Demurrer

Cal. Super. - 6th Dist.June 3, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUSTIN B. KENNEY (State Bar No. 242277) abk@severson.com EVELINA MANUKYAN (State Bar No. 233262) exm@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 941 11 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendants OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A., as Trustee for Harborview Mortgage Loan Trust 2007-3 SUPERIOR COURT Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/6/2020 12:21 PM Reviewed By: R. Tien Case #1 9CV348380 Envelope: 5056039 OF CALIFORNIA COUNTY OF SANTA CLARA SILVERIO R. PANLASIGUI, Plaintiff, vs. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLC, OCWEN LOAN SERVICING, LLC, PHH MORTGAGE CORPORATION, ETS SERVICES, LLC, GMAC MORTGAGE, LLC; WELLS FARGO BANK, N.A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, and DOES 1 through 15, inclusive, Defendants. 21000.0722/15489333.1 Case No. 19CV348380 OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; AND WELLS FARGO BANK, N.A., As TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3 DEMURRER T0 PLAINTIFF’S FIRST AMENDED COMPLAINT Filed concurrently with Memorandum of Points and Authorities and Declaration re Meet and Confer Date: Time: Dept: 20 Action Filed: June 1, 2019 Trial Date: None Set OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 01/12/2021 9:00 am A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF DEMURRER TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on , 2020 in Department 20 of the Santa Clara County Superior Court, located at 191 North First Street San Jose, CA 951 13, a hearing Will be held on the demurrer 0f defendants OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A., as Trustee for Harborview Mortgage Loan Trust 2007-3 (“Defendants”) t0 the First Amended Complaint (“FAC”) filed by plaintiff SILVERIO R. PANLASIGUI (“Plaintiff’). The Demurrer is made pursuant to Code of Civil Procedure section 430.10(e) on the grounds that the FAC does not state facts sufficient to constitute a cause of action against Defendants. The demurrer is based 0n this notice, the demurrer, the memorandum of points and authorities, request for judicial notice, and the declaration 0f compliance with California Code 0f Civil Procedure section 430.41 filed concurrently herewith, and all other papers on file in this action, and any further briefs, authorities, or argument that may be presented before or at the hearing. DATED: October 6, 2020 SEVERSON & WERSON A Professional Corporation By: EVELINA MANUKYAN Attorneys for Defendants OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A., as Trustee for Harborview Mortgage Loan Trust 2007-3 21000.0722/15489333.1 2 OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 01/12/21 xxxxxxxxxx 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Defendants demur t0 the First Amended Complaint (“FAC”) filed by Plaintiff 0n the following grounds: The entire Complaint fails t0 state facts sufficient t0 constitute a cause of action against Defendants. (Code CiV. Proc., §430.10(e).) 2. Plaintiff s entire Complaint and each cause of action asserted therein are barred by the statute of limitations. 3. Plaintiff’ s first cause of action for “Violation of California Business and Professions Code Sections 17200 et seq.” fails to state facts sufficient to constitute a cause of action against Defendants (Code CiV. Proc., §430.10(e).) 4. Plaintiff’ s second cause of action for “Intentional Misrepresentation” fails to state facts sufficient to constitute a cause of action against Defendants (Code CiV. Proc., § 430.10(e).) 5. Plaintiff” s third cause of action for “Violation 0f California Civil Code §2924.12 and §2924.17 )” fails t0 state facts sufficient to constitute a cause of action against Defendants. (Code CiV. Proc., § 430.10(e).) 5. Plaintiff” s fourth cause 0f action for “Violation of California Civil Code §3294(C)(3)” fails t0 state facts sufficient to constitute a cause 0f action against Defendants. (Code CiV. Proc., § 430.10(e).) 7. Plaintiff” s sixth cause 0f action “T0 Void or Cancel Assignment 0fDeed of Trust” fails to state facts sufficient to constitute a cause of action against Defendants. (Code CiV. Proc., § 430. 10(6).) 8. Plaintiff” s seventh cause 0f action for “Quiet Title” fails to state facts sufficient to constitute a cause of action against Defendants. (Code CiV. Proc., § 430. 10(6).) Plaintiff’ s “Quiet Title” claim also fails as it is not verified as required by Code of Civil Procedure section 761 .020. 9. Plaintiff” s eighth cause 0f action for “Cancellation 0f Written Instruments” fails to state facts sufficient to constitute a cause of action against Defendants. (Code CiV. Proc., § 430.10(e).) 21000.0722/15489333.1 3 OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Plaintiff” s ninth cause of action for “Slander 0f Title” fails t0 state facts sufficient to constitute a cause 0f action against Defendants. (Code CiV. Proc., § 430.10(e).) 12. Plaintiff’ s tenth cause of action for “Declaratory Relief” fails to state facts sufficient t0 constitute a cause of action against Defendants. (Code CiV. Proc., § 430.10(e).) 13. Plaintiff s eleventh cause 0f action for “Injunctive Relief” fails to state facts sufficient to constitute a cause of action against Defendants. (Code CiV. Proc., § 430.10(e).) 14. Plaintiff” s twelfth cause 0f action for “Violation 0f California Homeowners Bill of Rights” fails to state facts sufficient t0 constitute a cause of action against Defendants. (Code CiV. Proc., § 430.10(e).) Said motion is based 0n this notice of demurrer and demurrer, the supporting memorandum 0f points and authorities, request for judicial notice, the supporting declaration 0f Evelina Manukyan, all pleadings and paper on file in this action, the reply, if any, and 0n any and such further oral argument as may be presented at the hearing on this matter. DATED: October 6, 2020 SEVERSON & WERSON A Professional Corporation By: EVELINA MANUKYAN Attorneys for Defendants OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A., as Trustee for Harborview Mortgage Loan Trust 2007-3 21000.0722/15489333.1 4 OCWEN LOAN SERVICING, LLC; PHH MORTGAGE CORPORATION; ETS SERVICES, LLC; GMAC MORTGAGE, LLC; and WELLS FARGO BANK, N.A. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT