1. Demurrer by Defendant Nationstar Mortgage, LLC to Complaint:

The demurrer is sustained with 21 days leave to amend.

(a) Uncertainty:

The Complaint as pled is uncertain and ambiguous with respect to the allegations against Nationstar. There are no allegations as to what Nationstar is alleged to have done and how any such facts support the causes pled.

With the exception of paragraphs 2, 99 and 108, Plaintiff makes no factual allegations as against Nationstar.

None of the six causes are properly pled with respect to Nationstar. As such, the demurrer is sustained with leave to allow the Plaintiff to make allegations as to Nationstar if she is capable of doing so.

(b) First Cause of action:

The first cause of action for Violation of CC §2923.6 fails to allege a cause of action because she does not allege a violation of the statute. The statute provides that if a borrower submits a complete application for loan modification, a notice of default or notice of sale cannot be recorded while the loan modification is pending. The Plaintiff has not alleged a pending loan modification. The Plaintiff alleges that she is ready to execute a loan modification. [Complaint at ¶ 57 and 58.] Such allegations are insufficient to allege a violation of CC § 2923.6.

(c) Second Cause of action:

The Plaintiff does not plead facts which amount to unlawful, unfair, or fraudulent conduct by the Defendant. The Plaintiff has not alleged injury in fact. The allegations regarding what the Defendant did in violation of Bus & Prof 17200 or how such caused injury to the Plaintiff is not clear from the complaint.

(d) Third Cause of action:

The third cause of action for breach of the covenant and good faith and fair dealing fails to state sufficient facts to constitute a cause of action. Case law makes it clear that the borrower cannot state a tort claim against a lender for breach of the covenant of good faith and fair dealing. [See Bionghi v. Metropolitan Water Dist. (1999) 70 Cal.App.4th 1358, 1370.] With respect to a contract claim for breach of the covenant of good faith and fair dealing, the scope of the covenant of good faith is defined by the terms of the contract between the parties. [See Carma Developers Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.] It is not clear from the Complaint what contract allegedly exists between Nationstar and the Plaintiff. To the extent that the deed of trust represents the contract between the parties, it expressly permits the beneficiary or trustee to commence non-judicial foreclosure upon the borrower’s default. [RJN, Ex. A]

According to the Complaint, the Plaintiff seems to allege that she has defaulted on the loan agreement. She alleges that she “became in default on her loan.” Complaint ¶ 14. It seems most likely from the common reading of the pleading that the Plaintiff intends to plead that she is in default. As such, pursuant to the terms of the Deed of Trust, the foreclosure by the Defendant does not in any way frustrate the obligations between the parties. As such, the Plaintiff has not alleged facts which constitute a contract claim for breach of the covenant of good faith and fair dealing.

(e) Fourth Cause of action:

The fourth cause for Injunctive Relief is a remedy not a cause of action. [See McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.] The Plaintiff does not allege facts which tether the request for an injunction to a valid claim for relief. Leave is only given to request an injunction in the prayer if it can be tethered to some cause of action justifying such relief.

(f) Fifth and Sixth Causes of action:

The fifth and sixth causes of action for statutory and common law fraud fail to allege sufficient facts to constitute their respective causes of action as neither allege the elements of fraud with required specificity. Pleading of fraud against a corporation requires that the Plaintiff allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said and when they said it. [See Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.] The Plaintiff alleges in the most general language possible that the Defendants somehow provided inaccurate information to the Plaintiff or failed to provide documents to the Plaintiff. [Complaint at ¶¶89 and 96] The allegations made are not sufficient to support either fraud cause of action against the Defendants.

Nationstar shall give Notice.

2. Motion by Nationstar to Strike:

The motion to strike is moot in light of ruling on demurrer.

Moving Party Nationstar shall give Notice

3. Demurrer by Defendant Bank of America to Complaint:

The unopposed demurrer by Bank of America and MERS to the first, third, fifth and sixth causes is sustained with 21 days leave to amend. The demurrer is sustained without leave to amend as to the 4th cause of action for injunction which is a remedy not a cause of action.

(a)The Request for Judicial Notice

The Defendants’ request for judicial notice of Exhibits A – E is GRANTED.

“[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, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, “While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein . . . . ‘When judicial notice is taken of a document … the truthfulness and proper interpretation of the document are disputable.’” Herrera v. Deutsche Bank Nat. Trust Co. (2011)196 Cal.App.4th 1366, 1375.

(b) The Complaint Fails to State a Cause of Action:

Tender:

The Plaintiff’s allegations regarding tender are confusing. It is possible that the Plaintiff is alleging that she attempted to tender the amount of the lender’s secured indebtedness but that the Defendants refused to accept the tender or imposed conditions that made tender not possible or feasible but it is not clear that such is what is being alleged because of the confusing manner in which it is alleged. [Complaint 59-62]. Therefore, the Plaintiff has not alleged facts which establishes that she has standing to challenge the foreclosure because she has not alleged tender or a willingness to tender the full amount owed on the indebtedness. [See Abdallah v. United Saving Bank (1996) 43 Cal.App.4th 1101, 1109.]

(c) MERS:

The Plaintiff alleges that MERS lacked authority to transfer the interest in the loan and therefore, the security interest represented by the trust was never perfected. [Complaint at ¶¶ 14 & 28] Numerous courts including the court in Fontenot v Wells Fargo have made it clear that this argument lacks merit. [See Fontenot v. Wells Fargo (2011) 198 Cal.App.4thj 256, 265-266.]

(d) First Cause of action:

The first cause of action for Violation of CC §2923.6 fails to allege a cause of action because Plaintiff does not allege a violation of the statute. The statute provides that if a borrower submits a complete application for loan modification, a notice of default or notice of sale cannot be recorded while the loan modification is pending. The Plaintiff has not alleged a pending loan modification. The Plaintiff alleges that she is ready to execute a loan modification. [Complaint at ¶ 57 and 58] Such allegations are insufficient to allege a violation of CC § 2923.6.

(e) Third Cause of action:

The third cause of action for breach of the covenant and good faith and fair dealing fails to state sufficient facts to constitute a cause of action. Case law makes it clear that the borrower cannot state a tort claim against a lender for breach of the covenant of good faith and fair dealing. [See Bionghi v. Metropolitan Water Dist. (1999) 70 Cal.App.4th 1358, 1370.] With respect to a contract claim for breach of the covenant of good faith and fair dealing, the scope of the covenant of good faith is defined by the terms of the contract between the parties. [See Carma Developers Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.] The terms of the contract, as indicated by the Deed of Trust, expressly permits the beneficiary or trustee to commence non-judicial foreclosure upon the borrower’s default. [RJN, Ex. A.] According to the Complaint, the Plaintiff alleges that she has defaulted on the loan agreement. She alleges that she “became in default on her loan.” Complaint ¶ 14. It seems most likely from the common reading of the pleading that the Plaintiff intends to plead that she is in default. Pursuant to the terms of the Deed of Trust, the foreclosure by the Defendant does not in any way frustrate the obligations between the parties. As such, the Plaintiff has not alleged facts which constitute a contract claim for breach of the covenant of good faith and fair dealing.

(e) Fourth Cause of action:

The fourth cause for Injunctive Relief is a remedy not a cause of action. [See McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.] The Plaintiff does not allege facts which tether the request for an injunction to a valid claim for relief. The Plaintiff alleges that she defaulted on her loan and that she signed the deed of trust. [Complaint ¶¶ 10 and 14] There is nothing alleged in the complaint which supports a finding that the current beneficiary of the loan and the current loan servicer would not have the right and power to foreclose on the property pursuant to the terms of the Deed of Trust. Furthermore, there is nothing alleged in the Complaint which supports the Plaintiff’s right to challenge the foreclosing entity’s right to initiate foreclosure. Such argument was rejected by the court in Gomez v. Countrywide. [See Gomez v. Countrywide (2011) 192 Cal.App.4th 1149, 1154.] Sustained without leave to amend.

(f) Fifth and Sixth Causes of action:

The fifth and sixth causes of action for statutory and common law fraud fail to allege sufficient facts to constitute their respective causes of action as neither allege the elements of fraud with required specificity. Pleading of fraud against a corporation requires that the Plaintiff allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said and when they said it. [See Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.] The Plaintiff alleges in the most general language possible that the Defendants somehow provided inaccurate information to the Plaintiff or failed to provide documents to the Plaintiff. [Complaint at ¶¶89 and 96] The allegations made are not sufficient to support either fraud cause of action against the Defendants.

Moving Party Bank of America shall give Notice.