Case Name: Javid, et al. v. JPMorgan Chase Bank, N.A., et al.
Case No.: 1-13-CV-239211

On December 3, 2004, plaintiffs Yaminali and Athyia Javid (collectively, “Plaintiffs”) agreed to an ARM loan from Washington Mutual Bank, N.A. (“WAMU”) for $999,999, secured by the subject property. (See first amended complaint (“FAC”), ¶¶ 2, 19-20.) In 2009, defendant JPMorgan Chase Bank, N.A. (“Chase”) acquired or took over WAMU. (See FAC, ¶ 2.) When the loan’s monthly payment increased after the initial rate, Plaintiffs were unable to make the monthly payment. (See FAC, ¶ 25.) In April 2010, Plaintiffs defaulted on the loan. (See FAC, ¶ 25.) Since March 2010, Plaintiffs have tried to modify their loan, contacting Chase at their Santa Clara location to attempt a loan modification. (See FAC, ¶ 26.) In April 2010, Plaintiffs apparently talked to an employee at Chase who orally assured Plaintiffs that their loan would be modified, but that “their loan modification as per Obama Plan cannot be done unless they stop making payments.” (FAC, ¶ 27.) In June 2010, Plaintiffs again contacted the employee at Chase who informed Plaintiffs that their loan modification application was still under review, and that “their home will be out of foreclosure process until Plaintiffs’ loan modification application is pending with CHASE.” (FAC, ¶ 28.) On March 27, 2012, the Chase employee instructed Plaintiffs to resubmit their loan modification application. (FAC, ¶ 31.) In August 2012, the Chase employee told Plaintiffs that they “[we]re almost done with modification.” (FAC, ¶ 33.) On December 10, 2012, a different Chase employee, Sally Audet, told Plaintiffs that their loan modification application was under review and that Plaintiffs would receive a response within two weeks. (See FAC, ¶ 35.) However, Plaintiffs did not hear from Chase until January 2, 2013, when Ms. Audet told them that they did not qualify for a loan modification and that their loan modification was denied. (See FAC, ¶ 36.) On January 10, 2013, Plaintiffs filed a complaint. After Defendants demurred, Plaintiffs filed their FAC on March 27, 2014, asserting causes of action for: breach of oral contract; promissory estoppel; breach of the implied covenant of good faith and fair dealing; fraud; intentional misrepresentation; unfair business practices; quiet title; set aside sale; violation of the California Rosenthal Act; declaratory relief; and, preliminary and permanent injunctive relief.

Defendants Chase, for itself and as acquirer of certain assets and liabilities of WAMU from the Federal Deposit Insurance Corporation, as Receiver for WAMU, and California Reconveyance Company (“CRC”) (collectively, “Defendants”) demur to each cause of action of the FAC.

Defendants’ request for judicial notice is GRANTED. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382, quoting Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117; see also Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (stating that “a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language… [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document”); see also Stormedia Inc. v. Super. Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9; see also Evid. Code § 452, subds. (c), (d), (h).)

The first cause of action alleges that “CHASE breached the HAMP agreement with the federal government of which Plaintiff was a third party beneficiary by not offering Plaintiffs a HAMP Trial Period at a payment level of 31 percent of their income even though they met the HAMP criteria.” (FAC, ¶ 50; see also FAC, ¶¶ 48-49 (alleging that Chase orally promised a loan modification pursuant to HAMP and, that pursuant to HAMP, Chase was required to suspend all pending foreclosure proceedings).) However, Plaintiff lacks standing to allege such a breach of duty and cannot state a claim based on such breach. (See Warner v. Wells Fargo Bank, N.A. (C.D.Cal. 2011) 2011 U.S. Dist. LEXIS 66551 *1, *9-*10; see also Kilaita v. Wells Fargo Home Mortgage, et al. (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 142524 *1, *26-*27 (stating that “[t]he nature of HAMP does not provide Plaintiffs with a private right of action”; also stating that “[q]ualified borrowers under HAMP “‘would not be reasonable in relying on the Agreement as manifesting an intention to confer a right on him because the agreement does not require [a loan servicer to] modify eligible loans… [and t]hus, Plaintiffs lack standing to challenge HAMP compliance”); see also Cleveland v. Aurora Loan Servs., LLC (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 55168 (stating that “numerous courts have determined that individual borrowers do not have standing to sue under a HAMP SPA because they are not intended third-party beneficiaries of the SPA… [and] have ruled that there is no express or implied private right of action to sue lenders or loan servicers for violation of HAMP”; also stating that since “the alleged HAMP violations are not actionable, [they] thus cannot be used to support a claim under § 17200”).)

To the extent that the first cause of action is based on an oral agreement to modify the loan, such a contract would violate the statute of frauds. (See Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 553-554 (stating that “[a]n agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds”); see also Haffeman v. Wells Fargo Bank, N.A. (S.D.Cal. 2012) 2012 U.S. Dist. LEXIS 128657 *1, *8-*9; see also Garcia v. World Savings, FSB (2010) 183 Cal. App. 4th 1031, 1039 (stating that “a gratuitous oral promise to postpone a foreclosure sale or to allow a borrower to delay monthly mortgage payments is unenforceable”); see also Meadows v. First American Trustee Servicing Solutions, LLC (N.D.Cal. 2012) 2012 U.S. Dist. LEXIS 128666 *1, *7-*8 (stating that “any loan modification or forbearance agreement would be subject to the statute of frauds”); see also Rampp v. Ocwen Financial Corp. (S.D.Cal. 2012) 2012 U.S. Dist. LEXIS 102252 *1, *6; see also Gammad v. CitiMortgage, Inc. (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 146776 *1, *8-*9; see also Boatright v. Aurora Loan Services (N.D.Cal. 2012) 2012 U.S. Dist. LEXIS 94801 *1, *34-*35.) Further, the agreement is not supported by any consideration. (See Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 673 (stating that “[i]n the absence of consideration, a gratuitous oral promise to postpone a sale of property pursuant to the terms of a trust deed ordinarily would be unenforceable”).) In opposition, despite the California Supreme Court’s statement to the contrary, Plaintiffs assert that consideration is unnecessary due to the doctrine of promissory estoppel. (See Pls.’ opposition to demurrer to FAC (“Opposition”), p.3:5-26.) However, the allegations of the FAC establish that any such promise was not ‘clear and unambiguous in its terms’, and in fact, lacked any certain terms, making them only preliminary negotiations or an agreement for future negotiations. (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 483 (stating that “[u]nless an agreement to restructure a loan embodies definite terms, capable of enforcement, it is not a legally valid contract”; also stating that “[p]reliminary negotiations or an agreement for future negotiations are not the functional equivalent of a valid, subsisting agreement”); see also Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044 (stating that “[a] promise is an indispensable element of the doctrine of promissory estoppel”; also stating that “[t]he promise must, in addition, be ‘clear and unambiguous in its terms”; also stating that “unlike a party seeking to establish a promise in a pure breach of contract context, a party seeking to establish promissory estoppel cannot rely on extrinsic evidence to explain an ambiguous statement”), citing Division of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal. App. 3d 268, 277 and Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal. App. 3d 885, 890; see also National Dollar Stores, Ltd. v. Wagnon (1950) 97 Cal.App.2d 915, 919 (stating that “[e]stoppel cannot be established from … preliminary discussions and negotiations”).) It is possible, for example, that the terms of any modification would have been to Plaintiffs’ detriment. In opposition, Plaintiffs cite to Ansanelli v. JPMorgan Chase Bank, N.A. (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 32350 *1; however, that case is inapposite as it involved a trial modification plan with definite terms. Plaintiffs do not demonstrate that they can amend the first cause of action to allege facts sufficient to constitute any cause of action. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) The demurrer to the first cause of action is SUSTAINED without leave to amend.

The second cause of action for promissory estoppel is also in part premised on a promise pursuant to HAMP. (See FAC, ¶¶ 64-66.) For identical reasons already stated, these allegations are without merit. (See Warner v. Wells Fargo Bank, N.A. (C.D.Cal. 2011) 2011 U.S. Dist. LEXIS 66551 *1, *9-*10; see also Kilaita v. Wells Fargo Home Mortgage, et al. (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 142524 *1, *26-*27 (stating that “[t]he nature of HAMP does not provide Plaintiffs with a private right of action”; also stating that “[q]ualified borrowers under HAMP “‘would not be reasonable in relying on the Agreement as manifesting an intention to confer a right on him because the agreement does not require [a loan servicer to] modify eligible loans… [and t]hus, Plaintiffs lack standing to challenge HAMP compliance”); see also Cleveland v. Aurora Loan Servs., LLC (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 55168 (stating that “numerous courts have determined that individual borrowers do not have standing to sue under a HAMP SPA because they are not intended third-party beneficiaries of the SPA… [and] have ruled that there is no express or implied private right of action to sue lenders or loan servicers for violation of HAMP”; also stating that since “the alleged HAMP violations are not actionable, [they] thus cannot be used to support a claim under § 17200”).)

The second cause of action also alleges that Defendants orally promised to not foreclose on the subject property while Plaintiffs’ application for a loan modification was pending. The second cause of action specifically complains about the filing and recording of the notice of default and the conducting of the trustee sale as its basis for the claim. (See FAC, ¶ 60.) Judicially noticeable facts indicate that the notice of default was recorded on March 28, 2011, but the FAC alleges that any promise to not foreclose was made until June 2010. (See FAC, ¶ 28.) There is no possibility that the promise was broken by the filing and recordation of the notice of default. As to the trustee sale, in opposition, Plaintiffs concede that there has not been any trustee sale; rather, Plaintiffs are concerned that the Defendants might conduct a trustee sale. (See Opposition, p.2:8 (stating “Defendant JP MORGAN CHASE BANK is trying to foreclose Plaintiff’s home in bad faith”) (emphasis added).) The FAC also alleges that the loan modification is no longer pending. (See FAC, ¶ 36 (stating that “CHASE informed Plaintiffs that Plaintiffs did not qualify for loan modification and that their loan modification was denied”).) The allegations and judicially noticeable facts indicate Defendants have not broken any promise to not foreclose on the subject property while Plaintiffs’ application for a loan modification was pending. As the allegations of the second cause of action cannot state facts sufficient to constitute a viable cause of action, Defendants’ demurrer to the second cause of action is SUSTAINED without leave to amend.

The third cause of action is for breach of the implied covenant of good faith and fair dealing and alleges that “[t]he terms of the loan modification agreement explicitly and implicitly imposed upon Defendants a duty of good faith and fair dealing in this matter.” (FAC, ¶ 72.) However, for reasons already stated, there is no enforceable oral agreement; thus, there likewise cannot be any a cause of action for breach of the implied covenant of good faith and fair dealing. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350 (stating that “[t]he covenant thus cannot ‘be endowed with an existence independent of its contractual underpinnings’… [i]t cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement”); see also Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1204 (stating that “[t]he implied covenant of good faith and fair dealing does not impose substantive terms and conditions beyond those to which the parties actually agreed”); see also Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1369 (stating that the court properly sustained demurrer to breach of covenant of good faith and fair dealing “when the implied covenant cause of action is essentially based on the same allegations as the breach of contract cause of action”); see also Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094 (stating that “”[t]he implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract”).)

The third cause of action also alleges that Defendants are somehow responsible for acts related to the 2004 loan origination. However, as Defendants argue, judicially noticeable facts indicate that Chase did not assume liability for the origination of loans by WAMU. (See Hilton v. Wash. Mut. Bank (N.D. Cal. Oct. 28, 2009) 2009 U.S. Dist. LEXIS 100441 *1, *8 (stating that “by the terms of the P&A Agreement, JPMorgan Chase expressly disclaimed assumption of liability arising from borrower claims… [t]his section leaves the FDIC as the responsible party with respect to those claims”); see also GECCMC 2005-C1 Plummer St. Office Ltd. Partnership v. JP Morgan Chase Bank, N.A. (9th Cir. 2012) 671 F.3d 1027, 1036 (stating that “recourse is not a suit against Chase under the P&A Agreement… [rather,] that remedy is best sought… against the FDIC”); see also Newbeck v. Wash. Mut. Bank (N.D.Cal. Aug. 13, 2010) 2010 U.S. Dist. LEXIS 92392 *1, *5 (stating that “courts have held that the FDIC, not Chase, is the real party in interest concerning borrowers’ claims arising from loans made or held by Washington Mutual”).) Defendants’ demurrer to the third cause of action is SUSTAINED without leave to amend.

The fourth cause of action for fraud does not allege a misrepresentation. The claim is premised in part on the alleged representation that the home would not be foreclosed upon for the duration of the loan modification application’s pendency. (See FAC, ¶ 83.) However, as previously noted, this was not a misrepresentation: Defendants did not foreclose upon the subject property during the loan modification application’s pendency, and the notice of default was filed prior to the purported misrepresentation. The fourth cause of action also bizarrely alleges that Defendants concealed the fact that their home could not be foreclosed while the loan modification was going on—despite the prior allegation that Defendants affirmatively represented the same to Plaintiffs. (See FAC, ¶ 79; compare with FAC, ¶ 83.) The fourth cause of action also alleges that Defendants stated that the loan modification could not be done unless Plaintiffs stopped making payments on the loan. (See FAC, ¶ 82.) There is no indication that this statement was false. The fourth cause of action also alleges that Defendants told Plaintiffs that they “[we]re almost done with modification.” (FAC, ¶ 88.) In fact, Plaintiffs were almost done with modification: their application was denied just a few months later on January 2, 2013. (See FAC, ¶ 91.) Finally, the fourth cause of action alleges that in December 2012, Chase representative Sally Audet told Plaintiff that their loan modification is under review and Plaintiffs will receive response within two weeks, but did not receive a response until January 2, 2012. (See FAC, ¶ 90.) As a preliminary matter, it is not clear that this representation was false. During this time period, the loan modification was under review, and it is possible that if the representation was made during the latter part of December, the response was timely. Plaintiffs are required to allege facts with specificity, including when the representation was made. (See Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 645 (stating that a fraud claim must minimally “plead[] facts which ‘show how, when, where, to whom, and by what means the representations were tendered’”).) More importantly, Plaintiffs do not allege that, if there was a delay in the response, how they were possibly damaged by such extra time for response. (Id. at p. 638 (stating that resulting damages is an element of a fraud cause of action).) In opposition, Plaintiffs do not address Defendants’ arguments as to how any of the alleged misrepresentations might possibly state facts sufficient to constitute a cause of action if amended. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) The demurrer to the fourth cause of action is SUSTAINED without leave to amend.

The fifth cause of action for intentional misrepresentation is not addressed by Defendants’ memorandum. Accordingly, the demurrer to the fifth cause of action is OVERRULED.

Defendants demur to the sixth cause of action for unfair business practices, asserting that Plaintiffs lack standing and that they do not allege a predicate violation. However, the fifth cause of action for intentional misrepresentation is sufficient to serve as a basis for the sixth cause of action for unfair business practices under the fraudulent prong. The demurrer to the sixth cause of action is also OVERRULED.

Defendants demur to the seventh cause of action for quiet title asserting that Plaintiffs have not alleged tender. Indeed, the California Supreme Court has stated that “[i]t 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.) In opposition, Plaintiffs do not dispute that they cannot tender the full amount of debt owed. Instead, Plaintiffs’ opposition references a Kansas decision, and makes some arguments about possession of the note. However, California courts are not bound to follow Kansas decisions on Kansas real property laws. As to the possession of the note argument, it is without merit. (See Pagtalunan v. Reunion Mortgage Inc. (N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 34811*1, *6., quoting Putkkuri v. Recontrust Co. (S.D. Cal. 2009) 2009 U.S. Dist. LEXIS 32 *1, *5 (stating that “[p]roduction of the original note is not required to proceed with a non-judicial foreclosure”); see also Neal v. Juarez (S.D.Cal. July 23, 2007 No. 06CV0055) 2007 U.S. Dist. LEXIS 98068 *1, *25 (stating that “the allegation that the trustee did not have the original note or had not received it is insufficient to render the foreclosure proceeding invalid”); see also Kennedy v. Lehman Bros. Bank (S.D.Cal. 2010) 2010 U.S. Dist. LEXIS 116415 *1, *10 (stating that “it is well established that a lender need not produce the original note to initiate non-judicial foreclosure proceedings”); see also Nguyen v. Wells Fargo Bank, N.A. (N.D.Cal. 2010) 2010 U.S. Dist. LEXIS 113246 *1, 35-36; see also Castaneda v. Saxon Mortgage Services, Inc. (E.D.Cal. 2009) 687 F. Supp. 2d 1191, 1201 (stating that “[u]nder California law, there is no requirement for the production of the original note to initiate a non-judicial foreclosure”); see also Benham v. Aurora Loan Services (N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 91287 *1, *3, fn.3 (rejecting argument that loan servicer Aurora was a “stranger” or “unrelated third party” to the loan transaction); see also CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC (7th Cir. 2010) 610 F.3d 497, 501 (stating that the servicer has the equitable ownership of a claim, as delegated by the Pooling and Servicing Agreement); see also Greer v. O’Dell (11th Cir. 2002) 305 F.3d 1297, 1302 (stating that “[a] servicer is a party in interest in proceedings involving loans which it services); see also Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D.Cal. 2009) 652 F. Supp. 2d 1039, 1043 (stating that “California law does not require possession of the note as a precondition to non-judicial foreclosure under a deed of trust”).) Defendants’ demurrer to the seventh cause of action is SUSTAINED without leave to amend.

Defendants’ demurrer to the eighth cause of action for set aside sale on the grounds that there has yet to be a trustee sale and that judicially noticeable documents indicate that Defendants were entitled to conduct a trustee sale in any event is unopposed. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, the demurrer to the eighth cause of action is SUSTAINED without leave to amend.

Defendants demur to the ninth cause of action for violation of the Rosenthal Fair Debt Collection Practices Act, asserting that they are not “debt collectors” pursuant to the Act. Indeed, “under the… state Fair Debt Collection Practices Act, a residential mortgage is not a debt.” (Odinma v. Aurora Loan Servs. (N.D.Cal. June 3, 2010) 2010 U.S. Dist. LEXIS 54190 *1, *31-*32; see also Fuentes v. Deutsche Bank (S.D.Cal. July 8, 2009) 2009 U.S. Dist. LEXIS 57931 *1, *8 (stating that “[s]ince a residential mortgage is not a debt and a home foreclosure is not debt collection within the meaning of the statute, the court grants Defendant’s motion for judgment with respect to this claim”); see also Jozinovich v. JP Morgan Chase Bank, N.A. (N.D.Cal. Jan. 14, 2010) 2010 U.S. Dist. LEXIS 3358 *1, *18-*19 (stating that “[t]he activity of foreclosing on a property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA”); see also Ines v. Countrywide Home Loans, Inc. (S.D.Cal. Nov. 3, 2008) 2008 U.S. Dist. LEXIS 88739 *1, *6-*8 (dismissing claim under California Rosenthal FDCPA because “the ‘activity of foreclosing on a property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA”).) Defendants’ demurrer to the ninth cause of action is SUSTAINED without leave to amend.

The tenth cause of action for declaratory relief again alleges that Defendants do not have the right to foreclose “because Defendants do not have possession of the original Promissory Note.” (FAC, ¶ 137.) This assertion is without merit. (See Pagtalunan v. Reunion Mortgage Inc. (N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 34811*1, *6., quoting Putkkuri v. Recontrust Co. (S.D. Cal. 2009) 2009 U.S. Dist. LEXIS 32 *1, *5 (stating that “[p]roduction of the original note is not required to proceed with a non-judicial foreclosure”); see also Neal v. Juarez (S.D.Cal. July 23, 2007 No. 06CV0055) 2007 U.S. Dist. LEXIS 98068 *1, *25 (stating that “the allegation that the trustee did not have the original note or had not received it is insufficient to render the foreclosure proceeding invalid”); see also Kennedy v. Lehman Bros. Bank (S.D.Cal. 2010) 2010 U.S. Dist. LEXIS 116415 *1, *10 (stating that “it is well established that a lender need not produce the original note to initiate non-judicial foreclosure proceedings”); see also Nguyen v. Wells Fargo Bank, N.A. (N.D.Cal. 2010) 2010 U.S. Dist. LEXIS 113246 *1, 35-36; see also Castaneda v. Saxon Mortgage Services, Inc. (E.D.Cal. 2009) 687 F. Supp. 2d 1191, 1201 (stating that “[u]nder California law, there is no requirement for the production of the original note to initiate a non-judicial foreclosure”); see also Benham v. Aurora Loan Services (N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 91287 *1, *3, fn.3 (rejecting argument that loan servicer Aurora was a “stranger” or “unrelated third party” to the loan transaction); see also CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC (7th Cir. 2010) 610 F.3d 497, 501 (stating that the servicer has the equitable ownership of a claim, as delegated by the Pooling and Servicing Agreement); see also Greer v. O’Dell (11th Cir. 2002) 305 F.3d 1297, 1302 (stating that “[a] servicer is a party in interest in proceedings involving loans which it services); see also Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D.Cal. 2009) 652 F. Supp. 2d 1039, 1043 (stating that “California law does not require possession of the note as a precondition to non-judicial foreclosure under a deed of trust”).) Here, it is clear that, as a matter of law, Plaintiffs cannot obtain the declaration that they seek; accordingly, the demurrer to the tenth cause of action is SUSTAINED without leave to amend. (See Code Civ. Proc. § 1060.)

The eleventh cause of action for injunctive relief alleges that the foreclosure proceedings are wrongful because the loan itself is void since it contains unlawful predatory provisions. (See FAC, ¶ 144.) However, as previously stated, to the extent that the cause of action is premised on WAMU’s acts in the origination of the loan, judicially noticeable facts indicate that Chase did not assume liability for the origination of loans by WAMU. (See Hilton v. Wash. Mut. Bank (N.D. Cal. Oct. 28, 2009) 2009 U.S. Dist. LEXIS 100441 *1, *8 (stating that “by the terms of the P&A Agreement, JPMorgan Chase expressly disclaimed assumption of liability arising from borrower claims… [t]his section leaves the FDIC as the responsible party with respect to those claims”); see also GECCMC 2005-C1 Plummer St. Office Ltd. Partnership v. JP Morgan Chase Bank, N.A. (9th Cir. 2012) 671 F.3d 1027, 1036 (stating that “recourse is not a suit against Chase under the P&A Agreement… [rather,] that remedy is best sought… against the FDIC”); see also Newbeck v. Wash. Mut. Bank (N.D.Cal. Aug. 13, 2010) 2010 U.S. Dist. LEXIS 92392 *1, *5 (stating that “courts have held that the FDIC, not Chase, is the real party in interest concerning borrowers’ claims arising from loans made or held by Washington Mutual”).) The eleventh cause of action also again alleges that Defendants cannot be the real party in interest with regards to the foreclosure proceeding or this action because they lack possession of the note. (See FAC, ¶ 145, subds. (a) and (b).) However, as previously articulated, this assertion is wholly without merit. The eleventh cause of action alleges that Defendants failed to follow Civil Code section 2924. (See FAC, ¶ 145, subd. (c)(1).) However, the FAC alleges and judicially noticeable documents indicate that Defendants filed a notice of default, and Plaintiffs do not complain about any deficiency with that notice of default. Finally, the eleventh cause of action alleges that Defendants failed to comply with the fair debt collection practice laws of the State of California in attempting to collect a debt. (See FAC, ¶ 145, subd. (c)(2).) As previously indicated, “under the… state Fair Debt Collection Practices Act, a residential mortgage is not a debt.” In opposition, Plaintiffs do not indicate how they might otherwise assert such a cause of action. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, the demurrer to the eleventh cause of action is SUSTAINED without leave to amend.