Anh Quach v. Bank of America

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

 

Case No.:       1-13-CV-238864

 

Demurrer by Defendant Select Portfolio Servicing, Inc. to the Second Amended Complaint of Plaintiff Anh Quach   

 

Request for Judicial Notice

 

Defendant’s request for judicial notice is GRANTED, but only insofar as the court takes judicial notice of the existence of the documents and perhaps their legal effect, not necessarily the truth of matters asserted therein.  (See Evid. Code § 452, subds. (d), (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [courts may take judicial notice of the existence and recordation of real property records].)

 

Demurrer to the Second Amended Complaint

 

Defendant argues that the entire second amended complaint (“SAC”) fails because Plaintiff lacks standing to challenge a securitized trust and fails to allege any prejudice.  (See Memo of P’s & A’s at pp. 6-9.)  However, these arguments were addressed and overruled on the demurrer to the first amended complaint.  Furthermore, the recent legal authorities cited by the Defendant do not offer any compelling basis for a different ruling with respect to these issues.

 

Alternatively, Defendant claims that Plaintiff fails to allege any facts, statute or contract to support the allegation that Defendant is the “successor-in-interest” to defendant Bank of America, N.A. (“BANA”).  (See SAC at ¶ 13.)  However, as the opposition points out, the SAC specifically alleges that Defendant is liable as the “successor-in-interest” to BANA pursuant to a servicing transfer agreement.  (Id. at ¶¶ 36, 39, 40, 42, 44, 47, and 49.)  Such an allegation must be accepted as true for purposes of demurrer.  (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823.)  Whether or not the servicing transfer agreement actually assigned successor liability to Defendant is a factual issue to be decided in a dispositive motion or during trial.  (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [to survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged].)

 

Therefore, Defendant’s demurrer to the SAC on the ground that it fails to state a claim is OVERRULED.

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