Case Number: KC069436 Hearing Date: February 21, 2018 Dept: J

Re: Archie Burdette v. Mortgage Electronic Registration Systems, Inc., et al. (KC069436)

MOTION FOR JUDGMENT ON THE PLEADINGS

Moving Parties: Defendants Mortgage Electronic Registration Systems, Inc., The Bank of New York Mellon fka The Bank of New York, as Trustee for First Horizon Mortgage Pass-Through Trust 2004-7 [1]and Nationstar Mortgage LLC

Respondent: No timely opposition filed (due 2/6/18)

POS: Moving OK

This is a wrongful foreclosure action involving plaintiff’s residential property located at 5512 Ridgeview Drive in La Verne. The complaint, filed 7/5/17, asserts causes of action for:

Violation of the Homeowners Bill of Rights
Intentional Misrepresentation
Injunctive Relief
Violation of California Penal Code § 115
Violation of UCC 8-302 Non-Bona Fide Purchaser

On 8/7/17, Defendant Quality Loan Service Corporation filed its “Declaration of Nonmonetary Status.” A Case Management Conference is set for 2/21/18.

Defendants Mortgage Electronic Registration Systems, Inc. (“MERS”), The Bank of New York Mellon (“BONY”) fka The Bank of New York, as Trustee for First Horizon Mortgage Pass-Through Trust 2004-7 and Nationstar Mortgage LLC (“Nationstar”) (collectively, “defendants”) move for judgment on the pleadings on Plaintiff Archie Burdette’s (“plaintiff”) complaint, on the basis that it does not state facts sufficient to constitute a cause of action.

REQUEST FOR JUDICIAL NOTICE:

At the outset, defendants’ request for judicial notice (“RJN”) is ruled on as follows: GRANT as to Exhibit “1” (i.e., “Deed of Trust” recorded 10/19/04); GRANT as to Exhibit “2” (i.e., “Assignment of Deed of Trust” recorded 6/1/10); GRANT as to Exhibit “3” (i.e., “Substitution of Trustee” recorded 12/9/10); GRANT as to Exhibit “4” (i.e., “Notice of Default and Election to Sell Under Deed of Trust” recorded 5/28/10); GRANT as to Exhibit “5” (i.e., “Notice of Trustee’s Sale” recorded 12/9/10); GRANT as to Exhibit “6” (i.e., Chapter 7 bankruptcy docket report for Case No. 2:10-bk-61572-ER [“Chapter 7 BK Action”]); GRANT as to Exhibit “7” (i.e., Chapter 7 Voluntary Petition filed 12/2/10 in the Chapter 7 BK Action); GRANT as to Exhibit “8” (i.e., summary of schedules filed 12/16/10 in the Chapter 7 BK Action); GRANT as to Exhibit “9” (i.e., “Notice of Chapter 7 Case Closed Without Discharge” filed 12/10/11 in the Chapter 7 BK Action); GRANT as to Exhibit “10” (i.e., “Notice of Trustee’s Sale” recorded 12/1/11); GRANT as to Exhibit “11” (i.e., “Notice of Trustee’s Sale” recorded 1/4/12); GRANT as to Exhibit “12” (i.e., Quitclaim Deed recorded 1/10/12); GRANT as to Exhibit “13” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-21187-WB [“First Chapter 13 BK Action”]); GRANT as to Exhibit “14” (i.e., Chapter 13 Voluntary Petition filed 3/29/12 in the First Chapter 13 BK Action); GRANT as to Exhibit “15” (i.e., “Order and Notice of Dismissal for Failure to File Schedules, Statements and/or Plan” filed 4/19/12 in the First Chapter 13 BK Action); GRANT as to Exhibit “16” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-25363-NB [“Second Chapter 13 BK Action”]); GRANT as to Exhibit “17” (i.e., Chapter 13 Voluntary Petition filed 5/1/12 in the Second Chapter 13 BK Action); GRANT as to Exhibit “18” (i.e., summary of schedules filed 5/15/12 in the Second Chapter 13 BK Action); GRANT as to Exhibit “19” (i.e., “Order and Notice of Dismissal Arising from Chapter 13 Confirmation Hearing” filed 7/26/12); GRANT as to Exhibit “20” (i.e., Case Summary for case styled Burdette v. First Horizon Home Loan Corporation, Case No. KC063945); GRANT as to Exhibit “21” (i.e., docket of the U.S. District Court for the Central District of California, Case No. 2:12-cv-05907-DMG-JCG); GRANT as to Exhibit “22” (i.e., “Notice of Removal of Action to Federal Court” filed 7/10/12 in Case No. 2:12-cv-05907-DMG-JCG); GRANT as to Exhibit “23” (i.e., “Order Granting Defendants’ Motion to Dismiss…” filed 10/11/12 in Case No. 2:12-cv-05907-DMG-JCG); GRANT as to Exhibit “24” (i.e., Order filed 8/9/13 by the Ninth Circuit Court of Appeals); GRANT as to Exhibit “25” (i.e., “Trust Transfer Grant Deed” recorded 8/1/12); GRANT as to Exhibit “26” (i.e.,

Chapter 13 bankruptcy docket report for Case No. 2:12-bk-36151-VZ filed by Anthony Pinedo [“Pinedo Chapter 13 BK Action”]); GRANT as to Exhibit “27” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-36163-WB filed by Jenny Ngo [“Ngo”] [“Ngo First Chapter 13 BK Action”]); GRANT as to Exhibit “28” (i.e., “Trust Transfer Grant Deed” recorded 9/5/12); GRANT as to Exhibit “29” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-40107-WB filed by Young Ja Kim [“Kim Chapter 13 BK Action”]); GRANT as to Exhibit “30” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-40128-VZ filed by Elaine Rodriguez [“Rodriguez Chapter 13 BK Action”]); GRANT as to Exhibit “31” (i.e., “Trust Transfer Grant Deed” recorded 10/2/12); GRANT as to Exhibit “32” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-43171-VZ filed by Gerardo Huerta [“Huerta Chapter 13 BK Action”]); GRANT as to Exhibit “33” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-43158-NB filed by Jesse Oseguera [“Oseguera Chapter 13 BK Action”]); GRANT as to Exhibit “34” (i.e., “Grant Deed” recorded 10/31/12); GRANT as to Exhibit “35” (i.e., “Assignment of Deed of Trust” recorded 1/29/13); GRANT as to Exhibit “36” (i.e., “Trust Transfer Grant Deed” recorded 12/21/12); GRANT as to Exhibit “37” (i.e., Chapter 7 bankruptcy docket report for Case No. 2:12-bk-28890-RN filed by Rene Solis [“Solis Chapter 7 BK Action”]); GRANT as to Exhibit “38” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:12-bk-51403-NB filed by Henry L. Larios [“Larios Chapter 13 BK Action”]); GRANT as to Exhibit “39” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:13-bk-202453-WB filed by Ngo [“Ngo Second Chapter 13 BK Action”]); GRANT as to Exhibit “40” (i.e., Chapter 13 bankruptcy docket report for Case No. 2:13-bk-29610-BB filed by Ngo [“Ngo Third Chapter 13 BK Action”]); GRANT as to Exhibit “41” (i.e., “Grant Deed” recorded 10/25/13); GRANT as to Exhibit “42” (i.e., “Corporate Assignment of Deed of Trust” recorded 5/22/14); GRANT as to Exhibit “43” (i.e., “Substitution of Trustee” recorded 7/12/16); GRANT as to Exhibit “44” (i.e., “Notice of Default and Election to Sell Under Deed of Trust” recorded 8/2/16); GRANT as to Exhibit “45” (i.e., “Notice of Trustee’s Sale” recorded 11/7/16); GRANT as to Exhibit “46” (i.e., “Grant Deed” recorded 12/14/16); GRANT as to Exhibit “47” (i.e., Chapter 7 bankruptcy docket report for Case No. 2:16-bk-26244-RK filed by Porshae Johnson (“Johnson”) [“Johnson Chapter 7 BK Action”]); GRANT as to Exhibit “48” (i.e., Chapter 7 Voluntary Petition filed 12/12/16 in the Johnson Chapter 7 BK Action); GRANT as to Exhibit “49” (i.e., “Order Granting Motion for Relief from the Automatic Stay” filed 5/2/17 in the Johnson Chapter 7 BK Action); GRANT as to Exhibit “50” (i.e., Chapter 13 bankruptcy docket report for Case No. 22:17-bk-17849-VZ [“Third Chapter 13 BK Action”]); GRANT as to Exhibit “51” (i.e., Chapter 13 Voluntary Petition filed 6/28/17 in the Third Chapter 13 BK Action) and GRANT as to Exhibit “52” (i.e., “Trustee’s Deed Upon Sale” recorded 7/10/17).

The judicially noticeable documents reflect as follows: On 10/1/04, a deed of trust was recorded on the subject property, which identified First Horizon Home Loan Corporation (“First Horizon”) as the lender, Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary and plaintiff as the borrower. (RJN, Exhibit “1”). Plaintiff defaulted on the terms of the deed of trust in or about February 2010. (Id., Exhibit “4”). On 6/1/10, an “Assignment of Deed of Trust” was recorded, wherein MERS granted, assigned, and transferred its interest in the deed of trust to BONY. (Id., Exhibit “2”). On 5/19/10, BONY substituted UTLS Default Services, LLC as trustee under the deed of trust. (Id., Exhibit “3”). On 5/28/10, a “Notice of Default and Election to Sell Under Deed of Trust” was recorded. (Id., Exhibit “4”). On 12/9/10, a “Notice of Trustee’s Sale” was recorded. (Id., Exhibit “5”).

On 12/2/10, plaintiff filed for Chapter 7 bankruptcy. (Id., Exhibits “6” & “7”). The bankruptcy made no mention of any claims against any of the defendants. (Id., Exhibits “7” & “8”). The bankruptcy was dismissed on 12/10/11 without entry of discharge because plaintiff failed to file Official Form 23, i.e., the “Debtor’s Certification of Completion of Instructional Course Concerning Personal Financial Management.” (Id., Exhibit “9”). On 12/1/11, another “Notice of Trustee’s Sale” was recorded, setting a sale date of 12/23/11. (Id., Exhibit “10”). On 1/4/12, another “Notice of Trustee Sale” was recorded, setting a sale date of 2/2/12. (Id., Exhibit “11”). On 1/10/12, a Quitclaim Deed was recorded, wherein plaintiff transferred his interest in the property to “The Archie W. Burdette Revocable Living Trust” dated 12/27/11 (“Burdette Trust”). (Id., Exhibit “12”).

On 3/29/12, plaintiff filed for Chapter 13 bankruptcy. (Id., Exhibits “13” & “14”). The petition made no mention of any claims against any of the defendants. (Id., Exhibit “14”). The bankruptcy case was subsequently dismissed on 4/19/12. (Id., Exhibit “15”). On 5/1/12, plaintiff filed another Chapter 13 bankruptcy, without mention of any claims against defendants. (Id., Exhibits “16”-“18”). The bankruptcy case was dismissed on 9/26/12. (Id., Exhibit “19”).

On 5/30/12, plaintiff filed a complaint against First Horizon Mortgage Pass-Through Trust 2004-7, First Horizon Asset Securities, Inc. (“FHASI”), MERS, Bank of New York Mellon, N.A. fka The Bank of New York, Nationstar and others for wrongful foreclosure, fraud, quiet title, declaratory relief, violation of the Real Estate and Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq. and the Federal Reserve Acts, 24 CF.R. § 3500, et seq. in Los Angeles Superior Court, Case No. KC063945 (THE “2012 Lawsuit”). (Id., Exhibits “20 & “22”). On 10/22/12, the 2012 Lawsuit was removed to the United States District Court, Case No. 2:12-cv-05907-DMG-JCG. (Id., Exhibits “21” & “22”). On 10/11/12, the District Court entered an order granting, without leave to amend, a motion to dismiss the complaint filed by MERS, Nationstar, FHASI Bank of New York Mellon, N.A. fka The Bank of New York, as Trustee for the Holders of Certificate Series FH04-07 and other defendants and denying plaintiff’s ex parte application for a temporary restraining order. (Id., Exhibit “23”). On 12/12/12, plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeal as to the dismissal order. (Id., Exhibit “21”). On 8/9/13, the Ninth Circuit entered an order dismissing plaintiff’s appeal for failure to file the opening brief. (Id., Exhibit “24”).

From August 2012 to October 2013, plaintiff transferred interests in the property multiple times from the Burdette Trust to multiple different individuals as purported co-trustees. (Id., Exhibits “25”-“34” and “36”-“41”). Either on the day of the transfer, or shortly before or after, the transferees would file for bankruptcy protection. On 10/25/13, plaintiff transferred full interest in the property from the Burdette Trust back to himself. (Id., Exhibit “41”).

On 7/12/16, a “Substitution of Trustee” was recorded, wherein Quality Loan Service Corporation (“Quality”) was substituted in as trustee. (Id., Exhibit “43”). On 8/2/16, a “Notice of Default and Election to Sell Under Deed of Trust” was recorded. (Id., Exhibit “44”). On 11/7/16, a “Notice of Trustee’s Sale” was recorded, setting a sale date of 12/14/16. (Id., Exhibit “45”). On 12/14/16, plaintiff caused to have recorded a grant deed, whereby he purported to transfer an interest in the property to himself and Johnson, a single woman, as joint tenants as a gift. (Id., Exhibit “46”). On 12/12/16, Johnson filed for Chapter 7 bankruptcy, which was terminated on 5/30/17. (Id., Exhibits “47” & “48”). On 4/27/17, the bankruptcy court granted BONY’s motion for relief from the automatic stay related to the property. (Id., Exhibit “49”). The order was recorded on 5/2/17. (Id.). On 6/28/17, plaintiff again filed for voluntary bankruptcy protection. (Id., Exhibits “50” & “51”). On 7/17/17, the bankruptcy court dismissed the action for plaintiff’s failure to file the necessary documents. (Id., Exhibit “50”).

The trustee’s sale of the property occurred on 6/28/17. (Id., Exhibit “52”). On 7/10/17, a “Trustee’s Deed Upon Sale” was recorded. (Id.).

At the outset, defendants argue that plaintiff’s action is barred by the doctrine of res judicata because he is attempting to relitigate the same primary rights against the same parties as were at issue in his 2012 Lawsuit. Not so.

“The doctrine of res judicata has a double aspect. First, it precludes parties or their privies from relitigating the same cause of action that has been finally determined by a court of competent jurisdiction. Second, although a second suit between the same parties on a different cause of action is not precluded by a prior judgment, the first judgment operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. (Safeco Insurance Co. v. Tholen [(1981)] 117 Cal.App.3d [685,] at p. 696; 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, §§ 243, 249, 253; see also, Commissioner v. Sunnen (1948) 333 U.S. 591, 597-598). This second aspect of res judicata is commonly referred to as collateral estoppel. (117 Cal.App.3d at p. 697; 7 Witkin, Cal. Procedure, supra, § 253.).” Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.

“’The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]’ (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556).” People v. Barragan (2004) 32 Cal.4th 236, 253. “A judgment is on the merits for purposes of res judicata ‘if the substance of the claim is tried and determined…’” Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.

“[T]he prior final judgment on the merits not only settles issues that were not actually litigated but also every issue that might have been raised and litigated in the first action.” Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 446 (citation omitted). “If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged…. ‘… [A]n issue may not be thus split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result….’”’ (Interinsurance Exchange of the Auto. Club v. Superior Court (1989) 209 Cal.App.3d 177, 181-182, citations & italics omitted.).” Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 576.

Plaintiff’s 2012 Lawsuit against defendants for wrongful foreclosure, fraud, quiet title, declaratory relief, and violation of the federal regulations was to prevent foreclosure by alleging that the deed of trust and subsequent assignments were void. (RJN, Exhibit “22”). The 2012 Lawsuit was removed to the U.S. District Court where defendants’ motion to dismiss was successful. (Id., Exhibits “20”-“23”). Defendants’ motion to dismiss was granted on the basis that “[p]laintiff lacks standing to prosecute this action insofar as his claims are based on pre-December 2, 2010 actions by Defendants and that he is otherwise judicially estopped from asserting the claims.” (RJN, Exhibit “23”). A determination regarding standing, however, is not an adjudication on the merits. See Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592 (“[a] ‘lack of standing is a jurisdictional defect. ‘[A] dismissal for lack of jurisdiction does not involve the merits and cannot constitute a favorable termination;’” citations omitted). Likewise, a determination regarding judicial estoppel is not an adjudication on the merits.

Defendants next contend that plaintiff’s claims are barred by the doctrine of judicial estoppel, on the basis that plaintiff did not disclose any of the current claims in any of his bankruptcy proceedings in 2010, 2012, 2013 or 2017. “’”Judicial estoppel sometimes referred to as the doctrine of preclusion of inconsistent positions, prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding…’”…It is an “’extraordinary remed[y] to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.’”’ (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 490-491).” Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131. “In California, courts consider five factors in determining whether to apply judicial estoppel: ‘The doctrine [most appropriately] applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.”’ (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987, quoting Jackson [v. County of Los Angeles (1997)] 60 Cal.App.4th [171,] at p. 183; accord, MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422).” Id. at 131. “Judicial estoppel is an equitable doctrine and its application by the court is discretionary.” Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.

“The meaning of ‘acceptance’ in the bankruptcy context is construed broadly to ‘protect[ ] the integrity of the bankruptcy process.’ Id. at 785. Among other possibilities, the grant of a discharge (even if later revoked) or the confirmation of a plan may constitute sufficient ‘acceptance’ of the accuracy of schedules so as to permit judicial estoppel.” In re An-Tze Cheng (9th Cir. BAP2004) 308 B.R. 448, 453. Here, plaintiff’s Chapter 7 bankruptcy filed 12/2/10 was closed without discharge for his failure to file a Financial Management Course Certificate. (RJN, Exhibits “6” & “9”). Plaintiff’s Chapter 13 bankruptcy filed 3/29/12 was dismissed on 4/19/12 for plaintiff’s failure to file schedules, statements, and/or plan. (Id., Exhibits “13” & “15”). Plaintiff’s Chapter 13 bankruptcy filed 5/1/12 was dismissed on 10/26/12. (Id., Exhibit “16”). Plaintiff’s Chapter 13 bankruptcy filed 6/28/17 was dismissed on 7/17/17 for plaintiff’s failure to file schedules, statements and/or plan. (Id., Exhibit “50”). It does not appear, then, that defendants have established the third element of judicial estoppel.

With that said, plaintiff’s causes of action fail for the following reasons:

FIRST CAUSE OF ACTION (i.e., VIOLATION OF HOMEOWNERS BILL OF RIGHTS):

Plaintiff’s first cause of action appears to be based on the prohibition of dual tracking in the loan modification application review process as outlined in Civil Code §§ 2924.11 (formerly section 2923.6) and 2924.12. Plaintiff, however, does not provide any facts to support his claim. Moreover, MERS is not a foreclosing party and had, in fact, assigned the deed of trust long before the notice of default was recorded. (RJN, Exhibits “2” & “35”).

The statute upon which plaintiff relies only prohibits the recording of foreclosure notices or conducting a trustee’s sale after a complete loan modification application is submitted. Section 2924.11(a) provides that “[i]f a borrower submits a complete application for a foreclosure prevention alternative offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, trustee, mortgagee, beneficiary, or authorized agent shall not record a notice of sale or conduct a trustee’s sale while the complete foreclosure prevention alternative application is pending, and until the borrower has been provided with a written determination by the mortgage servicer regarding that borrower’s eligibility for the requested foreclosure prevention alternative.” An application is deemed “complete” under this section “when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” Civil Code §§ 2924.11(f). Once a written determination is made either denying the application or approving it and the borrower is not in compliance with any loan modification or other foreclosure alternative, a servicer may proceed with foreclosure. Civil Code §§ 2924.11(b)-(d).

Here, plaintiff makes no allegations that he submitted a loan modification, let alone a complete application. Defendants’ motion for judgment on the pleadings is granted as to the first cause of action.

SECOND CAUSE OF ACTION (i.e., INTENTIONAL MISREPRESENTATION):

The elements of intentional misrepresentation, or actual fraud, are: “(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474.

‘”Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect.”’ (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 234.

“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written, authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Archuleta v. Grand Lodge etc. of Machinists (1968) 262 Cal.App.2d 202, 208–209; Gautier v. General Telephone Co. (1965) 234 Cal.App.2d 302, 308; Mason v. Drug, Inc. (1939) 31 Cal.App.2d 697, 703; Sanders v. Ford Motor Co. (1979) 96 Cal.App.3d Supp. 43, 46; see Grossman & Van Alstyne, California Practice (2d ed. 1976) § 984, pp. 111–114.).” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.

It is unclear what representations plaintiff believes were made by defendants. Plaintiff has failed to allege how, when, where, to whom, and by what means the purported representations were made, nor are there any factual allegations regarding reliance.

Plaintiff lacks standing to challenge an assignment made on allegations of “robo-signing.” See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 820. Plaintiff’s “holder of the note” theory fails. See Debrunner v. Deutsche Bank National Trust Company (2012) 204 Cal.App.4th 433

Plaintiff’s claim also appears to be time-barred, as the alleged misrepresentations ostensibly appear to have to do with assignments of the deed of trust that occurred in 2010, 2012 and 2014. The statute of limitations for fraud is three years. CCP § 338(d). Plaintiff has not pled delayed discovery.

Defendants’ motion for judgment on the pleadings is granted as to the second cause of action.

THIRD CAUSE OF ACTION (i.e., INJUNCTIVE RELIEF):

“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.

Defendants’ motion for judgment on the pleadings is granted as to the third cause of action.

FOURTH CAUSE OF ACTION (i.e., VIOLATION OF CALIFORNIA PENAL CODE SECTION 115):

“Adoption of a regulatory statute does not automatically create a private right to sue for damages resulting from violations of the statute. Such a private right of action exists only if the language of the statute of its legislative history clearly indicates the Legislature intended to create such a right to sue for damages.” Vikco Ins. Services, Inc. v. Ohio Indem. Co. (1999) 70 Cal.App.4th 55, 62 (emphasis theirs).

There is no indication that the Legislature intended that a plaintiff has a private right of action to enforce Penal Code § 115 (i.e., “Procuring or offering false or forged instrument for record; violations; punishment”) when a number of avenues for claiming fraud are available.

Defendants’ motion for judgment on the pleadings is granted as to the fourth cause of action.

FIFTH CAUSE OF ACTION (i.e., VIOLATION OF UCC 8-302 NON BONA-FIDE PURCHASER):

Plaintiff’s reliance on Uniform Commercial Code provisions pertaining to negotiable instruments is misplaced. See Debrunner, supra, 204 Cal.App.4th at 440. “’The comprehensive statutory framework established [in sections 2924 to 2924k] to govern nonjudicial foreclosure sales is intended to be exhaustive.” Id. (citation omitted). “Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute,’” including any in the UCC. Id. (citation omitted).

Defendants’ motion for judgment on the pleadings is granted as to the fourth cause of action.

The court will hear from plaintiff as to whether leave to amend is requested, and as to which cause(s) of

action, and will require an offer of proof if so.

[1] On 2/9/18, plaintiff filed his “Motion to Extend the Time to File an Opposition to Defendants’ Motion for Judgment on the Pleadings,” which is set for 2/21/18. As the motion was not filed within the time to respond to the motion for judgment on the pleadings, the court declines to entertain the motion.