Case Number: BC492154    Hearing Date: July 10, 2014    Dept: 56

Case Name: Corpuz, et al. v. Bank of America, N.A., et al.
Case No.: BC492154
Matter: Demurrer
Moving Party: Defendants
Responding Party: Plaintiffs

Tentative Ruling: Demurrer is sustained

Plaintiffs Belinda Corpuz and Gary Abrams filed this action against various defendants arising out of the non-judicial foreclosure of property. After previous demurrers were sustained, Plaintiffs filed the operative Third Amended Complaint, asserting causes of action for (1) breach of contract, (2) cancellation of instruments, (3) quiet title, and (4) conversion. Defendants Bank of America NA, ReconTrust Company NA, Bank of New York Mellon, and Mortgage Electronic Registration Systems Inc. demur to the TAC (except the 4th COA which is not asserted against them).

1st COA, Breach of Contract –
The Court previously sustained Defendants’ demurrer to the breach of contract claim on the ground that Plaintiffs failed to allege facts as to Defendants’ breach. See Levy v. State Farm Mutual Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 5-6. The TAC does not cure this defect.

Plaintiffs’ breach of contract claim continues to be based on a “Tolling Agreement” entered on 4/30/10, pursuant to which Belinda Corpuz dismissed a prior action (BC417783) in exchange for tolling the statutes of limitations. As with the SAC, the TAC alleges breach of the Tolling Agreement when an unlawful detainer action was continued against Plaintiffs. The Tolling Agreement includes a provision that there was to be no action taken by any parties to the Tolling Agreement during the period when it was in effect, and a provision that it may be terminated upon notice.

In the TAC, Plaintiffs allege that Defendants “failed ‘to do something’ that the contract required Defendants to do such as review pursuing the unlawful detainer and or settle their disputes.” This fails to support breach of the Tolling Agreement merely by continuing an unlawful detainer action. The demurrer is sustained.

2nd and 3rd COAs, Cancellation of Instruments and Quiet Title –
The Court previously sustained Defendants’ demurrer to the SAC on the ground that Plaintiffs failed to allege credible tender of the amount of the secured debt to challenge the foreclosure (Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1109), to assert equitable claims (Dimock v. Emerald Properties LLC (2000) 81 Cal.App.4th 868, 877-78), or to quiet title (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477-78). The TAC does not cure these defects.

Plaintiffs’ opposition to the demurrer again asserts exceptions to the tender rule. See, e.g., Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112-13. However, the TAC fails to allege any new facts to support any exceptions. Plaintiffs’ argument that the foreclosure was void is based on the same allegations previously found to be insufficient by the Court.

Plaintiffs allege that there was no substitution of trustee recorded, but Defendants’ RJN establishes that ReconTrust was properly substituted as trustee on 8/4/08 (RJN Ex. A). See Dimock, 81 Cal.App.4th at 878.

Plaintiffs allege that the foreclosure was unauthorized based on the assignment of the deed of trust being backdated and improprieties in the securitization of Plaintiffs’ loan. But Plaintiffs cannot challenge whether a foreclosure was authorized (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155), or that Plaintiffs have no standing to challenge any improprieties in the securitization process (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.Appa.4th 497, 514-15; Lane v. Vitek Real Estate Industries Group (E.D. Cal. 2010) 713 F.Supp.2d 1092, 1098-99). Additionally, Plaintiffs have failed to allege any prejudice to challenge the foreclosure. See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.

Therefore, the demurrer is sustained as to the 2nd and 3rd COAs for failure to allege tender and failure to allege sufficient facts to support the claims.

Ruling –
The demurrer is sustained for all causes of action alleged against the Moving Defendants, without leave to amend. Plaintiffs have had multiple opportunities to allege sufficient causes of action, and there appears to be no reasonable probability that they can do so. Eg, Sprinkles v. Associated Indemnity (2010) 188 Cal.App.4th 69, 76; Long v. Century Indemnity (2008) 163 Cal.App.4th 1460, 1468; Vaillette v. Fireman’s Fund (1993) 18 Cal.App.4th 680, 685.

Counsel should submit a judgment of dismissal.