Case Number: VC064061    Hearing Date: September 09, 2014    Dept: SEC

KIM v. AMERICA’S WHOLESALE LENDER CORP.
CASE NO.: VC064061
HEARING: 09/09/14

#11
TENTATIVE ORDER

Defendants COUNTRYWIDE HOME LOANS, INC. (dba America’s Wholesale Lender), THE BANK OF NEW YORK MELLON and BANK OF AMERICA, N.A.’s demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. C.C.P. § 430.10(e), (f).

Defendants’ Request for Judicial Notice is GRANTED. Evid. Code §§ 452, 453.

Plaintiff SEON HEE KIM asserts causes of action for (1) quiet title, (2) wrongful foreclosure and (3) “Code of Civil Procedure §337 and Civil Code §2911(1). As alleged, the pleading fails to state a cause of action.

First, as noted by defendants, the allegations reference “defendants” collectively, without distinguishing among them. Within the body of the complaint, each cause of action is listed only as against defendant The Bank of New York Mellon. It is thus unclear what wrongdoing is alleged against each party. The demurrer is sustained on that ground.

In September 2005, plaintiff entered into a promissory note for $628,000 secured by a Deed of Trust on certain property in Cerritos, California. RJN, Exh. A; Comp., p. 10, ¶3. In support of each of her claims, plaintiff contends that none of the defendants hold a valid Deed of Trust to the property. Comp., p. 10, ¶¶4, 5. The factual basis for plaintiff’s contention is wholly unclear.

Generally, a borrower lacks standing to challenge an assignment of the lender’s beneficial interest in the property. Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-15. Even where the facts support an invalid transfer, borrowers must allege and show prejudice. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272; see also Herrera v. Fed. Nat’l Mort. Ass’n (2012) 205 Cal.App.4th 1495, 1508.

Plaintiff has not set forth the underlying facts pertaining to the default, notices sent by the borrowers or the subsequent foreclosure sale. Without those allegations, the Court cannot properly evaluate whether plaintiff can state a viable cause of action. Leave to amend is granted. In amending the pleading, plaintiff should be mindful of the other arguments presented in the subject demurrer.

Plaintiff did not file opposition.