2012-00137397-CU-OR

Dennis Collins vs. Real Property in Rem

Nature of Proceeding:    Hearing on Demurrer

Filed By:   Wintterle, Rachel

Defendant Bank of America, NA’s Demurrer to Self-Represented Plaintiff Dennis
Collins’ First Amended Complaint was continued to today’s date by the Court for
further briefing.

The Court ordered that Defendant’s brief be filed by June 11, 2014, the Court has
received and considered that Supplemental Brief.

The Court further ordered that plaintiff Dennis Collins submit his Supplemental Brief on
June 16, 2014.  Instead, plaintiff in pro per filed his “Plaintiff’s response for the
discharged note premise” on the same day that Defendant filed its papers, June 11,
2014. Although two proofs of service are attached to plaintiff’s papers, neither of them
is addressed to counsel for the moving party defendant.

Based upon the issue raised at oral argument, and the papers submitted, it appears
that Carol Collins, the signatory on the Note and Deed of Trust for the subject real
property, has filed for bankruptcy protection and has been discharged in bankruptcy.
While that Bankruptcy discharge protects Carol Collins from her personal obligation to
pay the Note, it has no effect on whether the Note and Deed of Trust are enforceable
contracts.

Absent some action by the representative of the bankruptcy estate, liens ordinarily
pass through bankruptcy unaffected, regardless whether the creditor holding that lien
ignores the bankruptcy case, or files an unsecured claim when it meant to file a
secured claim, or files an untimely claim  after the bar date has passed. County of
Ventura Tax Collector v. Brawders (In re Brawders), 503 F.3d 856, 867-868 (B.A.P.
9th Cir. 2005) Although Carol Collins’ personal liability for the debt under the Deed of
Trust and Note was discharged in bankruptcy, a preexisting lien on the real property,
however, remains enforceable against that property even after an individual’s personal
liability has been discharged. Connor v. United States (9th Cir. 1994) 27 F.3d 365,
366.

Here, where Carol Collins executed a Quit Claim deed, transferring her interest in the
real property to the plaintiff, Dennis Collins, the lender’s only recourse is against the
real property itself, and the court modifies its prior tentative ruling as follows:

Defendant Bank of America, NA’s Demurrer to Self-Represented Plaintiff’s First
Amended Complaint is SUSTAINED, with and without leave to amend.

At the outset, the Court would note that a self-represented party is to be treated like
any other party and is entitled to the same, but no greater consideration than other
litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d
941, 944) Thus, as is the case with attorneys, self-represented litigants must follow
correct rules of procedure. Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247;
see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.
Plaintiff’s 36 page Opposition to the Defendant’s Demurrer exceeds the 15 page limit
provided in California Rules of Court, Rule 3.1113. The Court declines to consider
pages 16-36 of the document. This is the second time that self-represented plaintiff
has failed to abide by the page limitations.

Plaintiff Dennis M. Collins’ First Amended Complaint attempts to allege seven causes
of action.

Defendant’s demurrer on the grounds that plaintiff has failed to join an indispensable
party, inter alia. Plaintiff has failed to join his ex-wife and co-owner and co-borrower on
the subject property, Carol Dianne Collins, as a party plaintiff to this action. Plaintiff is
required by statute to joined as a party in the action every person if (1) in her absence
complete relief cannot be accorded among those already parties or (2) she claims an
interest relating to the subject of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair or impede her ability to
protect that interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest. If she has not been so joined, the court shall order that
she be made a party. C.C.P., sec. 389(a).

Here, plaintiff has failed to join his wife in the First Amended Complaint, and has failed
to set forth in a complaint the names of all persons having an interest in the action who
have not been joined, and the reasons for their nonjoinder. C.C.P., sec. 389(c). This
constitutes a significant defect requiring that this demurrer to each cause of action be
SUSTAINED, without leave to amend, as leave to do so was previously granted and
plaintiff failed to comply with the Court’s order.

st       nd
The demurrer to the 1   and 2           causes of action is SUSTAINED without leave to
amend.

Plaintiffs 1st cause of action (judgment on void note) and 2nd cause of action
(cancellation of voidable note) seek the cancellation of the promissory note.  However,
Plaintiff did not sign the Note. Only Carol Collins signed the Note and only she has
standing to enforce it or seek its cancellation. She is not a party to the suit.  Therefore
the demurrer is sustained without leave to amend.

rd
Demurrer to the 3   cause of action for intentional misrepresentation is SUSTAINED,
without leave to amend.

In California, fraud must be pled specifically; general and conclusory allegations do not
suffice. Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 184.  This particularity
requirement necessitates pleading facts which “show how, when, where, to whom, and
by what means the representations were tendered. Stansfield v. Starkey (1990) 220
Cal. App. 3d 59, 73.

No specifics have been alleged here. Even if he could allege misrepresentation, he is
not a party to the Note. Therefore, he cannot show he was damaged by any purported
misrepresentation relating to it. Therefore, this cause of action should be dismissed
without leave to amend.

th
Demurrer to the 4   cause of action for violation of the Fraudulent Transfer Act (Cal.
Civ. Code § 3439 et seq.) is SUSTAINED, without leave to amend. If plaintiff is
alleging the fraudulent transfer of the Subject Property, there has been no foreclosure
sale and thus there can be no fraudulent transfer.

th
Demurrer to the 5   Cause of Action for Equitable Offset is SUSTAINED, without leave
to amend.

The fifth cause of action alleges the loan was offset by TARP funds. As Plaintiff is not
a party to the Note, he has no standing to bring this unusual claim.

th
Demurrer to the 6   cause of action for reconveyance is SUSTAINED, without leave to
amend.

Absent payment of the monies due on the loan, there can be no reconveyance of title
to the property. Because the loan has not been paid off (RJN, Ex, D), demurrer to this
cause of action is sustained without leave to amend.

th
Demurrer to the 7   cause of action for quiet title is SUSTAINED,  with leave to amend.

Quiet title is “the relief granted once a court determines that title belongs in plaintiff.”
Leeper v. Beltrami (1959) 53 Cal.2d 195, 216.  Plaintiff’s basis to quiet title is the
execution of the Quit Claim Deed by Carol Collins.

Plaintiff fails to allege a cause of action to quiet title because he has not
unconditionally tendered – or even offered to tender – the debt owed. “It is settled in
California that a mortgagor cannot quiet his title against the mortgagee without paying
the debt secured.” Shimpones v. Stickney (1934) 219 Cal.637, 649. To bring an action
to quiet title a plaintiff must allege he or she has paid any debt owed on the property.

Plaintiff may have leave to file his Second Amended Complaint to plead a cause of
action for Quiet Title only. The SAC shall be filed and served not later than Monday,
July 7, 2014.  The responsive pleading shall be due filed and served 10 days later (15
days if service is by mail).

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.