege a viable cause of action. Therefore, the demurrer is sustained without leave to amend.