Defendant Wells Fargo’s demurrer to the First Amended Complaint is overruled as to the 1st, 2nd, 3rd 6th and 7th causes of action.

The demurrer is SUSTAINED without leave to amend as to the 4th and 5th causes of action.

Defendant’s request for judicial notice of the uncertified copies of the Certificate of Corporate Existence; Letter of 11/19/07 from the Office of Thrift Supervision, Department of the Treasury regarding the Wachovia Mortgage name change; Charter of Wachovia Mortgage; Official Certification of the Comptroller of the Currency; FDIC profile and history of World Savings Bank; and the Adjustable Rate Mortgage Note, is GRANTED as to all documents except the last one, the Adjustable Rate Mortgage Note. This does not come within Evidence Code §452.The court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid.Code § 452(h).) However, the Court will not take judicial notice of hearsay allegations stated therein. (Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196.)

Defendant is ordered to Answer the First Amended Complaint as to the overruled causes of action within 10 days and to give notice of ruling.

Statute of Limitations

Defendant asserts that 1st, 2nd, 3rd and 7th causes of action, for intentional misrepresentation, negligent misrepresentation, promissory fraud and promissory estoppel are all barred by the 3 year statute of limitations because the representations were made before 10/18/10 and plaintiff did not file his complaint until 10/18/13.

Defendant is wrong on the date of accrual of the cause of action. It is not when defendant made the misrepresentations that trigger the statute of limitations; it is triggered when plaintiff should have reasonably known that the representations were false. This occurred on 10/18/10 (using the original date pled by plaintiff in his original complaint) when plaintiff received the letter stating for the first time that the foreclosure sale was set to proceed two days – and not 30 days later as promised. This is sufficient to overrule the demurrer on the statute of limitations issue. Plaintiff was not under a duty to immediately investigate the truth of defendant’s statements the minute they were made. Defendant’s authority has no applicability here. (General Bedding Corp. v. Echevarria (9th Cir. 1991) 947 F.2d 1395, 1397.)

Plaintiff is not bound by constructive notice because the Notice of Default was recorded to bar his claims as a matter of law at the demurrer stage. Constructive notice goes to prospective buyers as to the status and condition of title on real property. It has nothing to do with being applied to statute of limitations on fraud tort claims. (Seeger v. Odell (1941) 18 Cal.2d 409, 413-14;

Preemption by HOLA

Defendant argues that plaintiff’s common law claims are preempted by Federal Law under the Homeowners Loan Act 12 U.S.C. § 1461 et seq. (HOLA). However, defendant doesn’t provide sufficient authority that preemption exists for these specific post modification claims herein.

Certain fraud claims would not fall under HOLA preemption, such as fraud regarding the terms of the loan or misrepresentations that a loan would be modified. (Ortiz v. Wells Fargo Bank, N.A., No. C 10–4812 RS, 2011 U.S. Dist. LEXIS 58243, at *12–13 (N.D.Cal. May 27, 2011) (stating that, “[w]here a party adequately alleges a claim that loan documents were procured through fraud in the inception, the state law claim would not represent an attempt to impose on the lender any specific disclosure duties or other obligations that would contravene or interfere with the national regulatory scheme contemplated by HOLA, and therefore no basis for applying preemption would arise”); Becker, 2011 U.S. Dist. LEXIS 29687 at *23–24 (E.D.Cal. Mar. 21, 2011) (fraud claim based on alleged promise that lender would modify loan on certain terms not preempted); Silvas, 514 F.3d at 1004–06 (“Section 560.2(c) provides that state laws of general applicability only incidentally affecting federal savings associations are not preempted.”); Rumbaua v. Wells Fargo Bank, N .A., No. 11–1998 SC, 2011 U.S. Dist. LEXIS 95533, at *19 (N.D.Cal. Aug.25, 2011) (HOLA does not “preempt all state law causes of action arising out of loan modification and/or foreclosure proceedings, but only those that impose new requirements on the lender.”). (Castillo v. Wachovia Mortg. (N.D.Cal.2012) 2012 WL 1213296, 6.)

Here, the promise was that defendant would give plaintiff 30 days’ notice before foreclosing on the property. This is similar to the representation that the lender would modify the loan on certain terms. Thus, the claims made by plaintiff are not preempted by HOLA

1st Cause of Action – Intentional Misrepresentation

For the cause of action for fraud, Plaintiffs must allege: (1) misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) The claim must be stated with particularity, which requires specific facts to show “how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) A fraud claim against an entity requires even more specificity, as the plaintiff must also allege “[1] the names of the names of the persons who made the allegedly fraudulent representation, [2] their authority to speak, [3] to whom they spoke, [4] what they said or wrote, and [5] when it was said or written. (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153,157.)

Here, plaintiff alleges that defendant through its representative Acuna represented that it would give plaintiff 30 days written notice before foreclosing and selling his property to allow him to cure the default and to ignore all letters from the trustee which were processed letters. The representations were false because plaintiff received a letter on 10/18/10 for a sale two days later. Plaintiff alleges defendant knew them to be false because they intended to have plaintiff rely on the promise so it could immediately foreclose without plaintiff being able to cure the default. Plaintiff did rely on the representation and proceeded with Wells Fargo’s modification process believing he would have time to cure the default from another source if defendant denied his modification. (paragraph 25-32.)

Plaintiff has alleged sufficient facts with specificity to state the fraud cause of action

Defendant argues that plaintiff had notice as of 10/1/10 when notice of default was served and that the statutory requirements were being followed by defendant. This is significant for claiming wrongful foreclosure and seeking to stop or void a sale, but that is not what plaintiff is suing for in this action. Here, plaintiff is suing for fraud and monetary damages based upon intentional misrepresentations made to defraud plaintiff from his property.

2nd Cause of Action – Negligent Misrepresentation

This cause of action relies on the same allegations as the fraud with the exception, that plaintiff asserts that defendant acted negligently. Defendant argues that it had no duty to plaintiff; — essentially to not make representations that it had no reasonable grounds for believing the representations were true. This is not true. Although a lending institution owes no duty of care to a borrower, as a general rule, (Nymark v. Heart Fed. Sav. & Loan Ass’n (1991) 231 Cal. App. 3d 1089, 1096), a lender cannot make misrepresentations and then claim it is absolved of liability. (Meyers v. Guarantee Sav.& Loan Assn. (1978) 79 Cal. App. 3d 307, 312.)

3rd Cause of Action – Promissory Fraud & 7th Cause of Action – Promissory Estoppel

These causes of action rely on the same primary allegations as the misrepresentation causes of action which are sufficient to state the 3rd and 4th causes of action.

The elements for promissory estoppel are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) reasonable and foreseeable reliance; and (4) the party asserting the estoppel must be injured by his reliance. (Thomson v. International Alliance of Stage Employees (1965) 232 Cal. App. 2d 446, 454.) The doctrine of promissory estoppel is inapplicable where no clear promise is made. (Division of Labor Law Enforcement v. Transpacific Trans. Co. (1977) 69 Cal. App. 3d 268, 275; Laks v. Coast Fe, Savings & Loans Assn. (1976) 60 Cal. App. 3d 885, 891.) In addition, “[t]he party claiming estoppel must specifically plead all facts relied on to establish its elements. [Citations omitted].” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.)

Allegations of a lender’s oral promise to “‘work … on a mortgage reinstatement and loan modification,’” coupled with the borrower’s reliance by deciding to forego bankruptcy relief, constituted promissory estoppel, which served as a substitute for the consideration required in order to enforce an oral promise related to postponing mortgage payments and a foreclosure sale. (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 226.

Plaintiff has alleged (1) a clear and unambiguous promise – that defendant would not foreclose for 30 days after he received written notice from them, and that after receiving the letter on 10/18/10 they foreclosed 2 days later. This is sufficient to state a claim for promissory estoppel and promissory fraud. (Beck v. American Health Group Internat. Inc., (1989) 21 Cal.App.3d 1555, 1563.)

4th Cause of Action – Breach of Oral Contract and 5th Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

Plaintiff again relies on the same promise by Wells Fargo as that being an oral agreement which he claims they breached. The allegations do not constitute an oral agreement. There was no consideration on plaintiff’s part for defendant’s promise that it would not foreclose until 30 days after it gave plaintiff written notice. Further there were no terms or conditions for plaintiff to perform. This is at most claims for misrepresentation or promissory estoppel, but there clearly is no formation of any oral contract.

Because there is no oral contract, there can be no breach of an implied covenant of good faith and fair dealing.

6th Cause of Action – Violation of B&P Code § 17200

Generally the viability of the claim depends upon whether the underlying causes of action withstand scrutiny. (E.g., Boschman v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 254 (federal TILA claim provides a predicate law violation for a claim for unfair business practices, even though plaintiffs do not expressly allege such violations); Sullivan v. JP Morgan Chase Bank, NA (E.D.Cal. 2010) 2010 WL 2643311, 8 (plaintiffs sufficiently pled a claim under Business and Professions Code Section 17200 based upon sufficient TILA and negligence claims serving as the predicate acts);

Here, plaintiff has alleged fraud claims against defendant. This is sufficient to support the wrongful business practices prong of the claim. Particularity is not required. (Quelimane Co. Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 47.) Lastly, the claim is not duplicative because it seeks different remedies based on a multiplicity of wrongs.