2013-00147161-CU-OR
Martin Cuevas vs. Bank Of America
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Wheeler, Benjamin L.

Defendant Bank of America, N.A.’s demurrer to the 1st amended complaint is ruled on
as follows:

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 obtained a $161,000 loan from Countrywide Home Loans, Inc. on February 17,
2006, secured by a deed of trust on real property located at 4056 Farmington Way,
Sacramento. Plaintiff alleges that he was behind on his payments in April of 2013 and
was advised to seek relief by way of a HAMP loan modification. A notice of default
had previously been recorded in September of 2012 and a second notice of default
was recorded on April 2, 2013. (RJN Exs. D and E). Plaintiff alleges that he applied
for a loan modification on April 14, 2013, and in May of 2013 he was told by Bank of
America that they did not need any further documentation. On June 19, 2013 plaintiff
inquired as to the status of his loan modification and, after not being able to reach his
“single point of contact,” Arina Negrette, he was told by “Glenda” that his loan
modification review had been “aborted by the borrower” and that plaintiff’s home was
in “active foreclosure.” (FAC paragraph 15) Plaintiff alleges that defendant continued
with foreclosure by scheduling a Trustee’s Sale for August of 2013. (FAC ¶ 19, 20)
1st cause of action Violation of Civil Code sections 2923.5, 2923.55, 2923.6,
2924.11, and 2924.18. Overruled. A claim is stated for violation of Civil Code 2923.6
and 2924.18 based on plaintiff’s allegations that a notice of sale was issued but not
recorded and a sale of the property was scheduled for August of 2013 after he had
submitted a completed loan application. The Court cannot take judicial notice of
defendant’s argument to the contrary that “there has been no foreclosure activity since
his application was deemed complete by BANA. The Court will not separately address
each statutory violation under this code section if a claim under one or more of the
code sections is stated.

2nd cause of action Violation of Civil Code 2923.7: Overruled. Plaintiff has
sufficiently alleged a violation of this section, which requires, among other things, the bank to provide a single point of contact who is required to ensure that the borrower
has access to current information and personnel sufficient to timely, accurately and
adequately inform the borrower of the current status of the foreclosure prevention
alternative. Although single point of contact means a team of personnel rather than
the one person to whom plaintiff was initially assigned, plaintiff adequately alleges that
the team did not comply with the required communications pursuant to this section.
3rd cause of action Fraud: Sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action.

The elements of a claim for fraud are (I) misrepresentation of a material fact; (2)
knowledge of falsity or lack of a reasonable ground for belief in the truth of the
representation; (3) intent to induce reliance; (4) actual and justifiable reliance by the
plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co.
(1987) 192 Cal.App.3d 684, 693.) It is hornbook law that fraud-based claims are
subject to a stricter pleading standard then that governing most California causes of
action. To advance a cognizable fraud claim, “every element of the cause of action . . .
must be alleged in full, factually and specifically, and the policy of liberal construction
of pleading will not usually be invoked to sustain a fraud claim deficient in any material
respect.” (Wilhelm v. Pray, Price,Williams & Russell (1986) 186 Cal.App.3d 1324,
1331.) The heightened particularity requirement necessitates pleading facts that “show
how, when, where, to whom, and by what means the representations were tendered.” (
Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) When fraud is alleged against a
corporate defendant, the plaintiff must specifically allege the names of the persons
who allegedly made the representation, their authority to speak, to whom they spoke,
what they said or wrote, and when it was said or written. (Tarmann v. State Farm
Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff has alleged that Glenda told him that the loan application was “aborted by the
borrower.” Plaintiff has not alleged the element of detrimental reliance as he does not
state what conduct he undertook to his detriment as a result of this statement.
4th cause of action Negligent Misrepresentation: Sustained with leave to amend for
failure to state facts sufficient to constitute a cause of action. The court rejects BANA’s
argument that no duty is alleged. The duty arises from the statutory requirements
alleged above. However, plaintiff has not alleged detrimental reliance, as the
statement that the loan application was “aborted by the borrower” is not alleged to
have resulted in any conduct to his detriment. Further, fraud and negligent
misrepresentation–itself a species of fraud–must be pled with specificity. All
allegations of fraud must be specific enough to show how, when, where, to whom, and
by what means the representations were tendered. (Alfaro v. Commun. Housing
Improve. Sys. & Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, 1384.) Where the
defendants are corporations, the plaintiff must further identify the names of the
persons who made the representations, their authority to speak, to whom they spoke,
what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff may file and serve a 2nd amended complaint on or before April 14, 2014.
Response to be filed and served within 20 days of the receipt of the amended
complaint, 25 days if served by mail.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by CRC Rule 3.1308 and Local Rule 1.06(D). Defendant’s counsel is ordered
to notify Plaintiff immediately of the tentative ruling system and of the correct
department and time of the hearing and to be available at the
hearing, in person, or by telephone, in the event Plaintiff appears without following the
procedures set forth in Local Rule 1.06(B).