Judge: Lee W. Tsao, Case: 21NWCV00483, Date: 2023-05-25 Tentative Ruling


Case Number: 21NWCV00483    Hearing Date: January 25, 2024    Dept: C

TORRES v. FLEXPOINT FUNDING CORPORATION

CASE NO.:  21NWCV00483

HEARING:  01/25/24

 

#1

 

Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP’s Motion for Judgment on the Pleadings is GRANTED without leave to amend.

 

Moving Party to give notice.

 

Defendants JEANNETTE VILLEGAS and HECTOR VILLEGAS’ (“Villegas Defendants”) Joinder to Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP’s Motion for Judgment on the Pleadings is DENIED. The Villegas Defendants and the Moving Defendant are not similarly situated. It is unclear how the arguments applicable to the Moving Defendant would also identically apply to the Villegas Defendants, and the Villegas Defendants fail to assist the Court in understanding how the arguments raised by the Moving Parties can be attributed to the Villegas Defendants as well. The Villegas Notice of Joinder merely states: “[The Villegas Defendants] hereby join in the MOTION FOR JUDGMENT ON THE PLEADINGS filed by Barrett Daffin Frappier Treder & Weiss, LLP… on the gourds that the Complaint does not state facts sufficient to constitute any cause of action against any defendants.” (Joinder 1:26-2:2.)  

 

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days… before the hearing.” (CCP §1005(b).) Consequently, Plaintiff’s Opposition and the papers filed in conjunction thereto, were due to be filed and served by no later than January 11, 2024. However, Plaintiff’s Opposition Request for Judicial Notice were untimely filed without leave of court on January 19, 2024 (only four court days before the hearing). Plaintiff has a history of submitting late-filed papers with this Court. Therefore, the Court exercises its discretion under CRC Rule 3.1300(d) to disregard the late-filed Opposition.

 

A motion for judgment on the pleadings has the same function as a general demurrer, and the rules governing demurrers apply.

 

This action for quiet title was filed by Plaintiff JOEL M. TORRES (pro per) (“Plaintiff”) on July 27, 2021.

 

Plaintiff alleges that on “January 29, 2020 Defendant BDFTW as TRUSTEE the alleged SUBSTITUTE TRUSTEE purported to conduct an illegal and unauthorized foreclosure sale of Plaintiff’s PROPERTY…. [¶] Plaintiff… alleges, that said foreclosure sale of the PROPERTY was in FACT PREMATURE, or was conducted in a manner not comporting with applicable law, in violation of conditions precedent, and that the putative result thereof was that Defendants JEANNETTE VILLEGAS, HECTOR VILLEGAS allegedly ‘took’ title to the PROPERTY, under auspices of a void writing entitled ‘TRUSTEE’S DEED UPON SALE’.” (Complaint ¶¶49-50.) “Defendant BARRETT DAFFIN FRAPPIER, TREDER & WEISS, was a business enterprise operating as a professional substitute trustee in regard to conducting non-judicial foreclosure within the State of California.”

 

Plaintiff’s Complaint asserts the following causes of action: (1) Wrongful Foreclosure; (2) Cancellation of Instrument; (3) Quiet Title; (4) Violation of Homeowner Bill of Rights Cal. Civ. Code §2924(f); (5) Violation of Homeowner Bill of Rights Cal. Civ. Code §2923.5; (6) Violation of Bus. & Prof. Code §17200; and (7) Preliminary Injunction.

 

Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP (“Defendant” or “BDFTW”) moves for judgment on the pleadings as to all causes of action asserted against it in Plaintiff’s Complaint—which include the first, second, fourth, fifth, sixth, and seventh causes of action. The third cause of action is not directed towards BDFTW.

 

First Cause of Action – Wrongful Foreclosure

 

“The elements of a wrongful foreclosure cause of action are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Sciarratta v. U.S. Bank Natl. Assn. (2016) 247 Cal.App.4th 552, 562.)

 

Plaintiff’s wrongful foreclosure claim is based on his contention that Chase lacked authority to foreclose because the Assignments are void. (FAC §54 (d)-(i).) However, Plaintiff does not have standing to challenge the assignments. Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919 held that a borrower has standing to challenge an assignment post-foreclosure only where the defect in the assignment renders the assignment void rather than voidable. In Saterbak v. JP Morgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 815, the court held that such an assignment is merely voidable, not void, and that the borrower lacks standing to challenge the assignment. “Yvanova expressly offers no opinion as to whether, under New York law, an untimely assignment to a securitized trust made after the trust's closing date is void or merely voidable. (Id. at pp. 940–941, 199 Cal.Rptr.3d 66, 365 P.3d 845.) We conclude such an assignment is merely voidable. (See Rajamin v. Deutsche Bank Nat'l Trust Co. (2d Cir.2014) 757 F.3d 79, 88–89 [“the weight of New York authority is contrary to plaintiffs' contention that any failure to comply with the terms of the PSAs rendered defendants' acquisition of plaintiffs' loans and mortgages void as a matter of trust law”; “an unauthorized act by the trustee is not void but merely voidable by the beneficiary”].) Consequently, Saterbak lacks standing to challenge alleged defects in the MERS assignment of the DOT to the 2007–AR7 trust.”  (Id.) Plaintiff urges the Court to follow Glaski v. Bank of America, N.A. (2013) 128 Cal.App.4th 1079. However, Glaski has been highly criticized. After Glaski was decided, the New York trial court’s decision on which Glaski relied was overturned. (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802. 812.)

 

Moreover, to the extent Plaintiff is attempting to allege that the Assignments are void because they were robo-signed by MERS— allegations regarding “robo-signing” would render the assignment voidable and not void. (See Maynard v. Wells Fargo Bank, N.A., 2013 WL 4883202, at *9 (S.D. Cal. 2013).         

 

Based on the allegations of the Complaint and the judicially noticeable documents, it is unclear how the assignments are void.

 

The Motion for Judgment on the Pleadings as to the first cause of action is GRANTED without leave to amend.

 

Second Cause of Action – Cancellation of Instruments

 

The elements of a cause of action for instrument cancellation are (1) a written instrument; (2) a reasonable apprehension that it may cause serious injury to someone; (3) as to whom it is void or voidable. (Cal. Civ. Code §3412.)

 

The Motion for Judgment on the Pleadings to the second cause of action is GRANTED without leave to amend for the same reasons noted in the Court’s analysis under the First Cause of Action. Plaintiff has not successfully alleged that the Assignments at issue are void.

 

Fourth Cause of Action – Violation of Homeowner Bill of Rights Cal. Civ. Code §2924(f)

 

Section 2924.12(b) provides:  

After a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.  

 

Section 2924 sets forth requirements regarding the Notice of Default.  Among other things, that section provides in relevant part:  “(f) With respect to residential real property containing no more than four dwelling units, a separate document containing a summary of the notice of default information in English and the languages described in Section 1632 shall be attached to the notice of default provided to the mortgagor or trustor pursuant to Section 2923.3.”  Spanish is a language described in Section 1632.

 

Plaintiff alleges that Defendants failed to comply with the requirements of Section 2924(f) by failing “to notify Plaintiff of any action taken against his property in Plaintiff’s language.” (Complaint ¶121.)

 

To state a claim for a violation of a statute, facts sufficient to establish every element must be pleaded with particularity.  (See, e.g., 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.”))  Here, with respect to the claim that Defendants or their agents failed to engage in sufficient efforts to communicate with the Plaintiff, the Complaint fails to allege specific facts regarding whether and how Defendants or their agents attempted to communicate with Plaintiff or otherwise engaged in due diligence. 

 

Further, the remedy provisions of HBOR provide remedies only for “material” violations.  (See, e.g., Coury v. Caliber Home Loans, Inc., 2016 U.S. Dist. LEXIS 164512 (N.D. Cal. Nov. 29, 2016).  Moreover, where, as here, the foreclosure has already occurred, recovery is limited to actual economic injury. The Complaint fails to allege facts with specific particularity regarding the materiality of this violation or how the alleged violation caused actual economic injury. 

 

The Motion for Judgment on the Pleadings as to the Fourth Cause of Action is GRANTED without leave to amend.

 

Fifth Cause of Action – Violation of Cal. Civ. Code §2923.5

 

“A borrower may state a cause of action under [Civil Code] section 2923.5 by alleging the lender did not actually contact the borrower or otherwise make the required efforts to contact the borrower despite a contrary declaration in the recorded notice of default. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1494.) However, for violation of Cal. Civ. Code §2923.5, “the sole available remedy is ‘more time’ before a foreclosure sale occurs. After the sale, the statute provides no relief.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) Here, the foreclosure sale has already occurred. Therefore, a remedy under Cal. Civ. Code §2923.5 is not available. The Motion for Judgment on the Pleadings as to the Fifth Cause of Action is GRANTED without leave to amend.

 

Sixth Cause of Action – Unfair Competition

 

To state a claim under §17200, a Plaintiff must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiff must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant; or an omission in violation of defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiff must allege that one or more of Defendant’s business practices are unfair, unlawful or fraudulent; and the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiff must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].) 

 

In light of the Court’s rulings above, the Motion for Judgment on the Pleadings as to the Sixth Cause of Action is GRANTED without leave to amend.  

 

Seventh Cause of Action – Preliminary Injunction  

 

A preliminary injunction is a remedy, not a cause of action. “[A] preliminary injunction may be sought only when the underlying cause of action on which the provisional remedy rests is presented for decision through the pleadings.” (Dept. of Fair Employment and Housing v. Sup. Ct. of Kern County (2020) 54 Cal.App.5th 356, 384.) Consequently, and given the Court’s analyses pertaining to the causes of action above, the Motion for Judgment on the Pleadings as to the Seventh Cause of Action is GRANTED without leave to amend.