Defendant Wells Fargo Bank, N.A. dba America’s Servicing Company (“Wells Fargo”) demurs to the first amended complaint (“FAC”) filed by plaintiff Jayanthi Swaminath (“Plaintiff”) and moves to strike portions contained therein.

This is an action arising out of the foreclosure of a residential property. In August 2006, Plaintiff entered into written loan agreements with Preferred Financial Group, Inc. for $1,657,500 that were secured by a deed of trust on a property located at 17520 Blanchard Dr. in Monte Sereno (the “Property”). (FAC at ¶¶ 1, 12.) In 2010, Plaintiff encountered financial difficulties and as a result, sought a modification of her mortgage. (Id. at ¶ 13.) On August 2010, a Notice of Default and Election to Sell Under Deed of Trust (“NOD”) was recorded.

On December 2, 2010, Plaintiff contacted Wells Fargo to inquire about a modification and was informed that the NOD was recorded in error, that she was approved for a modification through the Home Affordable Modification Program (“HAMP”) and that said modification would begin shortly. (FAC at ¶ 18.) Immediately thereafter, Plaintiff spoke to one of Wells Fargo’s authorized agents who advised her that after she completed a trial modification plan, her loan would be permanently modified. (Id. at ¶ 19.) Plaintiff was further advised that no foreclosure activity would proceed against the Property. (Id.) In reliance on the foregoing representations, Plaintiff submitted a loan modification application to Wells Fargo and forwent other refinancing opportunities that she had been pursuing at that time. (Id. at ¶ 20.)

Thereafter, Plaintiff was repeatedly advised that she was pre-approved for the loan modification and that the permanent modification would come shortly. (FAC at ¶ 21.) In December 2010, Plaintiff was informed that she was approved for a trial loan modification. (Id. at ¶ 25.) Pursuant to the terms of the trial plan agreement, Plaintiff was to make monthly payments of $3,358.33 to Wells Fargo. (Id.) After the completion of three trial plan payments, Wells Fargo would offer Plaintiff a permanent loan modification. (Id.) Plaintiff accepted the foregoing terms and began making monthly payments in January 2011. (Id.) After three payments were made, Plaintiff was advised that she was approved for a permanent loan modification and should continue to make her trial plan payments until the permanent modification arrived. (Id. at ¶ 26.) Plaintiff did so until August 2011. At that time, she experienced an increase in her household income, which she reported to Wells Fargo. (Id. at ¶ 27.) Consequently, Wells Fargo increased the amount of her modified monthly mortgage payment to $3,798.41. (Id.)

Plaintiff made the modified payments from September 2011 to September 2012 until she experienced a decrease in her household income. (FAC at ¶ 28.) After reporting the decrease to Wells Fargo, the modified monthly mortgage payment was decreased from $3,798.41 to $3,500. (Id.) Plaintiff made the modified payment of $3,500 in October 2012. (FAC at ¶ 12.) The following month, on November 13, 2012, a Notice of Trustee’s Sale was recorded on the Property. (Id. at ¶ 30.) Upon contacting Wells Fargo, Plaintiff was informed that the notice was recorded in error, that she had completed the trial plan agreement and that her loan would be permanently modified. (Id. at ¶ 31.) However, purported trustee NDex West, LLC has refused to postpone the trustee’s sale. (Id.) Shortly thereafter, Plaintiff’s October 2012 payment was returned to her.

On January 17, 2014, Plaintiff filed the FAC asserting the following claims: (1) Fraudulent Misrepresentation; (2) Negligent Misrepresentation; and (3) Promissory Estoppel. On February 3, 2014, Wells Fargo filed the instant demurrer to each of the foregoing claims on the ground of failure to state facts sufficient to constitute a cause of action and motion to strike various portions of the FAC. (Code Civ. Proc., §§ 430.10, subd. (e), 435 and 436.)
Wells Fargo’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (h); see also Alfaro v. Committee Housing Imp. System & Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, 1382; Evans v. Cal. Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [stating that “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 a recorded document, and the document’s legally operative language … [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document”].)
Wells Fargo’s demurrer to the first (Fraudulent Misrepresentation) and second (Negligent Misrepresentation) causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. While the Court finds Wells Fargo’s contention that Plaintiff’s claim is barred by the statute of frauds to be without merit because the statute provides a defense only to enforcement of a contract (see generally, 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 342, p. 390), Plaintiff has not pleaded all of the necessary elements of these claims, particularly the element of intent on the part of Wells Fargo. (See Lazar v. Superior Court (1996) 12 Cal.4th 631 [stating elements of a cause of action for fraud]; see also Fox v. Pollack (1986) 181 Cal.App.3d 954, 962 [stating elements of cause of action for negligent misrepresentation].)
Wells Fargo’s demurrer to the third cause of action (Promissory Estoppel) is OVERRULED. Contrary to Wells Fargo’s assertions, Plaintiff has adequately alleged the element of detrimental reliance in pleading that in reliance on Wells Fargo’s representations regarding a permanent loan modification, she forewent alternative refinancing for the Property with other financial institutions that she was in the midst of pursuing at the time the misrepresentations were made. (FAC at ¶¶ 20 and 54.)
Well’s Fargo’s motion to strike is MOOT as to paragraph 44 of the FAC, given the ruling on the demurrer, and otherwise DENIED.