On December 28, 2012, plaintiff Melita M. Allen (“Plaintiff”) filed her initial complaint against defendants CWALT, Inc. and Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc. Alternative Loan Trust 2005-27, Mortgage Pass-Through Certificates Series 2005-27 (“BoNY”). The Court [Hon. Pierce] sustained Defendant’s demurrer to the unopposed demurrer. On July 12, 2013, Plaintiff filed her first amended complaint (“FAC”), adding Evergreen Mortgage Servicing, LP, Bank of America, N.A. (“BofA”), ReconTrust Company, N.A. (“ReconTrust”), and Mutual of Omaha Bank as defendants. Plaintiff also filed dismissals as to CWALT, Inc. and Mutual of Omaha Bank. BoNY demurred to the FAC, and the Court [Hon. Pierce] sustained the demurrer to each cause of action without leave of amend; judgment was entered in favor of BoNY on October 28, 2013.

In sustaining the demurrer, the Court stated:

Defendant Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc. Alternative Loan Trust 2005-27, Mortgage Pass-Through Certificates Series 2005-27 (“Defendant”) request for judicial notice of the substitution of trustee, notice of trustee’s sale and trustee deed upon sale—documents that are also attached to the first amended complaint—is GRANTED. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382, quoting Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117; see also Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 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 Evid. Code § 452, subds. (c), (h).)

The first amended complaint (“FAC”) “alleges that First National Bank of Arizona never funded subject loan for the Subject Property such that the alleged note and accompanying deed of trust do not represent the true parties or terms of a financial transaction that took place… [and instead[ was at best a ‘broker’ to ‘Doe Investors’ that used its name in lieu of the real parties in violation of California Civil Code § 1558….” (FAC, ¶¶ 16-17.) Nevertheless, the FAC attaches the deed of trust, recorded on May 30, 2005, and signed by plaintiff Melita M. Allen (“Plaintiff”). (See FAC, ¶ 26, exh. A.) A notice of default was recorded against the subject property on July 29, 2011. (See FAC, ¶ 35, exh. C.) A notice of trustee’s sale was recorded against the subject property on October 31, 2012. (See FAC, ¶ 41, exh. E.) A trustee’s deed upon sale was recorded against the subject property on September 14, 2012. (See FAC, ¶ 44, exh. F.) The FAC alleges claims for:

1) cancellation of written instrument;
2) wrongful foreclosure;
3) quasi-contract;
4) accounting;
5) slander of title;
6) unfair business practices; and,
7) quiet title.

Here, Plaintiff fails to allege tender, or the ability to tender. Instead, Plaintiff argues that the tender rule does not apply because it would be inequitable to apply the tender rule since it “would undermine the very claims made by the Plaintiff that Defendant has no interest in the Subject Property or Subject Loan.” (See Pl.’s opposition to demurrer, p.5:6-16.) However, Plaintiff is incorrect. (See Karlsen v. American Savings & Loan Assn. (1971) 15 Cal.App.3d 112, 117 (stating that “[a] valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust”); see also Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 577-582; see also FPCI Re-Hab 01 v. E & G Investments, Ltd. (1989) 207 Cal. App. 3d 1018, 1021 (requiring “tender [of] the full amount owing”); see also Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 877 (stating “in the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust”); see also McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394 (stating that the complaint failed to state facts sufficient to constitute a wrongful foreclosure claim because the plaintiffs “did not make a proper tender under Civil Code sections 2905 and 2924c”); see also Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 (stating that plaintiffs “are required to allege tender of the amount of… secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure”); see also Civ. Code § 2924c(b)(2) (stating that “[a]ny failure to comply with the provisions of this subdivision shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice”); see also Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 (stating that “it is a debtor’s responsibility to make an unambiguous tender of the entire amount due or else suffer the consequence that the tender is of no effect”); see also Shimpones v. Stickney (1934) 219 Cal. 637, 649 (stating that ““[i]t is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured”) ; see also Thompson v. Residential Credit Solutions, Inc. (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 61598 *1, *15 (stating that “[t]he tender rule applies to a quiet title action”), citing Kozhayev v. America’s Wholesale Lender (E.D.Cal. 2010) 2010 U.S. Dist. LEXIS 77553 *1, *13; see also Palominos v. Citibank, N.A. (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 60259 *1, *29 (stating that “a quiet title claim is doomed in the absence of Plaintiffs’ tender”); see also Velasquez v. Chase Home Fin. LLC (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 55350 *1, *11 (stating that “any claim to quiet title cannot lie in the absence of tender”); see also Kelley v. Mortgage Elec. Registration Sys. (N.D. Cal. 2009) 642 F. Supp. 2d 1048, 1057 (dismissing quiet title claim because “Plaintiffs have not alleged… that they have satisfied their obligations under the Deed of Trust… [and a]s such, they have not stated a claim to quiet title”); see also Briosos v. Wells Fargo Bank (N.D.Cal. 2010) 737 F.Supp. 2d 1018, 1032 (stating that “to maintain a quiet title claim, a plaintiff is required to allege tender of the proceeds of the loan at the pleading stage”), citing Velasquez v. Chase Home Fin. LLC (N.D.Cal. 2010) 2010 U.S. Dist. LEXIS 82065 *1, *11; see also Deerinck v. Heritage Plaza Mortgage, Inc. (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 45728 *1, *27 (same); see also Adegbenga Adesokan v. U.S. Bank, N.A. (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 15192 *1, *10-*11; see also Cunningham v. RBC Mortg. Co. (E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 43009 *1, *11; see also Wise v. Wells Fargo Bank, N.A. (C.D.Cal. 2012) 2012 U.S. Dist. LEXIS 53387 *1, *8; see also Kham v. Executive Trustee Services, LLC (E.D.Cal.2012) 2012 U.S. Dist. LEXIS 38566 *1, *38-*39; see also Phat Ngoc Nguyen v. Wells Fargo Bank, N.A. (N.D. Cal. 2010) 749 F. Supp. 2d 1022, 1033.) Accordingly, the demurrer to the first, second and seventh causes of action is SUSTAINED without leave to amend.

Moreover, the fact that the alleged promissory notes and deeds of trust were bundled with other notes and sold as mortgage-backed securities to Doe Investors (see FAC, ¶¶ 16-18) does not lead to a conclusion that Defendant would not have an interest in the subject property. (See Davidson v. Countrywide Home Loans, Inc. (S.D. Cal. 2010) 2010 U.S. Dist. LEXIS 24589 *1, *13-*14 (stating that “Plaintiff fails to… explain how… [the facts] that the Notes were bundled with other notes and sold as mortgage-backed securities… would lead to the conclusion that none of the Defendants have an interest in the Property”; also stating that “[i]t is well established that when a note secured by a mortgage is transferred, transfer of the note carries with it the security, without any formal assignment or delivery, or even mention of the latter”; also stating that “transfer of the note without the mortgage does not cause the mortgage to become null, nor the note to become unsecured; the mortgage automatically follows the note”); Sami v. Wells Fargo Bank (N.D. Cal. 2012) 2012 U.S. Dist. LEXIS 38466 *1, *13-*14; see also Logvinov v. Wells Fargo Bank (N.D. Cal. 2011) 2011 U.S. Dist. LEXIS 141988 *1, *8-*10; see also Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D. Cal. 2009) 652 F. Supp. 2d 1039, 1043.)

The third cause of action for quasi-contract alleges that Defendant was unjustly enriched by the trustee’s sale of the subject property and by proceeds from the third party sale of the subject property. (See FAC, ¶¶ 119-128.) As this cause of action too alleges an irregularity in the sale procedure, it too fails for failure to allege tender. (See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 (stating that plaintiffs “are required to allege tender of the amount of… secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure”); see also Fpci Re-Hab 01 v. E & G Invs. (1989) 207 Cal. App. 3d 1018, 1021 (stating that “an action to set aside a trustee’s sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security”).) Accordingly, the demurrer to the third cause of action is SUSTAINED without leave to amend.

The fourth cause of action for accounting alleges that “Plaintiff requires an accounting of all monies paid on her account….” (FAC, ¶ 135.) However, “[a] cause of action for an accounting requires a showing… that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2008) 173 Cal.App.4th 156, 179 (emphasis added).) Here, it is clear that Plaintiff should know the amount of all monies paid on her account such that an accounting is not necessary. Accordingly, the demurrer to the fourth cause of action is SUSTAINED without leave to amend.

The fifth cause of action for slander of title—and the dependent sixth cause of action for unfair business practices—is also premised on an irregularity in the sale procedure; thus, like the third cause of action, it too fails for failure to allege tender. (See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 (stating that plaintiffs “are required to allege tender of the amount of… secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure”); see also Fpci Re-Hab 01 v. E & G Invs. (1989) 207 Cal. App. 3d 1018, 1021 (stating that “an action to set aside a trustee’s sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security”).) Further, Plaintiff cannot maintain a slander of title claim against Defendant because of its statements in the notices in connection with the statutory foreclosure proceedings because Civil Code section 2924 specifically provides that “[t]he mailing, publication and delivery of notices as required by [the foreclosure statutes], [p]erformance of the procedures set forth in [the foreclosure statutes, and p]erformance of the functions and procedures set forth in [the foreclosure statutes if those functions and procedures are necessary to carry out the duties described…shall constitute privileged communications pursuant to Section 47.” (Civ. Code § 2924, subd. (d); see also Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333 (stating that “[w]e hold that section 2924 deems the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures, to be privileged communications under the qualified common interest privilege of section 47, subdivision (c)(1)”); see also Carswell v. JPMorgan Chase Bank N.A. (9th Cir. 2012) 500 Fed. Appx. 580, 583 (dismissing slander of title claim, stating that “[s]tatements made by Defendants in connection with the statutory nonjudicial foreclosure proceedings were privileged and cannot support a claim for slander of title”); see also Ananiev v. Aurora Loan Servs., LLC (N.D.Cal. July 10, 2012) 2012 U.S. Dist. LEXIS 95441 *1, *19-*20 (stating that “any notice or communication that is issued in the course of performing duties related to the non-judicial foreclosure sale is privileged and not actionable”), quoting Richards v. Bank of America, N.A. (N.D.Cal. Aug. 13, 2010) 2010 U.S. Dist. LEXIS 92389 *1, *10-*11.) The demurrer to the fifth and sixth causes of action is SUSTAINED without leave to amend.

Defendants BofA and ReconTrust (“demurring defendants”) now demur to the FAC. Without explanation, Plaintiff belatedly filed her opposition a mere two court days prior to the hearing. The matter was continued to the instant date.

Glaski and Jenkins

Plaintiff’s opposition relies principally on Glaski v. Bank of America (2013) 218 Cal.App.4th 1079—a case cited in BoNY’s demurrer. In Glaski, the appellate court decided to create a split of authority by holding that a borrower has standing to challenge the assignment of a loan to a securitized trust, even if the borrower was not a party to or a beneficiary of the assignment agreement. The Glaski holding was in direct contradiction to an earlier opinion that year, Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, which plainly stated that as “an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under [a] promissory note, [a plaintiff] lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions. Furthermore, even if any subsequent transfers of the promissory note were invalid, [plaintiff] is not the victim of such invalid transfers because [his] obligations under the note remained unchanged.” (Id. at p.515; see also Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85 (stating that “[t]he assignment of the deed of trust and the note did not change the [plaintiffs’] obligations under the note, and there is no reason to believe that Accredited as the original lender would have refrained from foreclosure in these circumstances… [and thus] the [plaintiffs] have no standing to complain about any alleged lack of authority or defective assignment”).)

As explained by a number of cases, the Glaski holding is a distinct minority view and most federal district court cases have criticized it or declined to follow it. (See Sporn v. JPMorgan Chase Bank N.A. (Jan. 27, 2014) 2014 Cal. App. Unpub. LEXIS 568 *1, *12-*14 (stating that “Glaski has been called ‘an outlier’ [citations] and, as set out in Sandri, most California federal district court cases have criticized it or declined to follow it”) [nonpub. opn.]; see also Gieseke v. Bank of Am., N.A. (N.D.Cal. Feb. 22, 2014) 2014 U.S. Dist. LEXIS 23794 *1, *9 (stating that “courts in this and other districts have noted that ‘Glaski represents a distinct minority view on the standing of third parties to enforce or assert claims based on alleged violations of a PSA,’ and that ‘courts in… [the Northern] District have expressly rejected Glaski and adhered to the majority view that individuals who are not parties to a PSA cannot base wrongful foreclosure claims on alleged deficiencies in the PSA/securitization process”; also stating that “[n]o published Court of Appeal decisions have attempted to reconcile Glaski with other California authority, but the one unpublished opinion to address this point characterized Glaski as the minority view and concluded that “the majority view is the better one.), quoting Apostol v. Citimortgage, Inc. (N.D.Cal. Nov. 21, 2013) 2013 U.S. Dist. LEXIS 167308 *1, *22-*23; see also Bergman v. Bank of Am., N.A. (N.D.Cal. Jan. 22, 2014) 2014 U.S. Dist. LEXIS 7933 *1, *10-*11 (stating that “Glaski represents a minority view… [t]he Court would decline to follow Glaski here… Plaintiffs do not allege—and cannot allege—that they are parties to the PSA and, thus, they lack standing to enforce it”); see also Rivac v. Ndex West LLC (N.D.Cal. Dec. 17, 2013) 2013 U.S. Dist. LEXIS 177073 *1, *13 (stating that “[t]his court is persuaded by the ‘majority position’ of courts within this district, which is that Glaski is unpersuasive, and that ‘plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA’”); see also Sepehry-Fard v. Dept. Stores Natl. Bank (N.D.Cal. Dec. 13, 2013) 2013 U.S. Dist. LEXIS 175320 *1, *14, fn. 6 (stating that “this Court has rejected the Glaski holding, finding it inconsistent with the majority of cases addressing the issue”); see also Shkolnikov v. JPMorgan Chase Bank (N.D.Cal. Dec. 14, 2012) 2012 U.S. Dist. LEXIS 177573 *1, *36 (stating that “plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA”); see also Dahnken v. Wells Fargo Bank, N.A. (N.D.Cal. Nov. 8, 2013) 2013 U.S. Dist. LEXIS 160686 *1, *5-*6 (stating that “the court adopts the ‘majority position’ of courts within this district, which is that ‘plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA’”); see also Maxwell v. Deutsche Bank Nat’l Trust Co. (N.D.Cal. Nov. 18, 2013) 2013 U.S. Dist. LEXIS 164707 *1, *5 (stating that “the majority of courts, including many judges in this district and circuit, as well as other California courts, have disagreed with [the Glaski] decision and its conclusion”); see also Subramani v. Wells Fargo Bank N.A. (N.D.Cal. Oct. 30, 2013) 2013 U.S. Dist. LEXIS 156556 *1, *9-*10 (stating that “the Court follows Jenkins, which appears to state the majority rule”); see also Newman v. Bank of N.Y. Mellon (E.D. Cal. Oct. 10, 2013) 2013 U.S. Dist. LEXIS 147562 *1, *9, fn. 2 (stating that “no courts have yet followed Glaski and Glaski is in a clear minority on the issue”); see also Toneman v. United States Bank (C.D.Cal. June 14, 2013) 2013 U.S. Dist. LEXIS 98996 *1, *28-*29; see also Mottale v. Kimball Tirey & St. John, LLP (S.D.Cal. Jan. 10, 2014) 2014 U.S. Dist. LEXIS 3398 *1, *12 (stating that “the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment”); see also Boza v. US Bank Natl. Assn. (C.D.Cal. Oct. 28, 2013) 2013 U.S. Dist. LEXIS 161196 *1, *17-*21 (stating that “other district courts have declined to follow Glaski, noting that it is ‘in a clear minority’ on the issue of standing”; also noting that “New York courts have held that a beneficiary can ratify a trustee’s ultra vires act… [and thus] New York courts do not apply New York Estates, Powers & Trusts Law § 7-2.4 literally”); also stating that “Glaski’s interpretation of New York Estates, Powers, and Trusts § 7-2.4 ‘would injure the parties that the statute is intended to protect’ because the purpose of the relevant provisions of the PSA is to ‘avoid[] later challenges’ to transfers into the trust, and ‘certificateholders would be harmed if they could not receive foreclosure proceeds because a transfer . . . did not comply with [the PSA]”); see also Sandri v. Capital One, N.A. (In re Sandri) (Bankr. N.D.Cal. 2013) 501 B.R. 369, 374-377 (stating that “Glaski is inconsistent with the majority line of cases and is based on a questionable analysis of New York trust law”); see also Flores v. EMC Mortg. Co. (E.D.Cal. Feb. 18, 2014) 2014 U.S. Dist. LEXIS 20772 *1, *17 (stating that “numerous courts disagree with and refuse to follow Glaski, including this Court; see also Snell v. Deutsche Bank Natl. Trust Co. (E.D.Cal. Jan. 27, 2014) 2014 U.S. Dist. LEXIS 11122 *1, *12-*15 (dismissing claim, noting that Jenkins was “in direct conflict with Glaski… [n]umerous courts have subsequently expressed their disagreement with Glaski and have continued to follow the Jenkins approach… the majority of courts, including many judges in this district and circuit, as well as other California courts, have disagreed with [the Glaski] decision and its conclusion…[and t]his Court adopts the majority position that ‘plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA’”); see also Covarrubias v. Fed. Home Loan Mortg. Corp. (S.D.Cal. Jan. 28, 2014) 2014 U.S. Dist. LEXIS 10527 *1, *10-*14 (stating that “the Court declines to follow Glaski and finds that Plaintiff lacks standing to challenge an agreement to which she was not a party”); see also Nguyen v. J.P. Morgan Chase Bank N.A. (N.D.Cal. Jan. 16, 2014) 2014 U.S. Dist. LEXIS 6009 *1, *6 (stating that “every court in this district that has evaluated Glaski has found it unpersuasive”); see also Diunugala v. JP Morgan Chase Bank, N.A. (S.D.Cal. Oct. 3, 2013) 2013 U.S. Dist. LEXIS 144326 *1, *22-25 (same); see also Haddad v. Bank of Am., N.A. (S.D.Cal. Jan. 8, 2014) 2014 U.S. Dist. LEXIS 2205 *1, *9-*14 (dismissing first amended complaint due to lack of standing, noting that Glaski’s reasoning is unpersuasive); see also Gates v. LPP Mortg., Inc. (C.D.Cal. Dec. 30, 2013) 2013 U.S. Dist. LEXIS 183638 *1, *8, fn.4 (stating that “[a]lthough a contrary rule was stated in Glaski [citation], the Court declines to follow this minority view”); see also Zapata v. Wells Fargo Bank, N.A. (N.D. Cal. Dec. 10, 2013) 2013 U.S. Dist. LEXIS 173187 *1, *4-*6 (stating that “Plaintiffs rely on Glaski [citation], to argue that they can challenge the securitization process… Glaski, however, is in the clear minority on this issue… [e]very court in this district that has evaluated Glaski has found it is unpersuasive and not binding authority”; also stating that “[u]ntil binding authority rules otherwise, the undersigned will follow the majority rule in Jenkins… therefore… plaintiffs have no standing to base their claims for relief on the securitization process or breaches of the Pooling and Service Agreement”); see also Scomparin v. Deutsche Bank Natl. Trust Co. (In re Scomparin) (Bankr. N.D.Cal. Jan. 15, 2014) 2014 Bankr. LEXIS 201 *1, *22-*23 (stating that “[c]onsistent with Sandri and the majority of California court decisions that have addressed this issue, this court finds that Plaintiff has no standing to successfully challenge the validity or effectiveness of the transfer”).) This court, too, adopts the better reasoned majority view of Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497. Accordingly, the demurrer to the FAC is SUSTAINED without leave to amend.

Plaintiff’s failure to allege tender

“A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.” (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 117; see also Shimpones v. Stickney (1934) 219 Cal. 637, 649 (stating that “a mortgagor cannot quiet his title against the mortgagee without paying the debt secured”).) Plaintiffs “are required to allege tender of the amount of [the] secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure.” (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109, citing Fpci Re-Hab 01 v. E & G Invs. (1989) 207 Cal.App.3d 1018, 1021-1022 (stating that “a junior lienor must allege tender of the senior obligation as an essential element of any causes of action based upon irregularities in the sale procedure”); see also Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578 (stating that “[i]t is settled that an action to set aside a trustee’s sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security”; also stating that “a junior lienor must allege tender of the senior obligation as an essential element of any causes of action based upon irregularities in the sale procedure”; also stating that “[a] cause of action ‘implicitly integrated’ with the irregular sale fails unless the trustor can allege and establish a valid tender”).) Demurring defendants demur to Plaintiff’s claims based on Plaintiff’s failure to tender.

Here, it is clear that Plaintiff’s causes of action are implicitly integrated with the foreclosure sale, and Plaintiff, in opposition, does not dispute that the claims are so implicitly integrated. Instead, in opposition, Plaintiff concedes that issue and asserts that “Defendants[’] tender arguments are misplaced because Plaintiff is alleging a void sale and not a mere procedural irregularity.” (Pl.’s opposition to demurrer (“Opposition”), p.5:15-16.) However, Plaintiff’s arguments in opposition again hinge on Glaski. (See Opposition, p.3:3-26 (stating that “Plaintiff has alleged assignment of the underlying debt is void as an ultra vires act contrary to the governing law of the trust it alleges to act as trustee for per Glaski”; also stating that “the Fifth District Court of Appeal in Glaski [citation] specifically covered and found virtually all causes of action presented to this court in the FAC stated a claim”).) Glaski’s conclusion at pages 1096-1097 were premised on its interpretation of New York Estates, Powers, and Trusts § 7-2.4—an interpretation that has been roundly criticized as ill reasoned. (See Deutsche Bank Natl. Trust Co. v. Adolfo (N.D.Ill. Aug. 28, 2013) 2013 U.S. Dist. LEXIS 122805 *1, *10-*11 (stating that “we are persuaded by the courts that have held that a transfer that does not comply with a PSA is voidable, not void… [since Glaski’s] contrary interpretation would injure the parties that the statute is intended to protect”); see also Snell v. Deutsche Bank Nat’l Trust Co. (E.D.Cal. Jan. 27, 2014) 2014 U.S. Dist. LEXIS 11122 *1, *12-*16; see also Boza v. US Bank Natl. Assn. (C.D.Cal. Oct. 28, 2013) 2013 U.S. Dist. LEXIS 161196 *1, *16-*21 (stating that “several state and district courts that have analyzed the effect of New York law on post-closing date acquisitions, like the one at issue in Glaski, have concluded that such transfers are voidable rather than void”; also stating that “[o]ne court reasoned that Glaski’s interpretation of New York Estates, Powers, and Trusts § 7-2.4 ‘would injure the parties that the statute is intended to protect’ because the purpose of the relevant provisions of the PSA is to ‘avoid[] later challenges’ to transfers into the trust, and ‘certificateholders would be harmed if they could not receive foreclosure proceeds because a transfer . . . did not comply with [the PSA]’”).) As previously stated, the Court declines to follow the clear minority opinion of Glaski and opts to follow Jenkins. For this reason, and for reasons already stated in the prior order regarding the demurrer, the demurrer to the FAC is SUSTAINED without leave to amend on this basis as well.