Case Number: VC063796    Hearing Date: July 08, 2014    Dept: SEC

DYE v. SETERUS, INC.
CASE NO.: VC063796
HEARING: 04/29/14

#4
TENTATIVE ORDER

Defendants SETERUS, INC., MERS, INC. and THE RYAN FIRM’s demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
C.C.P. § 430.10(e), (f). The motion to strike certain requests for relief is DEEMED MOOT. C.C.P. §§ 435, 436.

On April 29, 2014, this Court sustained with leave to amend defendants Seterus, Inc. and MERS, Inc.’s demurrer to the complaint. Plaintiff PENNY DYE, acting in pro per, filed a First Amended Complaint asserting several causes of action arising out of the alleged wrongful foreclosure of her home.

One of the changes made is plaintiff’s addition of defendants’ counsel, The Ryan Firm, as a defendant. The only allegations against it are that (1) it “participated in covering up the sale of my property” because the Firm would not talk to plaintiff regarding the sale and (2) it received “undisclosed profits” from the sale of the property. FAC, ¶¶11, 57. Neither of those allegations support a claim of wrongdoing, as the Firm was acting as legal counsel for the co-defendants.

With respect to the substantive allegations against the other defendants, plaintiff failed to cure the deficiencies in the pleading previously noted by the Court. She again failed to attach any of the relevant underlying documents (of which this Court takes judicial notice, pursuant to defendants’ request).

Plaintiff alleges that she and her husband obtained a loan in April 2006. She claims they did not receive “loan disclosures” and that they were not informed of the written terms. FAC, ¶9. After plaintiff defaulted, defendants recorded a Notice of Trustee Sale on June 25, 2013. ¶14. The sale was postponed several times. Plaintiff alleges that the various recordations were done in violation of the automatic stay in place by virtue of her filing a Chapter 7 bankruptcy action. Id. The foreclosure sale took place on May 6, 2014.

Plaintiff’s claim based on violation of the stay is flawed. The foreclosure proceedings were initiated in 2013, prior to plaintiff’s January 6, 2014 filing her bankruptcy petition. RJN, Exh. 5-7. It appears that the bankruptcy was discharged on April 28, 2014 (although plaintiff did not so allege, and defendants did not submit the dismissal with their judicial notice documents). The foreclosure sale took place after that date.

Even if the Court cannot consider the discharge, as it noted in its previous order, any claim plaintiff may have against the defendants became the property of the estate once she filed bankruptcy. See Runaj v. Wells Fargo Bank (S.D. Cal. 2009) 667 F. Supp.2d 1199. Plaintiff does not have standing to assert the causes of action alleged. Plaintiff failed to cure that defect in her amended pleading.

The FAC is also defective insofar as plaintiff’s claims are not supported by sufficient facts. Although she alleges the loan was unconscionable, she did not explain why. See FAC, ¶23. She also failed to allege the circumstances surrounding her alleged “inducement” into signing the contract. The allegations consist of conclusions, rather than facts.

Without a good faith allegation of the ability to tender, plaintiff cannot maintain causes of action to set aside the foreclosure sale or to quiet title. See e.g. Nguyen v. Calhoun (2003) 105 Cal.App.4th 428.

For the reasons set forth above, the demurrer is sustained in its entirety. Plaintiff did not file opposition to the demurrer, so has not met her burden of establishing either an ability or a desire to amend the pleading. Accordingly, the demurrer is sustained without leave and the motion to strike deemed moot.