2011-00104315-CU-OR

Lilia Kryvoshey vs. American Brokers Conduit

Nature of Proceeding: Hearing on Demurrer

Filed By: Kunnes, Edward A.

Defendant Default Resolution Network’s Demurrer to the First Amended Complaint is
unopposed, taken as a concession to the merits, and is sustained without leave to
amend for failure to state facts sufficient to constitute a cause of action.

Defendants’ request for judicial notice is granted. (See Poseidon Devel., Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also
Stratford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land
documents, not contracts, are the subject of judicial notice on demurrer].) The court,
however, does not accept the truth of any facts within the judicially noticed documents
except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel.,
152 Cal.App.4th at 1117-18.) see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal.App.4th 256, 265 (“[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 the recorded document, and the document’s legally operative
language, assuming there is no genuine dispute regarding the document’s
authenticity.”)

Plaintiff alleges claims arising out of a default on her mortgage loan. The case was
removed to federal court and remanded to state court in November 2011. The
foreclosure sale occurred May 16, 2012. Plaintiff filed a notice of entry of the District
Court’s order on January 22, 2014.

1st cause of action Wrongful Foreclosure, 5th cause of action Negligence, 6th
cause of action Fraud, 7th cause of action Violation of Business & Professions
Code section 17200, 8th cause of action Breach of Fiduciary Duty, 9th cause of
action Declaratory Relief and 10th cause of action Set Aside and Void Note and
Deed of Trust as Unconscionable:

Sustained without leave to amend for failure to state facts sufficient to constitute a
cause of action. From matters judicially noticed and from the allegations of the First
Amended Complaint, moving party’s role in the foreclosure process was merely to
issue two notices of default. (FAC ¶¶ 9-20, Ex. 1, 5) No facts have been alleged to
state a cause of action against moving party on any of plaintiff’s theories. Plaintiff has
not alleged any facts to show that Default Resolution had any duty to her, that it
entered any agreement with her, or that it violated statute.

Plaintiff may not challenge the notice of default based on an alleged improper transfer
of the promissory note during the securitization process. However, even if the asserted
improper securitization (or any other invalid assignments or transfers of the promissory
note subsequent to the execution of the note) occurred, the relevant parties to such a
transaction were the holders (transferors) of the promissory note and the third party
acquirers (transferees) of the note… As an unrelated third party to the alleged
securitization, and any other subsequent transfers of the beneficial interest under the
promissory note, plaintiff lacks standing to enforce any agreements, including the
investment trust’s pooling and servicing agreement, relating to such transactions. (See
In re Correia (Bankr. 1st Cir. 2011) 452 B.R. 319, 324-325 [debtors lacked standing to
raise violations of pooling and service agreement]. Jenkins v JP Morgan Chase Bank
N.A. (2013) 216 Cal.App.4th 497, 515.

The absence of an opposition is deemed a concession to the merits.

The motion to strike claim for punitive damages and for damages other than restitution
for the B&P 17200 claim is unopposed, taken as a concession to the merits, and is
granted.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.