Case Number: KC066556 Hearing Date: April 17, 2014 Dept: O

Quintana v. JP Morgan Chase Bank, N.A., et al. (KC066556)

Defendants JPMorgan Chase Bank, N.A. and California Reconveyance Company’s DEMURRER TO FIRST AMENDED COMPLAINT

Respondent: Plaintiff Quintana

TENTATIVE RULING

Defendants Chase Bank, N.A. and California Reconveyance Company’s demurrer to first amended complaint is OVERRULED as the 1st cause of action, SUSTAINED with 10 days leave to amend as to the 3rd cause of action, and SUSTAINED without leave to amend as to the 4th cause of action.

1st CAUSE OF ACTION: CC 2923.5: … (2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. … (b) A notice of default recorded pursuant to Section 2924 shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of “borrower” pursuant to subdivision (c) of Section 2920.5.

Par. 23 alleges that defendants violated CC 2923.5 by failing to contact Plaintiff.
Par. 15 alleges the declaration by JP Morgan is false.

In his prior Complaint, Plaintiff admits that he applied for and was approved for a loan modification. However, Plaintiff now claims that such was a pleading error, and Plaintiff was not given a “permanent” modification. Defendants contend in Reply that Plaintiff was given a trial modification, but such does not appear on the face of the Complaint or are facts that are judicially noticeable.

Further, although Plaintiff is only entitled to postponement of the sale pursuant to Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 214, the improper prayer for rescission does not invalidate the claim. A general demurrer challenges only the sufficiency of the cause of action pleaded, and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 CA4th 1547, 1561–1562; Grieves v. Sup.Ct. (Fox) (1984) 157 CA3d 159, 164–165; Caliber Bodyworks, Inc. v. Sup.Ct. (Herrera) (2005) 134 CA4th 365, 385.)

The court finds the allegations are sufficient to withstand demurrer. Demurrer is OVERRULED. [PLAINTIFF’S COUNSEL IS REMINDED OF HIS DUTY OF INQUIRY PURSUANT TO CCP 128.7 – FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT. IF THERE WAS INDEED A “TRIAL” MODIFICATION PLAN, PLAINTIFF’S CC 2923.5 ALLEGATIONS WOULD BE A SHAM. IF SUCH IS THE CASE, PLAINTIFF MUST DISMISS THIS CLAIM.]

3rd CAUSE OF ACTION: VIOLATION OF B&P 17200:
The Unfair Business Practices Act shall include “any unlawful, unfair, or fraudulent business act or practice.” (B&P Code 17200.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

Plaintiff has adequately alleged violation of the unlawful prong, i.e. CC 2923.5. However, the complaint is deficient because plaintiff cannot show any injury in fact, including the payment of higher fees. Par. 55 alleges that Plaintiff paid higher fees “due to an invalid” Notice of Default recorded on March of 2011, but does not allege with specificity what was incorrect about the Notice of Default that resulted in the higher fees that he had to pay. Plaintiff admits he defaulted, and therefore, was the cause of the foreclosure proceedings. The only valid claim that Plaintiff has made is that Defendants failed to contact him per CC 2923.5. However, the failure to contact him did not result in lost money or property. Further, a violation of Pen. Code 115 (recording a false document) does not result in lost money or property. Demurrer is SUSTAINED.

4th CAUSE OF ACTION: VIOLATION OF CC 2924.17: Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, a plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)

Plaintiff did not seek prior leave to add this new cause of action. If Plaintiff wishes to add this new cause of action, Plaintiff must file a separate motion requesting such relief, and pay the requisite filing fees.

Demurrer on this ground is SUSTAINED without leave to amend.