Judge: John J. Kralik, Case: 23BBCV02873, Date: 2024-03-01 Tentative Ruling

Case Number: 23BBCV02873    Hearing Date: March 1, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff Maria Fletcher (“Plaintiff”) alleges that she is the owner of the real property located at 12720 Burbank Blvd., #222, Valley Village, CA 91607, which she uses as her personal, principal residence.  Plaintiff alleges that Defendant Capital Benefit, Inc. (“CBI”) is the current loan servicer of the mortgage loan subject to this action and that Defendant Daniel J Belshaw (“Belshaw”) is the beneficiary of the mortgage loan.  

Plaintiff alleges that on July 22, 2021, she obtained a mortgage loan on the subject property from Belshaw in the amount of $350,000, memorialized by a Deed of Trust (“DOT”) with an undisclosed maturity date.  The DOT lists the trustee as S.B.S. Trust Deed Network (“SBS”).  She alleges that on February 3, 2023, a Notice of Default and Election to Sell Under the Deed of Trust (“NOD”) was recorded.  Plaintiff alleges that on May 11, 2023, a Notice of Trustee’s Sale (“NOTS”) was recorded, which set the date for the sale on June 7, 2023 and the property was sold that date.  Plaintiff alleges that trustee SBS gave her loans, which would make it a conflict of interest and that CBI got the loan approved via SBS.  (Compl., ¶13.)  Plaintiff alleges that she was $15,907.20 in arrears, but was in the process of selling the home to pay off the mortgage and keep equity, and was in a 21-day escrow.  Plaintiff alleges that the lender knew of this arrangement, but continued with the foreclosure.  Plaintiff alleges that SBS was the trustee of several loans taken out by Plaintiff and was aware of the circumstances, but offered no modification or alternatives to foreclosure.  Plaintiff alleges she submitted a Complete Request for Mortgage Assistance (“RMA”) to Belshaw and requested a single point of contact (“SPOC”).  She alleges that CBI and Belshaw refused to consider modifying the loan, did not assign a SPOC, there was no written acknowledgement of the RMA with 5 days of receipt, they did not offer any alternatives to foreclosure, and there was no denial letter or right to appeal sent.  (Id., ¶17.) 

The complaint, filed December 5, 2023, alleges causes of action for: (1) violation of Civil Code, § 2923.5; (2) violation of Civil Code, § 2923.6(c); (3) violation of Civil Code, § 2923.7; (4) violation of Civil Code, § 2924.9; (5) violation of Civil Code, § 2924.10; (6) wrongful foreclosure; and (7) unfair business practices, violation of Business & Professions Code, § 17200 et seq.

B.    Demurrer on Calendar

On December 28, 2023, Defendants CBI and Belshaw filed a demurrer to each cause of action alleged in the complaint.   

On February 16, 2024, Plaintiff filed an opposition brief.

On February 15, 2024, Defendants filed a reply brief.

DISCUSSION

Defendants demur to the complaint generally, arguing that the loan in this action does not fall under any of the categories pursuant to Civil Code, § 2924.15 because the loan documents Plaintiff signed stated that the property was not secured by an owner-occupied residential real property and the loan was not made for personal, family, or household purposes. 

The demurrer in large part relies on exhibits attached to the demurrer papers, such as the Declaration of Non-Owner Occupancy and Investor Approval and Advisory.   However, there is no request for judicial notice accompanying the demurrer papers.  (There is also no declaration authenticating the documents and, even if there were, the Court could not consider these documents at the pleading stage.)  The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.  (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)  The documents attached to the demurrer papers were not provided as exhibits to the complaint, nor were they referred to in the complaint.  Thus, Defendants’ arguments that rely on documents extrinsic to the pleading shall not be considered at this time.  Such arguments are better raised at the summary judgment stage or at trial, where the trier of fact may consider such evidence.

Thus, based on the arguments raised by Defendants in this demurrer to the complaint, the demurrer is overruled. 

CONCLUSION AND ORDER

Defendants Capital Benefit, Inc. and Daniel J Belshaw’s demurrer to the complaint is overruled.  Defendants are ordered to answer.