Demurrer CLM

Cal. Super. - 2nd Dist.May 22, 2015

123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION August 19, 2015 08/25/2015 08:20:00 AM DEPT.: 43 COUNTY OF VENTURA JUDICIAL OFFICER: Kevin DeNoce CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited Other Real Property 56-2015-00467824-CU-OR-VTA ZOPPE VS. OCWEN LOAN SERVICING LLC Demurrer (CLM) - of Defendant OCwen Loan Servicing LLC to pltf's complaint; Memo of p&a's in support CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/10/2015 stolo With respect to the below scheduled tentative ruling, no notice of intent to appear is required. If you wish to submit on the tentative decision, you may submit a telefax to Judge DeNoce's secretary, Hellmi McIntyre at 805-662-6712, stating that you submit on the tentative. Do not call in lieu of sending a telefax, nor should you call to see if your telefax has been received. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. This case has been assigned to Judge DeNoce for all purposes. Absent waiver of notice and in the event an order is not signed at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the court. A "notice of ruling" in lieu of this procedure is not authorized. ______________________________________________ The court's tentative ruling is as follows: Grant Ocwen's request for judicial notice. SUSTAIN THE DEMURRER. The complaint does not allege any facts to support any cause of action. The Court will entertain comments as to whether the demurrer should be sustained with or without leave to amend. Discussion: Demurrer is only appropriate where the grounds for objection appear on the face of the complaint or from any matter of which the court is required to or may take judicial notice. CCP § 430.30(a). For the purpose of a demurrer, the court must treat all properly pleaded facts as admitted. Blank v Kirwan (1985) 39 Cal.3d 311, 318. Ocwen requests judicial notice of various recorded documents. The court may take judicial notice of their existence and legal effect. Fontenot v Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264. The complaint admits that plaintiff is in default. However, plaintiff alleges that the signature of Tamika Smith, an employee of defendant Western Progressive, is forged on either the Notice of Default or the Notice of Trustee's Sale because they don't match. He alleges this violates an April, 2014 federal consent judgment regarding robosigning and forgery. Plaintiff alleges that Ocwen never filed any document indicating it reviewed the foreclosure documents for integrity, citing Civ.Code § 2924(a)(6). Plaintiff alleges he attempted to tender the reinstatement amount in September, 2014, but was unable to do so. Plaintiff further alleges that during his Chapter 13 bankruptcy case, Ocwen did not submit a proof of claim by the deadline; instead, it merely provided copies of the Deed of Trust three months late and never provided a copy of the note. Plaintiff requests "judicial review of 'the note.'" The fraud attachment to the complaint alleges that in September, 2014, Ocwen made a misrepresentation by delivering a Notice of Trustee's Sale with a forged signature. Plaintiff also alleges that Ocwen concealed the forgery. In reliance, plaintiff believed the foreclosure action was in good faith and has been "financially and emotionally injured by initiating legal action." Ocwen argues that the fraud claim is not alleged with specificity. It argues that plaintiff's claim that Smith's signature was forged or lacked authority is speculation made without personal knowledge. In addition, Ocwen argues that plaintiff has not alleged any prejudice or injury as a result. At worst, plaintiff's allegations make the TENTATIVE RULINGS Page: 1 CASE NUMBER: CASE TITLE: ZOPPE VS. OCWEN LOAN SERVICING LLC 56-2015-00467824-CU-OR-VTA sale voidable and he must tender. Ocwen points out that it is not required to demonstrate possession of the note before foreclosing. Finally, Ocwen argues that allegations regarding the Notice of Trustee's Sale are moot as a new Notice was recorded on 4/21/15. According to the recorded documents, a Deed of Trust was recorded on 9/15/04. (RJN, Ex. 1). Ultimately, Ocwen became the beneficiary and Western Progressive became the trustee. A Notice of Default was recorded on 3/27/14 by Western Progressive. (RJN, Ex. 5). A Notice of Trustee's Sale was recorded 8/27/14 by Western Progressive with a sale date of 9/24/14. (RJN, Ex. 6). Another Notice of Trustee's Sale was recorded on 4/21/15 with a sale date of 5/27/15. (RJN, Ex. 7). This action was filed on 5/22/15. With regard to Ocwen's tender argument, "[a] number of courts have explicitly held that the tender rule applies only in cases seeking to set aside a completed sale, rather than an action seeking to prevent a sale in the first place." Pfeifer v Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1280. There being no evidence the foreclosure sale has occurred, plaintiff is not required to tender. Plaintiff doesn't have a cause of action for wrongful foreclosure. "'An action for the tort of wrongful foreclosure will lie [only] if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor's or trustor's part which would have authorized the foreclosure or exercise of the power of sale.' However, plaintiff is unable to assert that no breach of performance occurred. Without such an assertion plaintiff is unable to raise a wrongful foreclosure claim ... Therefore, plaintiff fails to meet his burden in pleading a claim for wrongful foreclosure, and the presumption is that defendants had the right to foreclose." Parcray v. Shea Mortg. Inc. (E.D.Cal.,2010) 2010 WL 1659369. Nor has plaintiff adequately alleged a cause of action for fraud. In particular, he has not alleged how he relied on any forgery to his detriment, merely stating that it caused him to believe the foreclosure action was in good faith. It was as he admits he was in default. To the extent plaintiff is alleging Ocwen did not comply with the foreclosure statutes, he only cites one: No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. No agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest. Civ.Code § 2924(a)(6). This merely means that a Notice of Default must be recorded by the beneficiary or its agent, or the trustee, and that any agent or trustee must act under authority of the beneficiary. The Notice of Default was recorded by the trustee and there is no allegation it wasn't acting under the authority of Ocwen, the beneficiary. Ocwen is not required to be in possession of the note and plaintiff is not permitted to maintain an action to determine who is. Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155. With regard to the signatures, far from being "obviously an intentional forgery," the signatures appear to be almost identical. If their appearance is the sole fact upon which plaintiff relies, that is not sufficient. In light of all this, plaintiff has failed to state a cause of action and the demurrer should be sustained. TENTATIVE RULINGS Page: 2