Judge: David A. Hoffer, Case: 30-2022-1264593, Date: 2022-11-07 Tentative Ruling

Before the Court are the Demurrer and Motion to Strike filed on 7/12/22 by Defendants Select Portfolio Servicing, Inc. and U.S. Bank National Association, etc. (the “Defendants”) as to the original Complaint filed by Plaintiffs Severo Tlatenchi Blanco and Mayra Tlatenchi (“Plaintiffs”) on 6/13/22.

The Demurrer is SUSTAINED without leave to amend on the Second Cause of Action, as Plaintiffs have abandoned that  claim. (See ROA 47, at p. 1, lines 11-12 [“Plaintiffs will cease to pursue causes of action for Violation of 2924(a)(1)”].)  The Demurrer as to the remaining causes of action is also SUSTAINED, but with twenty days leave to amend. 

As a threshold matter, the Demurrer asserts that all of the claims presented in this action are barred based on judicial estoppel because Plaintiffs previously filed bankruptcy petitions (see RJN Exs. 17-24) which did not disclose the existence of any of these claims. Nondisclosure in prior bankruptcy proceedings may indeed bar subsequent claims. (See e.g. Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 151 [“it appears to be a universal rule that the failure to disclose a potential lender liability claim in a bankruptcy action precludes subsequent prosecution of such an action”], and Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1605 – 1609 [where borrower failed to disclose claims against the lender in a bankruptcy action, the unlisted claim was barred].)  Yet the Opposition here has failed to respond to this argument at all, which suggests that Plaintiffs concede that it has merit. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) The Demurrer as to the entire balance of the action is thus sustained on this basis. However, as Plaintiffs may be able to plead facts to demonstrate that no such bar should apply here, the Court will grant leave to amend to allow them to attempt to do so.

Greater particularity is also required for the statutory claims presented. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [ general rule is “that statutory causes of action must be pleaded with particularity.”].)  The Complaint as pled makes some initial factual assertions but then fails to meaningfully articulate the specific facts which support each statutory cause of action as pled.  It also fails to address the impact on each claim of what appears to be an admission that a prior loan modification had been provided. (See Complaint ¶ 20 [“it appears it was modified in the HAMP program as it has a large deferred amount added to the end of the loan”].)  That needs to be addressed.

The Opposition also seems to be asserting that a foreclosure has occurred. (See ROA 47 at p. 2 [“Plaintiffs have endured the strife that comes with negligent servicing… and he lost his home”] and at p. 16 [“she suffered wrongful foreclosure… the loss of Plaintiffs’ home was a direct result of the Defendants’ breach…”]; but see p. 3 [“They now face an imminent wrongful foreclosure”].)  Yet the Complaint does not so state, and instead seeks, among other things, injunctive relief to prevent foreclosure. (See Prayer at ¶ 3.)  As the facts as alleged do not appear to comport with the facts as asserted in the Opposition presented here, that also needs to be addressed..

Defendants’ unopposed Request for Judicial Notice is GRANTED under Ev. Code § 452(c), as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

In light of the ruling above on the Demurrer, the Motion to Strike is MOOT. 

Counsel for Defendants is ordered to give notice of this ruling.