The Court rules as follows on the demurrer to plaintiff’s First Amended Complaint (“FAC”), brought by defendant Wells Fargo Bank, N.A.. The demurrer is sustained without leave to amend as to all causes of action. (Code Civ. Proc., section 430.10, subd. (e).) Defendant shall prepare a proposed judgment of dismissal, as a document separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff’s counsel for approval as to form. The basis for this ruling is as follows.

Request for Judicial Notice

Defendant’s request for judicial notice, filed on December 10, 2013, is granted. (See, Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-761; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 267.)

The Pleading of the FAC

The Court notes that the allegations of the FAC would not appear to be materially different from those of the original Complaint, with two exceptions: (1) the causes of action as to which a demurrer was sustained without leave to amend have been omitted, and; (2) the FAC inexplicably omits the exhibits that were attached to the original Complaint, even though the exhibits are still referenced in the FAC. Remarkably, the 52 paragraphs of introductory allegations, on which each cause of action is founded, appear to have been repeated verbatim in the FAC. Thus for example, the incomplete identifications of the two defendants, which are not even complete sentences, are repeated in the FAC. (See, FAC, paragraphs 3 and 4.)

In light of this failure to materially amend the original Complaint, the Court incorporates by reference into this ruling the Court’s ruling on defendant’s first demurrer, issued on September 23, 2013. If plaintiff’s counsel contests this aspect of the Court’s tentative ruling, plaintiff’s counsel shall provide to the Court and opposing counsel, at the hearing, a highlighted copy of the First Amended Complaint showing in what material respect plaintiff’s original Complaint has been amended; additional allegations that are conclusory, rhetorical, or consist merely of citations to legal authorities will not be considered material.

The Court also supplements its original ruling with the following analysis.

Miscellaneous Non-Viable Theories of Liability

Nowhere in the FAC does plaintiff intelligibly allege an actionable defect in the subject nonjudicial foreclosure proceeding. Insofar as certain allegations in the FAC hint at possible legal theories, they are for the most part theories that have been soundly rejected by recent decisions of the Court of Appeal.

Thus, California law does not require that an assignment of a deed of trust be recorded. (See, Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1506 [demurrer based on lack of recorded assignment sustained because “the lender could have assigned the note to the beneficiary in an unrecorded document not disclosed to plaintiffs”]. See also, Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 121-125.) The foreclosing party is not required to have physical possession of the promissory note. (See, Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 511-512; Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 440-442.) And a notice of default may be recorded by any authorized agent of the beneficiary, not just by the trustee of record. (See, Civil Code, section 2924, subdivisions (a)(1) and (a)(6).)

Prejudice

In addition to failing to intelligibly allege a defect in the subject nonjudicial foreclosure proceeding, plaintiff has also failed to allege facts showing how any such defect was prejudicial. (See, Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 232 [notice of default’s designation of incorrect beneficiary not prejudicial]; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 94 99.)

Tender

As to the First Cause of Action for declaratory relief and the Fifth Cause of Action for quiet title, plaintiff has also failed to allege tender, and has failed to allege facts showing an applicable exception to the rule requiring tender. (See, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 [the tender rule is strictly applied]; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 [plaintiff is required to allege tender “to maintain any cause of action for irregularity in the sale procedure”]; Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-580 [statement of the tender rule]; Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 117 [tender must be “valid and viable”].)

Failed Securitization

One of plaintiff’s two primary legal theories would appear to be that plaintiff has a cause of action for quiet title based on the allegedly defective securitization of plaintiff’s loan. Plaintiff’s argument is based on the recent Glaski decision. (See, Glaski v. Bank of America (2013) 218 Cal.App.4th 1079.) The Court finds that the Glaski decision does not provide support for any of plaintiff’s surviving causes of action, on three independent grounds.

1. Glaski is Distinguishable.

The Glaski decision emphasized that alleging a viable theory of defective securitization “requires more than simply stating that the defendant who invoked the power of sale was not the true beneficiary under the deed of trust. [Emphasis added.]” (Id., 218, Cal.App.4th at 1094.) Instead, the plaintiff “must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. [Emphasis added, citation omitted.]” (Ibid.) In the case at bar, plaintiff has not alleged such facts.

Thus, for example, plaintiff fails to allege the crucial fact of where the subject real estate investment trust was formed. The Glaski decision was based on a finding that New York law applied to the trust at issue in that decision, and that a transfer after the closing date was void under New York law. (Id., 218 Cal.App.4th at 1096 [“[t]he allegation that the WaMu Securitized Trust was formed under New York law supports the conclusion that New York law governs the operation of the trust”].) In the case at bar, plaintiff has provided the Court with no basis for determining what law governs the operation of the subject trust.

Further, to the extent that plaintiff’s allegations can be understood, plaintiff affirmatively alleges that plaintiff’s loan was sold to the subject trust “on or before the close of the” trust. (FAC, paragraph 20.) The fact that this timely sale was not immediately documented with a recorded notice of assignment is not material. (See, Herrera, supra, 205 Cal.App.4th at 1506 [demurrer based on lack of recorded assignment sustained because “the lender could have assigned the note to the beneficiary in an unrecorded document not disclosed to plaintiffs”]. See also, Calvo, supra, 199 Cal.App.4th at 121-125.)

2. There Is A Split of California Authority.

There is a split of California authority as to whether a borrower has standing to challenge defective securitization. The Glaski decision made no effort to distinguish the earlier Jenkins decision, which held that a borrower does not have such standing. (See, Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-515.) The Court notes that many subsequent decisions have criticized, distinguished, and refused to follow Glaski, and that an application to depublish Glaski has been under review by the California Supreme Court for several months.

When there are conflicting decisions in the California appellate courts, a California trial court is free to follow the decision it finds more persuasive. (See, Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [“the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions”].) The Court finds Jenkins to be the more persuasive authority.

3. Glaski Did Not Address Prejudice.

The Glaski decision dealt with the issues of (1) whether a defective securitization was void or merely voidable under New York law, (2) whether the borrower had standing to assert defective securitization, and (3) whether the borrower was required to tender the amount of the subject loan. The Glaski decision did not deal with the question of whether a borrower in default can sue based on a defective assignment of the borrower’s loan, when the borrower has alleged no prejudice.

The Court finds the California decisions that do address this issue to be dispositive here. (See, Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85 [borrowers in default “ fail to allege any facts showing that they suffered prejudice” through defective assignment]; Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507-08 [“[e]ven if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced”]; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 [“it is difficult to conceive” how borrower in default could have been prejudiced by defective assignment].) In the case at bar, plaintiff has failed to allege any facts showing that plaintiff was not in default on plaintiff’s loan at the time foreclosure documents were recorded, and has failed to allege any facts showing how the allegedly defective assignment of plaintiff’s loan from the original lender to the current beneficiary caused plaintiff prejudice; it must be presumed that any entity holding the beneficial interest in plaintiff’s loan would have foreclosed, in order to mitigate its damages following plaintiff’s conceded default.

Homeowner Bill of Rights

As a threshold matter, the Court notes that the FAC does not set out a separate cause of action for violation of the Homeowner Bill of Rights (“HBOR”). Plaintiff’s introductory allegations contain vague references to HBOR, and alleged violations of HBOR are referenced as unlawful acts in plaintiff’s Fourteenth Cause of Action for violation of the Unfair Competition Law (“UCL”), but there is no separate cause of action. In any event, plaintiff has not alleged a viable theory of HBOR liability.

Thus, plaintiff acknowledges that defendant is a party to the consent judgment referenced in section 2924.12 of the Civil Code, subdivision (g). (See, e.g., FAC, paragraph 37.) But plaintiff fails to allege facts showing why defendant is not immune from HBOR liability under that Civil Code section.

Also, plaintiff unqualifiedly alleges, in paragraph 1 of her verified First Amended Complaint, that she is, and has been “at all times herein mentioned,” a resident of Marin County. The HBOR statute that plaintiff invokes apply only to a property that is “the principal residence of the borrower.” (Civ. Code, section 2924.15, subd. (a).) The residence at issue in the case at bar is located in Walnut Creek. (FAC, ¶ 2.)

Further, plaintiff acknowledges a lengthy period of negotiations with defendant dating back to January 2010. (FAC, paragraph 33.) But plaintiff does not allege facts showing why defendant was obligated to consider a new application for a loan modification submitted in 2013. (Civil Code, section 2923.6, subd. (g).) In light of the declaration of Alissa Doepp, filed on January 31, 2014, it would appear that this omission in the FAC was what might charitably be referred to as ‘artful pleading.’

Finally, plaintiff never expressly alleges that defendant had submitted a “complete” application for a loan modification when defendant recorded a notice of trustee’s sale in April 2013. (See, Civ. Code, section 2923.6, subd. (c).) Defendant correctly observes, in the memorandum filed on January 30, 2014, that the letters of April 4 and April 11, 2013, even if they had been attached to the FAC, are not admissions that defendant had received a “complete” application. (See, Civ. Code, section 2924.10, subd. (a) [servicer must send acknowledgment of the receipt of “any document in connection with a first lien modification application”].)

Individual Causes of Action

1st C/A. The First Cause of Action is for declaratory relief. The Court disagrees with defendant’s argument that HBOR somehow invalidates the Gomes decision. (See, Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154-57.) Further, plaintiff fails to explain why this cause of action is not superfluous, in light of plaintiff’s Fifth Cause of Action for quiet title. (See, Code Civ. Proc., section 1061; Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323-324 [no need for declaratory relief when issues raised “were fully engaged by other causes of action”]; General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470 [declaratory relief “should not be used for the purpose of anticipating and determining an issue which can be determined in the main action”].)

5th C/A. The Fifth Cause of Action is for quiet title. While one can make an argument that certain other types of pre-foreclosure causes of action do not require allegations of tender, such allegations are unquestionably required in a quiet title cause of action. (See, Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 87 [the borrower “sought to quiet title to the property, which he cannot do without paying the outstanding indebtedness”].)

6th C/A. The Sixth Cause of Action is for breach of the implied covenant of good faith and fair dealing. However, the implied covenant does not include a duty to negotiate a new contract in good faith. (See, Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) The implied covenant only concerns the implementation of contract terms already agreed upon. (Id.) So viewed, plaintiff has failed to intelligibly allege how defendant violated the implied covenant. Plaintiff allegedly contracted for a loan forbearance in January 2011, and defendant did not resume the nonjudicial foreclosure process until April 2013. There certainly was no implied obligation to grant plaintiff a loan modification.

7th-10th C/As. Despite the opportunity to amend, plaintiff has still failed to intelligibly allege any element of a fraud theory of liability. (See, Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. See also, Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [requirements for pleading fraud against a corporation]; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal. App. 4th 513, 519 [the heightened fraud standard of pleading applies to a cause of action for negligent misrepresentation].)

11th C/A. The Eleventh Cause of Action is for promissory estoppel. Despite the opportunity to amend, plaintiff has still failed to adequately allege the elements of this theory. (See, Thomson v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (1965), 232 Cal.App.2d 446, 454.) The Court notes that a party claiming promissory estoppel must specifically plead all facts relied on to establish these elements. (See, Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.)

14th C/A. In light of the Court’s findings above, plaintiff has failed to allege a cause of action under the Unfair Competition Law.