Sachidanand Sinha vs. U.S. Bank National association

Motion for Judgment on the Pleadings

Cal. Super. - 4th Dist.September 24, 2013

OW 0 ~~ O&O Wn HH» W W N O == NN RN ND N N N N N ND m e e a a e m p a e a a em 0 ~~ YN L n bs W ND = O Y e N Y EE W N , oo WRIGHT, FINLAY & ZAK, LLP ELECTRONICALLY FILED Jonathan D. Fink, Esq., SBN 110615 Superior Court of California, Lukasz I. Wozniak, Esq., SBN 246329 ERunty Af Hrange John J. Daller, Esq., SBN 309121 11AT/2016 at 02:28:00 Ph 4665 MacArthur Court, Suite 200 Clerk of the Superior Court Newport Beach, CA 92660 By Diana Cuevas Deputy Clerk Tel. (949) 477-5050; Fax (949) 608-9142 jdaller@wrightlegal.net Attorneys for Defendant, U.S. BANK NATIONAL ASSOCIATION, not in its Individual Capacity, but Solely as Legal Title Trustee for LVS Title Trust I, erroneously sued herein as U.S. BANK NATIONAL ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER SACHIDANAND SINHA Case No: 30-2013-00677181-CU-BC-CIC LEELA SINHA, Assigned to: Hon. Frederick P. Horn Plaintiff, DEFENDANT U.S. BANK NATIONAL Vs. ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS LEGAL U.S. BANK NATIONAL ASSOCIATION and TITLE TRUSTEE FOR LVS TITLE TRUST BSI FINANCIAL SERVICES, INC., I’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; Defendants. MEMORANDUM OF POINTS AND AUTHORITIES Date: RCEXBEXXK January 11,2017 Time: 1:30 p.m. Dept: C31 TO THE COURT, THE PARTIES, TE STEORN EYS OF RECORD: PLEASE TAKE NOTICE that on RECEXBEX RK RKD6 at 1:30 p.m. or as soon thereafter as the matter may be heard, in Department 18 of the above-entitled Court located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendant, U.S. BANK NATIONAL ASSOCIATION, not in its Individual Capacity, but Solely as Legal Title Trustee for LVS Title Trust I, erroneously sued herein as -1- NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS NO 0 9 O N nn A L N D - DN N N N N N N N N e m e a e a pe a ee d p e a a p a p m XX N N nn kh W N = O O W N O Y N R E W N m o U.S. BANK NATIONAL ASSOCIATION (“Defendant” or “U.S. Bank”), will and hereby do move the Court to render a judgment on the pleadings. This Motion for Judgment on the Pleadings is made pursuant to Code of Civil Procedure section 438 and California’s common law and is brought on the grounds that Plaintiffs, Sachidanand Sinha and Leela Sinha (“Plaintiffs”), have failed to state any viable cause of action against Defendant. This Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the matters subject to the Court’s judicial notice, the pleadings and records on file herein, such further papers as may be filed in connection with this Motion and on such further evidence and arguments as may be presented at the hearing on Defendant’s Motion for Judgment on the Pleadings. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP Dated: November 17,2016 By: H J Jonathan D. Fink, Esq., Lukasz I. Wozniak, Esq., John J. Daller, Esq. Attorneys for Defendant, U.S. BANK NATIONAL ASSOCIATION, not in its Individual Capacity, but Solely as Legal Title Trustee for LVS Title Trust I, erroneously sued herein as U.S. BANK NATIONAL ASSOCIATION a. NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS OO © 9 Oa nn pr W N N N N N N N N N N mm e e p m e d e m p d p m e m pe d p a «© NN A Y Re W N = O O 0 N Y R W = O IL 11. IV. VL VIL VIII TABLE OF CONTENTS Page INTRODUCTION AND STATEMENT OF RELEVANT FACTS oo 1 STANDARD FOR MOTIONS FOR JUDGMENT ON THE PLEADINGS 2 UNDER THE DOCTRINE OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL, THIS MOTION SHOULD BE GRANTED AND THE CASE AGAINST U.S. BANK SHOULD BE DISMISSED 2 A. Plaintiffs’ Claims Pertaining to the Validity of the Foreclosure Sale and U.S. Bank’s Title to the Property are Precluded by the Res Judicata Doctrine. 2 B. Plaintiffs’ Remaining Claims are Precluded by the Res Judicata Effect of the 2010 Action. 3 PLAINTIFFS’ ALLEGATIONS FAIL AS A MATTER OF LAW BECAUSE PLAINTIFFS DID NOT SATISFY A CONDITION PRECEDENT TO THE FILING OF THIS LAWSUIT 7 PLAINTIFFS’ CAUSE OF ACTION FOR WRONGFUL FORECLOSURE FAILS BECAUSE IT DOES NOT ALLEGE FACTS UPON WHICH RELIEF MAY BE GRANT ED eeeeee eee eee eee 9 A. Plaintiff’s Cause Of Action For Violation Of Civil Code Section 2923.5 Is Moot Because the Trustee’s Sale Has Already Taken Place. 1 9 B. Plaintiffs’ Claims under the California Homeowner’s Bill of Rights Fail because HBOR is not Applied Retroactively. 10 C. The Holder “In Due Course” Theory Is Inapplicable To Nonjudicial Foreclosure 10 D. Plaintiffs’ Causes of Action for Violation of Civil Code Sections 2923.5 and 2924, violations of the California Homeowner’s Bill of Rights, and for Lack of Standing to Foreclose Must all Fail. 11 PLAINTIFS’ SECOND CAUSE OF ACTION FOR RESPA VIOLATIONS FAILS BECAUSE IT DOES NOT ALLEGE FACTS UPON WHICH RELIEF MAY BE GRANT EDD 11 PLAINTIFFS” FRAUD CLAIMS FAIL eee 12 A. Plaintiffs’ Fraud Claim Lacks Specificity. 12 B. Plaintiffs Cannot Allege Justifiable Reliance. oo... 12 C. Plaintiffs’ Fourth Cause Of Action For Fraud - Concealment Fails Because It Does Not Allege Facts Upon Which Relief May Be Granted... 13 CONCLUSION 14 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS LC 0 93 O N Wn B W ND N N N N N N N N H m a e m e m pe d p e d e m p a 0 I ON Y Un B R A W N R O OVO N O Y N R W N = Oo TABLE OF AUTHORITIES Page Cases Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal. App.4™ 500, 505. ses 2 Bernhard v. Bank of America ((1942) 19 Cal.2d 807, 810-11 ..ccvvveeorevirercrirenieneernresrenenensreae sven ens 5 Boccardo v. Safeway Stores, Inc. (1982) 134 Cal.App.3d 1037, 1043....ccoieeiiiieeieeeceeerceereeee ves 5 Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797 ..ucueevveeeeereceerrerreceenrecrereeesssesseessnennes 3 Branson v. Sun-Diamond Growers (1994) 24 Cal. App.4th 327, 340.....cceoiiervieiieereieieerieeieeee r es 4 Bronco Wine Co. V. Frank A. Lagoluso Farms, (1990) 214 Cal. App.3d 699, 708.......c.cccevvrrerererrvecnencns 4 Brookwood v. Bank of America (1996) 45 Cal. App.4th 1667, 1674 ........cocvecvveinieneneeceeinrinnieee re ss e seas 12 Brosnan v. Dry Cleaning Station Inc., 2008 WL 2388392, at *1 (N.D. Cal. June 6, 2008) ........cc..c...... 8 Buckland v. Threshold Enters., Ltd. (2007) 155 Cal. App.4th 798, 806-07 ......ccccecveverrerrrmrevnrererieereenrenes 12 California Coastal Comm. v. Superior Court (1989) 210 Cal. App.3d 1488, 1499.......cccvvivvmnenverrrevanns 4 Centaur Corp. v. ON Semiconductor Components Indus., LLC, 2010 WL 444715, at *3 (S.D. Cal. Feb. 2s, FOTO crcssscnsssersswmnesmasms smn aes ees RES SHAS NAT A As NT A SRSA RFRA SA BOR ATS AB S33 8 Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 8%4.......ccccceceverrivnenens 8 Cheney v. Truzettel (1937) 9 Cal.2d 158, 160 .....covevueiirmiiiiiiirinierieictrcrcieeer eset ete seiessnesesse s in 3 Clark v. Tide Water Associated Oil Co. (1950) 98 Cal. App.2d 488......coooeeiriiiiviicieniniencncinre serene 8 Cloud v. Northrop Grumman Corp., (1998) 67 Cal. App. 4™ 995, 999 .......ccooerreeeirreernsemseiissesessssseeseeens 2 Consumer Solutions Reo, LLC v. Hillery (N.D. Cal. 2009) 658 F.Supp.2d 1002, 1013 ......ccccecervenrerene. 11 Craig v. County of Los Angeles (1990) 221 Cal. App.3d 1294, 1299 .....coviririiiinininencrerreereenesiaeeees 4 Crawley ». Katlemarn (1994) 8 Cal. Ath 666; 681-82 ...cvuussmsssnssssasssmmmsmsssssminsmssssossasss assis as aim oa is 5 Crowley, supra; Mycogen, supra; Slater v. Blackwood (1976) 15 Cal.3d 791, 795 ......cvvvevvrvnveerevrnennnn 5 Delamater v. Anytime Fitness, Inc., 722 F.Supp.2d 1168, 1180-81 (E.D. Cal. 2010).....ccccecevvrrverrrevvernenne. 8 Employee Painters’ Trust v. J & B Finishes, 77 F.3d 1188, 1192 ....c..covvirinimieieiiiciencrerneseseeeveiennas 7 Estate of Anderson (1997) 60 Cal.APP.AR A436, 442 .....cocui i sussamsonsisssssasanssanssiossanssansssisasssssimmiassnressasass 13 Fields v. Blue Shield of California (1985) 163 Cal.App.3d 570, 578..uuanmssscommmssmcsasmssss ssa s saoins 7 Frantz v. Blackwell (1987) 189 Cal. APP.3d 91, 94; ....ecriririiieeciereerereenieertesteresteeeesesserssne earns snaesens 2 “i= MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS - N N N N N N N N N N N -/) o r e m e m e m e m ma e m pe a p m © N N N Ln bh W R N = DO VO N N N RN W N = o © 0 N N Un A W N Freeze v. Salot (1954) 122 Cal ADD. 2d 561, S65. suse svssvivonssninss snisissinitsiaiontatonbonisiinsnenransnaniiniassasansarasonss 3 Frommhagen v. Board of Supervisors of Santa Cruz County, (1987) 197 Cal. App.3d 1292, 1299........... 3 Frommhagen, supra, at 1301; Kahn v. Kahn, (1977) 68 Cal. App.3d 372, 382-83 .....c.coeevvvrrenecrennnnns 4 Gamble v. General Foods Corp., (1991) 229 Cal. App.3d 893, 898........oooivriireenireereneieeerrrnresre esses 5 George v. Automobile Club of Southern Calif (2011) 201 Cal. App.4™ 1112, 1130. .e.evevereerreeeerererrrenn. 2 Gerber v. First Horizon Home Loans Corp., 2006 WL 581082, at *2 (W.D. Wash. Mar. 8, 2006) ......... 8 Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1039, 1043 (N.D.Cal., 2009)......ccceceueerveennene. 10 Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1616 .......ccceoevvvevreveennee. 10 Herm v. Hemm, (1980) 26 Cal.30 323; F050 cms sesussswssnissosnssssmsss fs u s a ssa iin S595 4 Higley v. Flagstar Bank, FSB, 910 F.Supp.2d 1249, 1253. .cc.cciviiiiiiereneninreneeenesieasssssseesesessansessesenes 8 LE. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 .....cooivevineniiiieienieninscnccieeeneaines 13 Johnson v. American Airlines, Inc., (1984) 157 Cal. App.3d 427, 432-33...c.overerervrnrrreeerereneseereesseens 6 Lazar v. Superior Court (1996) 12 Cal.4th 631, 638......cceeiriierirereenenineciesreneseeesreeseescrnssse ssa ssees ene 12 Little v. Harbor Pacific Mortgage Investors (1985) 175 Cal. App .3d 717, 720 ....cccevveveeevcvrrenrverneennn 14 Lucioni v. Bank of America, N.A. (2016) 3 Cal. App.S5th 150, 158 ..c.cvieveririceeririerieceeecteeeeree reer enena 10 Mabry v. Superior Court (2010) 185 Cal. App.4th 208, 220-221, 235 .....ocivievrrerrnieirecrenereeneneseesseennees 10 Mabry v. Superior Court, supra, 185 Cal. App.4th at p. 235, saamvssssmsssasmssssmsssessmssiamssmmssssms 10 Malkoskie v. Option One Mortg. Corp. (2010) 188 Cal. App.4th 968, 973,974 .....coceeiirvvivvicrcieniecrene, 3 Mehta v. Wells Fargo Bank, N.A.(S.D.Cal., 2010) 737 F.Supp.2d 1185, 11%.....c.cccoveimirirrccenrecrennnne 10 Miller v. Cote (1982) 127 Cal. App.3d 888, 894 .......coviriiieiiiiiiiiciircientceeite e s ees 14 Moeller v. Lien (1994) 25 Cal. App.4th 822, 830; .......couuveeerieiiiiiiciiniesicieicnieise si sies ss ssansesaones 10 Moaellerv. Lien (1994) 25 Cal. App:Ath 822, B3%iuuussssmunssnsumnsssnssssnonss sinvasssssss ses 55s sa s as ss asso wes 13 Mycogen Corp. v. Monsanto Co. (2002) 28 Cal Ath 888, 904 ..csssmummsmumssvommmsssassissssammammsmmosss sass ines 5 Mycogen, supra, at PP. 905-00.....cceviriiiriiiiinrire esis sess esses essere sates sree sre eben she sre nen 6 Niyaz v. Bank of Am., 2011 WL 63655 (E.D.Va. Jan. 3,2011) aff'd, 442 Fed.Appx. 838 (4th Cir.2011). 8 Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App.3d 460, 465 .....ccvvveviveviervenvnrennn. 3 Producers Dairy Deliv. Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910 ..cc.covevrrvevminieieiieieiiecieniinns 4 Rabi. Five Platters, Inc. (9th Cir. 1988) 838 F.2d 3 1B, 326-27 ccsuwmsemomsmsessnsssussnansssessmmsanssisssossnssinnass 4 -1ii- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OO 0 9 S Y n n RA W O N N O N N N N N N N N = r e m e m m a pe d p e d p a p e p a 0 N N N Ln bh W N R O Y N N D N E W N = o Rockridge Trust v. Wells Fargo, N.A. (N.D. Cal. 2013) 985 F.Supp.2d 1110, 1153 w.rrvvveeeerrreerrerrrene 10 Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394,424 .........ccvevvvevveveevnecnenn, 13 Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal. App.4th 992, 997-98 .......oeoemirreiireicennterirecseevessae een 4 Saltarelli & Steponovich v. Douglas (1995) 40 Cal. App.4™ Li. 3 snes --- 2 Stafford v. Yerge (1954) 129 Cal. APP.2d 165, 171 ....ovivnrioiererirrintirinnrcnnieerisnsrerese svete ess esess n nnes 5 Stuphin v. Speik (1940) 15 Cal.2d 195, 202...covevirrirerirriiireenierienrenirtesrese sree ee ssese ssessessenssasess s asssesssnes 6 Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal. App.4th 153, 157 wccvevievirvierenieriinienneesveennens 12 Tensor Group v. City of Glendale (1993) 14 Cal. App.4th 154, 160-161 ....cc.ccevvererrverierrrrrcereereennnennen, 6 Torrey Pines Bank v. Superior Court (1989) 216 Cal. App.3d 813, 824 ....covvvveveiieviineerieeeeneere , 6 Vella v. Hudgins (1977) 20 €al.3d 2515 25 Suussesmssavssssenissesiansnsmmsins doves as ay seas asics sa msiss oa 3 Weikel v. TCW Realty Fund II Holding Co., (1997) 55 Cal. App.4th 1234, 1246 .......ccccecevvimevecrrninnens 4,5 Weikel, supra; Citizens for Open Access, SUPFa, at 1067 ........covviereeiiieeniniiniinieeeiesieesesee e see sr 5 Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App.3d 1324, 1331 ...cccecvvvevrmnvenrnrcnnnn. 12 Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895.......oommiriccec eens 5 Statutes California Commercial Code SECtION 3301 .....c.ccueviiiiiriiiiiiiiiiiriic treet senses sees senna 10 CIVIL Orla § 2D... vurersmsimianmnmsoms amma Sosa Siinomlamoiie 53 5 5568 FE 5 55564 RES 0 EF a mn 10, 14 CAVA] COTE § TD DAE sisson sins 5585550855555 45553555 45 HRA A ER FASS AS HBS ASH SH SEAMS NNN TS ASH SA 14 CIVII Code SECHOM 2923.5 .avureiiiieiieieeieiitieieessiesreeresisresesssssessersssssessssrsrssesssrsssesressssnessssssssessrsssssessnsssssssne i,9 Code Of Civil Procedure §438 ......c.oooireeieieieireeniecerenesestessesesesese sn s essess s esse sessee s ssss sansss s esse ssens 2 Code of Civil Procedure, § 438(d)...c.cooe erie cesses sarees eens ses sae 2 Other Authorities Cloud, supra, 67 CaLAPP.A™ GE 999........oevereeeeereeeeessssees serosa ssessess sess ssssessess assess sss sss es e snares. 2 -iv- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OO 0 NN O N Wn Bx W N = N N N N N N N N N m m e m e m e a a e m e m NN A N R W = O V N O Y R W ND = o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF RELEVANT FACTS On or about May 23, 2006, Plaintiffs, Sachidanand Sinha and Leela Sinha (collectively, “Plaintiffs”) obtained a mortgage loan in the amount of $1,560,000.00 (“Subject Loan”) in order to purchase certain real property located at 730 Santana Drive, Corona Del Mar, California 92625 (“Property”). (Request for Judicial Notice [“RIN”] Exh. 1.) Plaintiffs’ loan was secured by a Deed of Trust, originally in favor of Wells Fargo Bank, N.A. (“Wells Fargo”), which was subsequently recorded against the Property (“Deed of Trust”). (RIN, Exh. 2.) In December 2012, Wells Fargo Bank, N.A. assigned its beneficial interest under the Deed of Trust to U.S. Bank National Association, not in its Individual Capacity, but Solely as Legal Title Trustee for LVS Title Trust I (“Trustee or “U.S. Bank”), as evidenced by the Assignment of Deed of Trust (“ADOT”). (RIN, Exh. 3.) Plaintiffs defaulted on the Loan in March 2009. Plaintiff Leela Sinha filed for Chapter 7 Bankruptcy and a relief from stay was granted in July 2009. (RIN, Exh. 4-5.) After Plaintiffs failed to cure the default, Wells Fargo caused a Notice of Default to be recorded in January 2010 against the Property (“2010 NOD”). (RJN, Exh. 6.) On June 11, 2010, a Substitution of Trustee was recorded, evidencing the substitution of Cal-Western Reconveyance, LLC, as trustee under the Deed of Trust. (RIN, Exh. 7.) Plaintiffs did not cure the default, and on June 30, 2010, Wells Fargo caused to be recorded a Notice of Trustee’s Sale against the Property (“2010 NOS”). (RIN, Exh. 8.) In their next attempt to stall the foreclosure process, Plaintiff Leela Sinha filed a Complaint against several defendants in October 2010, including Wells Fargo, the predecessor-in-interest to U.S. Bank (“2010 Action”). The 2010 Action included claims for wrongful foreclosure, RESPA violations, fraud - intentional misrepresentation, and fraud - concealment (2010 First Amended Complaint (“2010 FAC”)) relating to the Property. (RIN, Exh. 9.) Wells Fargo’s demurred to the 2010 FAC. (RIN, Exh. 10.) Wells Fargo filed its Notice of Entry of Judgment on July 21, 2011. (RJN, Exh. 11.) Plaintiff Leela Sinha’s application for a stay of the foreclosure sale and petition for review were denied April 13, 2011. (RIN, Exh. 12.) Subsequently, Plaintiff Sachidanand Sinha filed for Chapter 11 Bankruptcy and a relief from stay was granted in June 2011. (RJN, Exh. 13-14.) -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS Oo 00 9 O N n n R W N N N N N N N N N m m m e m e a e a ad p e d p e d e e d p e 00 J O N nn BR LW = O O O Y N W N = Oo A second Notice of Default (“2012 NOD”) was recorded in December 2012, and, because Plaintiffs failed to cure the default, a Notice of Trustee’s Sale (“2013 NOS”) was recorded in June 2013. (RIN, Exh. 15-16.) In response, Plaintiff Sachidanand Sinha filed again for Chapter 11 Bankruptcy in June 2013. (RJN, Exh. 17.) On September 2013, a Trustee’s Deed Upon Sale was recorded, evidencing the non-judicial foreclosure sale of the Property on or about September 6, 2013, in favor of U.S. Bank. (“2013 Sale”). (RIN, Exh. 18.) On December 16, 2013, U.S. Bank filed an unlawful detainer action (“U.D. Action”) against Leela Sinha and Sachidanand Sinha. (RIN, Exh. 19.) On January 29, 2014, possession of the Property was awarded to U.S. Bank. (RIN, Exh. 20.) U.S. Bank obtained judgment for possession of the Property on February 3, 2014. (RIN, Exh. 21.) IL STANDARD FOR MOTIONS FOR JUDGMENT ON THE PLEADINGS A motion for judgment on the pleadings has the same function as a general demurrer. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Smiley v. Citibank (South Dakota) N.A. (1998) 11 Cal.4th 138, 145-146.) Both motions may be brought where the complaint fails to allege facts upon which relief may be granted. (Code Civ. Pro. §§ 430.10, subd. (c); 438, subd. (B)(ii).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice. (See, Code of Civ. Pro., § 438, subd. (d); Cloud, supra, 67 Cal. App.4th at 999; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5. “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference or in a superseded complaint in the same action. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also, Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; George v. Automobile Club of Southern Calif. (2011) 201 Cal.App.4th 1112, 1130.) III. UNDER THE DOCTRINE OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL, THIS MOTION SHOULD BE GRANTED AND THE CASE AGAINST U.S. BANK SHOULD BE DISMISSED A. Plaintiffs’ Claims Pertaining to the Validity of the Foreclosure Sale and U.S. Bank’s Title to the Property are Precluded by the Res Judicata Doctrine. "The doctrine of res judicata gives certain conclusive effect to a former judgment in 3. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO 0 3 O N Wn RAR W N e e N N N O N N N N N NN e d e d p m e m p k k m p d e d pe a o o N N O N n h L N = O O N N RAR W N = O subsequent litigation involving the same controversy." (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797 (emphasis original).) Res judicata, also known as claim preclusion, "operates as a bar to the maintenance of a second suit between the same parties on the same cause of action." (Ibid. (quotation marks omitted).) Collateral estoppel, also known as issue preclusion, "operates in a second suit ... based on a different cause of action ... as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." (/bid.) The legal focus of an unlawful detainer action centers on the right to possession of the property, including a review of whether the foreclosure sale complied with Civil Code Section 2924 and/or was conducted with all of the appropriate notices. (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465; see also, Cheney v. Truzettel (1937) 9 Cal.2d 158, 160 (‘[w]here the plaintiff in the unlawful detainer action is the purchaser at the trustee’s sale, he or she need only prove a sale in compliance with the statute and deed of trust followed by purchase at such sale, and the Defendant may raise objection only on that phase of the issue of title.”).) As a result, an unlawful detainer judgment has res judicata effect in subsequent proceedings between the parties that challenge the validity of the foreclosure sale and the purchaser's title to the property. (Malkoskie v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 973, 974; Freeze v. Salot (1954) 122 Cal.App.2d 561, 565; Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) Here, U.S. Bank obtained an unlawful detainer judgment on February 3, 2014. (RJN, Exh. 21.) Consequently, Plaintiffs are barred from re-litigating the issues of recording, service, publishing, and posting of the foreclosure notices, the validity of the foreclosure sale, and U.S. Bank’s title to the Property. Therefore, there contentions fail as a matter of law. B. Plaintiffs’ Remaining Claims are Precluded by the Res Judicata Effect of the 2010 Action. The doctrine of res judicata (claim preclusion) gives conclusive effect to a former final judgment in subsequent litigation involving the same parties (or their privies) and the same controversies. (Frommhagen v. Board of Supervisors of Santa Cruz County, (1987) 197 Cal.App.3d 1292, 1299. See also 7 Witkin, Cal.Proc. (3d Ed. 1985) Judgment § 188, et seq.) Thus, an unsuccessful plaintiff cannot avoid the effects of an adverse final judgment by thereafter re-filing and -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO 00 NN O N Wn bh W N N O N N N N N O N N O N m m e m e m p a e m e a e m e m p m 00 NN O N Ln pA W N = O Y 0 N N O Y l L = o asserting the same causes of action, or even claims relevant to, and within the scope of, the first action that were not actually raised there but could have been. (Craig v. County of Los Angeles (1990) 221 Cal.App.3d 1294, 1299; California Coastal Comm. v. Superior Court (1989) 210 Cal. App.3d 1488, 1499 (plaintiff cannot avoid bar by raising new different legal theories or requesting different relief).) There is also a closely related aspect of the doctrine, commonly known as collateral estoppel (issue preclusion), which prohibits the re-litigation of any issue which was litigated in the prior case, even if raised in the guise of a new cause of action, even if raised by one who was not himself a party to the prior action, and even if there were factual matters or legal arguments in support of a litigated issue which were not presented in the prior action, so long as they could have been presented. (Henn v. Henn, (1980) 26 Cal.3d 323, 329-30. Bronco Wine Co. V. Frank A. Lagoluso Farms, (1990) 214 Cal.App.3d 699, 708; Frommhagen, supra, at 1301; Kahn v. Kahn, (1977) 68 Cal.App.3d 372, 382- 83. See also Weikel v. TCW Realty Fund II Holding Co., (1997) 55 Cal.App.4th 1234, 1246 (discussing the “primary rights” test applied by California courts to determine whether a subsequent action on new theories arises out of the same primary rights at issue in an earlier action so as to be barred by the judgment in that first action).) The three elements required for applying the doctrine of res judicata are: (1) there was a final judgment on the merits in the prior action, (2) the party against whom res judicata is asserted was in privity with a party to the prior action, and (3) the issue decided in the prior action is identical with that presented in the later action. (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340; Robi v. Five Platters, Inc. (9th Cir. 1988) 838 F.2d 318, 326-27.) Similarly, the three elements of collateral estoppel are: (1) an issue necessarily decided in the prior suit is identical to an issue in the current suit; (2) the prior suit resulted in a judgment on the merits; and (3) the party against whom the doctrine is invoked was a party to the prior suit or in privity with a party. (Producers Dairy Deliv. Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) In this regard, it should be noted that the requirement for “finality” of the judgment is interpreted even less strictly than for claim preclusion. (Jd. at p. 911; Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal. App.4th 992, 997-98 (issue preclusion can apply even where the underlying cause of action is not itself barred).) 1" 4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS Oo 0 9 O N Wn R w ND N N N N N N N N NN m e e m e m e m p m e m e m p m es © NN a N nn B R A W L = O O N D N nN R E W I N D = D As stated by the Court in Bernhard v. Bank of America ((1942) 19 Cal.2d 807, 810-11): “Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. The doctrine also serves to protect persons from being twice vexed for the same cause.” a. The Issues in the Present and Prior Actions are Essentially the Same. In analyzing two lawsuits for purposes of applying the doctrine of res judicata a court should look past the typically colorful, and inevitably one-sided, “factual” (and conclusory legal) allegations plead by plaintiffs to ascertain whether the “cause of action” at issue in each lawsuit is the same. (Stafford v. Yerge (1954) 129 Cal. App.2d 165, 171.) California courts do so by employing the “primary rights” theory, which reduces a “cause of action” to three parts: (1) the primary right possessed by the plaintiff; (2) the corresponding duty that falls upon the defendant not to violate or infringe the plaintiff's primary right; and (3) a breach by the defendant of its duty and of the plaintiff's primary right. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-82; accord Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) Where two lawsuits address the same primary right, they constitute only a single “cause of action.” (Gamble v. General Foods Corp., (1991) 229 Cal. App.3d 893, 898; accord Weikel v. TCW Realty Fund II Holding Co., (1997) 55 Cal. App.4th 1234, 1246.) Importantly, a primary right is indivisible. As a result, the violation of a single primary right only gives rise to a single cause of action, even though there may be multiple legal theories of recovery. (Crowley, supra; Mycogen, supra; Slater v. Blackwood (1976) 15 Cal.3d 791, 795; Weikel, supra; Citizens for Open Access, supra, at 1067.) Moreover, a party may not “split” a cause of action into several different lawsuits, each alleging a different legal theory of recovery. (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895; Boccardo v. Safeway Stores, Inc. (1982) 134 Cal.App.3d 1037, 1043 (“[R]es judicata precludes piecemeal litigation by splitting a single cause of action.”).) Rather, the law requires a party seeking vindication for the invasion of a primary right to allege all legal theories of recovery in a single lawsuit. 1 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OO 0 9 O N nh BA W N ND N N N N N N N N mm e m e m em a e a e d p d a «© 3 O N nn Rs W N H O Y N O N N R W -= Oo Pursuant to that requirement, res judicata bars relitigation of all issues actually raised in the first action and all issues that could have been raised in the first action, regardless of whether they were raised or not. “If the matter was within the scope of the [prior] 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. . . . [T]he rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Stuphin v. Speik (1940) 15 Cal.2d 195, 202; see also Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 824 (and cases cited therein). It is irrelevant whether the claims in the second action arise under state law while those in the first invoked federal law, if the underlying primary right is the same, the latter claim will be barred. (Johnson v. American Airlines, Inc., (1984) 157 Cal.App.3d 427, 432-33.) Res judicata also precludes relitigation of a cause of action based upon different damages claims; so long as the damages all stem from violation of the same primary right, res judicata applies. (Mycogen, supra, at pp. 905-09 (rejecting argument that second action was not barred by res judicata as it sought damages, whereas first action sought only specific performance); Tensor Group v. City of Glendale (1993) 14 Cal. App.4th 154, 160-161 (alleged additional and different damages that could have been raised in a prior action do not defeat res judicata).) Requiring a party to make all claims regarding a given cause of action in one lawsuit furthers the policy of repose behind res judicata by preventing multiple lawsuits over the same issue. Here, the 2010 Action and this action are essentially the same as they involve the same loan, and the same Deed of Trust against the same Property. The causes of action in the FAC are almost identical to the causes of action in the 2010 FAC, including wrongful foreclosure, RESPA violations, fraud, and misrepresentation. While the 2010 FAC specifically pertained to the 2010 NOD and the 2010 NOS, both the FAC and the 2010 FAC simply revolve around empty allegations regarding the foreclosure process, pre- and post-2013 Sale. Plaintiffs cannot be permitted to challenge essentially the same facts twice. b. There is Privity Between Wells Fargo and U.S. Bank. In the 2010 Action, Plaintiff Leela Sinha sued, among others, Wells Fargo (as the predecessor- in-interest to U.S. Bank) to challenge the actions of the originating parties to the Deed of Trust and to -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO 0 9 O N Wn BR W N N O N N N N O N N N O N MH k d p d p m p d p a p a p a p m p m © NN O N R W = O 0 X NN O Y E W N = o challenge whether Wells Fargo and other defendants properly initiated the non-judicial foreclosure process, essentially to stall the non-judicial foreclosure process. As evidenced by the 2012 ADOT, Wells Fargo assigned all beneficial interest under the Deed of Trust to U.S. Bank. Therefore, it is beyond dispute that Wells Fargo and U.S. Bank are in privity for purposes of res judicata. A There is Finality to the Prior Action. All issues currently before this court were fully litigated and finally decided by the court in the 2010 Action when Wells Fargo’s demurrer to the 2010 FAC was sustained without leave to amend. Wells Fargo filed its Notice of Entry of Judgment on July 21, 2011. (RJN, Exh. 11.) Plaintiff Leela Sinha’s appeal of the judgment was dismissed. (RIN, Exh. 22.) The dismissal of Plaintiff Leela Sinha’s appeal makes the ruling of the trial court final. Thus, under the doctrines of res judicata and/or collateral estoppel, Plaintiffs are precluded from continuing with this litigation and the matter should be dismissed against U.S. Bank as the successor-in-interest to Wells Fargo. IV. PLAINTIFFS’ ALLEGATIONS FAIL AS A MATTER OF LAW BECAUSE PLAINTIFFS DID NOT SATISFY A CONDITION PRECEDENT TO THE FILING OF THIS LAWSUIT By executing the Deed of Trust, Plaintiffs agreed to be bound by the terms and conditions of the instrument. (Fields v. Blue Shield of California (1985) 163 Cal.App.3d 570, 578 (general duty to read binds signing party to contract unless it contains unusual or unfair language, which the preparing party must explain); Employee Painters’ Trust v. J & B Finishes, 77 F.3d 1188, 1192 (9th Cir.1996) (party who signs a written agreement even without reading it is bound by its terms).) The Deed of Trust obligated Plaintiffs to satisfy certain conditions prior to the filing of their lawsuit. Specifically, Section 20 of the Deed of Trust required Plaintiffs to provide a “Notice of Grievance” to Defendant prior to the filing of their Complaint: 20. Sale of Note; Change of Loan Servicer; Notice of Grievance.... Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action... (RIN, Exh. 2.) ee MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO 0 NN O N Wn Rk W N e e N N N N N N N N N o m e m m m e a p m e m e m p m p m 0 NN A N nn hk W I N D = O O N N YN N R W NN = D This condition is binding on Plaintiffs. Although no California court has yet ruled on the effect of a borrower’s failure to satisfy the “notice of grievance” procedure of Section 20 of the Deed of Trust, courts have upheld similar provisions in non-mortgage contexts of contract law. For instance, in Clark v. Tide Water Associated Oil Co. (1950) 98 Cal.App.2d 488, the court ruled that the Plaintiff’s failure to provide a written notice of default to the lessee, as required by the lease agreement, barred his right to sue the defendant. (Id. at 488-489, 491.) Similarly, courts have found that the parties’ failure to engage in contractually mandated alternative dispute resolutions procedure prior to the filing of the lawsuit prevent them from suing. (See, Delamater v. Anytime Fitness, Inc., 722 F.Supp.2d 1168, 1180-81 (E.D. Cal. 2010) (“Failure to mediate a dispute pursuant to a contract that makes mediation a condition precedent to filing a lawsuit warrants dismissal”); Centaur Corp. v. ON Semiconductor Components Indus., LLC, 2010 WL 444715, at *3 (S.D. Cal. Feb. 2, 2010) (accord); Brosnan v. Dry Cleaning Station Inc., 2008 WL 2388392, at *1 (N.D. Cal. June 6, 2008) (accord); Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 894 (upholding the trial court’s ruling that the suit was barred where the plaintiff failed to adhere to the requirements of the arbitration provisions of the agreement).) The effect of a borrower’s failure to provide the “notice of grievance” in violation of Section 20 of the deed of trust has been addressed by federal courts outside of California. These out-of-state decisions have found that a borrower’s failure to satisfy the “notice of grievance” requirements of the deed of trust is fatal to the borrower’s claims. (See, Gerber v. First Horizon Home Loans Corp., 2006 WL 581082, at *2 (W.D. Wash. Mar. 8, 2006) (failure to comply with notice-and-cure provision barred a breach of contract claim); Niyaz v. Bank of Am., 2011 WL 63655 (E.D.Va. Jan. 3, 2011) aff'd, 442 Fed. Appx. 838 (4th Cir.2011) (failure to comply with notice-and-cure provision barred claims attempting to halt foreclosure). Higley v. Flagstar Bank, FSB, 910 F.Supp.2d 1249, 1253 (D. Or. 2012) (accord).) Based on the foregoing, it is evident that a borrower who wishes to sue his or her lender and/or servicer for breach of the deed of trust and/or foreclosure-related misconduct must first satisfy the “notice of grievance” requirements of Section 20. i" -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO © J O N nm bh WwW ND = N N N N N D N N N N RN m m e m e m p m p t p m p m Ww J N nn B R A W N = O O N N N R W N N = o Here, Plaintiffs have alleged causes of action for wrongful foreclosure, RESPA violations, and fraud. In their foreclosure-related claims, Plaintiffs contend, among other things, that Defendant: (1) violated Section 20 of the Deed of Trust by failing to provide a proper notice to Plaintiff (FAC, q11.); (2) improperly recorded a Notice of Default in violation of Civil Code Section 2923.5 (FAC, q11.); (3) failed to rescind the Notice of Default in violation of Civil Code Section 2925.11 (FAC, 13); (4) violated dual-tracking provisions of the California Homeowner Bill of Rights (FAC, 920.); (5) failed to provide notice of postponement of sale (FAC, §20.); and (6) failed to provide notice of sale to Plaintiff in violation of Civil Code Section 2924f (FAC, q31.). In their RESPA claim, Plaintiffs claim Defendant did not timely respond to inquiries and QWRs. (FAC, 926.) These allegations plainly “arise from the [Defendant’s] actions pursuant to [the Deed of Trust],” i.e., its enforcement through foreclosure, or “allege[] that [Defendant has] breached any provision of, or any duty owed by reason of, [the Deed of Trust],” i.e., failed to modify Plaintiffs’ loan. Thus, they fall within the provisions of Section 20 of the Deed of Trust and Plaintiffs were required to provide the requisite “notice of grievance” to Defendant prior to the filing of this action. Yet, Plaintiffs did not allege any facts to demonstrate that they provided the requisite written “notice of grievance” to Defendant within a reasonable time prior to the filing of their complaint. They also did not allege any facts to demonstrate that Defendant actually received their Notice. Accordingly, Plaintiffs have failed to allege facts demonstrating that they satisfied the condition precedent to filing this lawsuit and, therefore, their FAC should be dismissed as a matter of law. V. PLAINTIFFS’ CAUSE OF ACTION FOR WRONGFUL FORECLOSURE FAILS BECAUSE IT DOES NOT ALLEGE FACTS UPON WHICH RELIEF MAY BE GRANTED Within their first cause of action, Plaintiffs allege violations of Civil Code Sections 2923.5 and 2924, the California Homeowners’ Bill of Rights (‘HBOR”), and that Defendant did not prove ownership of the Loan or authorization to foreclose. A. Plaintiffs Cause Of Action For Violation Of Civil Code Section 2923.5 Is Moot Because the Trustee’s Sale Has Already Taken Place. Simply put, there is no post-foreclosure remedy for a violation of Civil Code Section 2923.5. The only remedy available under this section is a postponement of the sale before it happens. (Mabry v. 9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS Oo XX 9 O N n s e W N N N N N N N N N N = m s e m e m e m a e d pe RN NN AN Un hse W N = O Y N N N R A W NN = o Superior Court (2010) 185 Cal.App.4th 208, 220-221, 235; Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1616; Mehta v. Wells Fargo Bank, N.A.(S.D.Cal., 2010) 737 F.Supp.2d 1185, 1194.) As stated best by the California Court of Appeals, “[t]here is nothing in section 2923.5 that even hints that noncompliance with the statute would cause any cloud on title after an otherwise properly conducted foreclosure sale.” (Mabry v. Superior Court, supra, 185 Cal.App.4th at p. 235.) Here, the trustee’s sale occurred on or about September 6, 2013. (RJN, Exh. 18.) Thus, Plaintiffs’ cause of action fails as moot. B. Plaintiffs’ Claims under the California Homeowner’s Bill of Rights Fail because HBOR is not Applied Retroactively. Plaintiffs allege deficiencies in the notices recorded against the Property prior to the HOA Sale. However, the provisions that entail HBOR did not become law until January 1, 2013, and the notices pre-date the enactment of HBOR. “The provisions of HBOR that authorize actions to enjoin nonjudicial foreclosures govern where a notice of default was recorded after the HBOR’s effective date (emphasis added).” (Lucioni v. Bank of] America, N.A. (2016) 3 Cal. App.5th 150, 158 (citing Rockridge Trust v. Wells Fargo, N.A. (N.D. Cal. 2013) 985 F.Supp.2d 1110, 1153 (dismissing HBOR claims because the statute was not retroactive, where notice of default and notice of trustee’s sale were executed before Jan. 1, 2013.).) Here, the Notice of Default was recorded December 14, 2012. (RJN, Exh. 15.) Since the Notice of Default was recorded before HBOR’s effective date, Plaintiffs’ HBOR claims must fail. C. The Holder “In Due Course” Theory Is Inapplicable To Nonjudicial Foreclosure. Plaintiffs’ allegations that Defendants wrongfully foreclosed on the Property because Defendants were not holders of the promissory note in “due course” and were not “persons entitled to enforce” the note pursuant to Commercial Code section 3301 is legally incorrect. Possession of the note is not a prerequisite to the nonjudicial foreclosure sale. (See, e.g., Hafiz v. Greenpoint Mortg. Funding, Inc. (N.D. Cal., 2009) 652 F.Supp.2d 1039, 1043 (“Plaintiff entirely misstates the law in alleging that defendants must present a note in order to foreclose under the deed of trust.”); Moeller v. Lien, (1994) 25 Cal.App.4th 822, 830-34; Huene v. Cribb, (1908) 9 Cal. App. 141, 143-144; see also Civ. Code § 2924, et seq.) In fact, as explained in Sicairos v. NDEX West, LLC (S.D. Cal., Feb. 13, 2009, -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS Oo 0 3 O N nn b w N O N N N N N N N N e m e k pe d p a pe d p d e h p d p e 00 1 O N nn RR W N = O O N N R W NY m o 08CV2014-LAB (BLM)) 2009 WL 385855, *2, in the context of nonjudicial foreclosure, U.C.C. is considered to be the “wrong law.” Accordingly, Plaintiffs’ contention fails as a matter of law and is subject to this Motion for Judgment on the Pleadings. D. Plaintiffs’ Causes of Action for Violation of Civil Code Sections 2923.5 and 2924, violations of the California Homeowner’s Bill of Rights, and for Lack of Standing to Foreclose Must all Fail. In addition to the above, Plaintiffs’ FAC merely asserts conclusions without any factual allegations substantiating their claims. Plaintiffs state that they are protected under Civil Code Sections 2923.5 and 2924, “which defendants have blatantly violated.” (FAC, 922.) Plaintiffs state they are protected under HBOR. (FAC, 923.) The general allegations only add conclusory statements which do nothing to provide actual facts in support of any of their claims. Furthermore, to the extent Plaintiffs allege they were not provided proper notices regarding the non-judicial foreclosure sale process of the Property, Plaintiff Leela Sinha’s filing of the 2010 Action, discussed supra, makes clear that Plaintiffs had notice of the non-judicial foreclosure sale process. VI. PLAINTIFS’ SECOND CAUSE OF ACTION FOR RESPA VIOLATIONS FAILS BECAUSE IT DOES NOT ALLEGE FACTS UPON WHICH RELIEF MAY BE GRANTED Plaintiffs’ cause of action for RESPA violations falls clearly short of sufficient allegations. The cause of action alleges that Defendant did not provide “timely acknowledgment of receipts of inquiries” nor took “timely action in response to the inquiries / QWRs.” (FAC, 926.) Plaintiffs do not allege that they sent any inquiries or qualified written requests (“QWRs”) to Defendant and do not allege when such inquiries were sent. Additionally, the cause of action cannot be stated against U.S. Bank because it is not the servicer of Plaintiffs’ loan. RESPA imposes a duty only upon a “loan servicer” to respond to QWRs. (12 U.S.C. § 2605, subd. (e)(1)(A); see also Consumer Solutions Reo, LLC v. Hillery (N.D. Cal. 2009) 658 F.Supp.2d 1002, 1013 (dismissing RESPA claim against loan owner “because § 2605(e) imposes a duty upon the loan servicer only.”).) U.S. Bank is the current owner of the Loan and not the servicer. Therefore, Plaintiffs cannot state a cause of action for RESPA violations against U.S. Bank. 1" -11- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS O O 0 NN O N nn ke 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 VII. PLAINTIFFS’ FRAUD CLAIMS FAIL Plaintiff’s third and fourth causes of action are based on purported misrepresentations and fraudulent concealment. These claims fail for the reasons set forth below. A. Plaintiffs’ Fraud Claim Lacks Specificity. The elements of fraud under California law are: (a) misrepresentation (false representation, concealment, or non-disclosure); (b) knowledge of the statement’s falsity (scienter); (c) intent to defraud (i.e., to induce action in reliance on the misrepresentation); (d) justifiable reliance; and (e) result damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Buckland v. Threshold Enters., Ltd. (2007) 155 Cal.App.4th 798, 806-07.) “General pleading of the legal conclusion of fraud is insufficient” under California law. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “Every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Ibid) “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.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Plaintiffs allege that “Wife was fraudulently made to sign the Deed of Trust because she wanted to be on the title of the property as she was before refinancing. She was assured that she was not responsible for the loan. Now her name is being dragged into foreclosure and unlawful detainer process by the current purchaser of the loan U.S. Bank...” (FAC, §5.) Plaintiffs fail to identify any fraudulent statements made, who made any such statements, and that person’s authority to speak. Furthermore, by signing the Deed of Trust and not the loan, Leeha Sinha subjected only her joint tenancy interest in the Property to the security interest on the Property and was not personally liable for the loan. B. Plaintiffs Cannot Allege Justifiable Reliance. “Reasonable diligence requires the reading of a contract before signing it.” (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674.) One who signs a contract, “is estopped from saying that its explicit provisions are contrary to his intentions or understanding.” (Estate of Anderson (1997) 60 -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS oO 0 NN a N Un Bl W N - D D DN D N D N N N N N N m a a a e m e a e d p d oo ~~ aN wn 9 w No - oo \O oo ~J aN wn EN © Nd - < Cal.App.4th 436, 442.) It is generally unreasonable to neglect to read a written agreement before signing it. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 424.) The Deed of Trust clearly delineates the effect of a party’s signature on the Deed of Trust but not the loan: 13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. ...[A]ny Borrower who co-signs this Security Instrument but does not execute the Note (a “co- signer”): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer’s interest in the Property under the terms of this Securi Tstmumment; (b) 1s not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer’s consent. (RIN, Exh. 2,913.) Plaintiffs take issue with the terms and effect of the Deed of Trust and allege that said terms and effect were misrepresented to them or concealed from them. As conspicuously stated in Paragraph 13, by signing the Deed of Trust and not the loan, Leela Sinha granted and conveyed her interest in the Property, but is not personally obligated to pay the loan. Plaintiffs cannot aver reasonable reliance on any contrary oral representations. Plaintiffs’ ignorance as to the implications of their actions and execution of the deed of trust is not grounds to file this lawsuit. C. Plaintiffs’ Fourth Cause Of Action For Fraud - Concealment Fails Because It Does Not Allege Facts Upon Which Relief May Be Granted. Plaintiff’s allegations that Defendant or its predecessors-in-interest did not have authority to record the Notice of Default and the Notice of Trustee’s Sale are legally incorrect and demonstrate Plaintiff’s lack of understanding of the provisions of the Civil Code governing the recording of the foreclosure notices. The provisions of the Civil Code “cover every aspect” of the nonjudicial foreclosure process in California and are “intended to be exhaustive.” (LE. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285; Moeller v. Lien (1994) 25 Cal. App.4th 822, 834.) Section 2924 of the Civil Code provides that when the borrower fails to make his/her contractually agreed upon payments, “[t]he trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record... a notice of default.” (Civ. -13- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS NO © 3 O N n n hk W N = N O N O N N N N N N N O N N / m o m e m e m e m e m e m e d pe a 0 N N O N nn B R A W N = O D N " R W Oo Code, § 2924, subd. (a)(1).) Here, Plaintiffs state that “[t]here is no evidence that U.S. Bank is the owner of the note with a “power of sale” in the instant case. Therefore, U.S. Bank’s standing is at best questionable, to be proven during trial.” (FAC, 7.) To the extent that Plaintiffs attempt to invalidate the Notice of Default on the grounds that U.S. Bank or its predecessor-in-interest did not provide “any proof of Agency” in the Notice of Default, Plaintiffs’ attempt is improper. The form and required contents of the notice of default are specified by statute. (Civ. Code, §§ 2924 & 2924c; Lupertino v. Carbahal (1973) 35 Cal.App.3d 742, 748.) Civil Code Section 2924 “requires that the notice of default contain ‘a statement that a breach of the obligation for which such ... transfer in trust is security has occurred, and setting forth the nature of such breach.”” (Miller v. Cote (1982) 127 Cal. App.3d 888, 894.) “[T]he statute is sufficiently complied with if the notice of default contains a correct statement of some breach or breaches sufficiently substantial in their nature to authorize the trustee or beneficiary to declare a default and proceed with a foreclosure.” (Little v. Harbor Pacific Mortgage Investors (1985) 175 Cal. App.3d 717, 720.) Contrary to Plaintiffs’ allegations, statutory provisions do not require agents of the beneficiaries to provide proofs of such agency in the Notice of Default. (See, Civ. Code, §§ 2924 & 2924c). Accordingly, Plaintiffs’ contention fails. VIII. CONCLUSION For all of the foregoing reasons, Defendant respectfully requests that the Court grant this Motion in its entirety and dismiss Plaintiffs’ First Amended Complaint with prejudice. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP Dated: November 17,2016 By: fl / Jonathan D. Fink, Esq., Lukasz I. Wozniak, Esq., John J. Daller, Esq. Attorneys for Defendant, U.S. BANK NATIONAL ASSOCIATION, not in its Individual Capacity, but Solely as Legal Title Trustee for LVS Title Trust I, erroneously sued herein as U.S. BANK NATIONAL ASSOCIATION -14- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Cielo Tucay, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On November 17. 2016, I served the within 1) DEFENDANT U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS LEGAL TITLE TRUSTEE FOR LVS TITLE TRUST I’'S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES and 2) DEFENDANT U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS LEGAL TITLE TRUSTEE FOR LVS TITLE TRUST I’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS on all interested parties in this action as follows: [X] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Sachidanand Sinha Leela Sinha 14252 Culver Drive, Ste. A Irvine, CA 92604 Plaintiff if Pro Per ssinha(@sac.us.com [X] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [X] (STATE) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on November / , 2016, at Newport Beach, California. leit, zip Cielo Tucay J 1 PROOF OF SERVICE