Judge: Nick A. Dourbetas, Case: 2020-01159569, Date: 2022-08-19 Tentative Ruling
Demurrer to Amended Complaint
The Demurrer by Defendants NewRez, LLC, dba Shellpoint Mortgage Servicing, and The Bank of New York, Mellon, as Trustee for the Certificate holders of the CWALT, Ind. Alternate Loan Trust 2005-41 Mortgage Passthrough Certificates Series 2005-41 to Plaintiff’s Second Amended Complaint (“2ndAC”) is SUSTAINED in part, and OVERRULED in part. (See Code Civ. Proc. § 430.10, subd (e).)
The demurrer is overruled as to the second and fourth causes of action.
The demurrer as to the first cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing that defendants recorded a notice of default, notice of trustee’s sale, or held a trustee’s sale while plaintiff’s application or a loan modification was pending, or threatened to conduct the same.
The demurrer as to the third cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing that the servicer is not an entity subject to Civil Code, section 2924.18, subdivision (b) and defendants failed within 5 business days of recording the Notice of Default to send a written communication to borrower that complies with the requirements of Civil Code, section 2924.9, subdivisions (a)(1) – (a)(3).
The demurrer to the fifth cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing defendants recorded a notice of default, notice of trustee’s sale, or held a trustee’s sale before the earlier of: (a) 31 days after notification of the denial without the borrower making an appeal; or (b) before denial of the appeal.
The demurrer to the sixth cause of action is sustained without leave to amend on the grounds that the 2ndAC fails to allege facts showing defendants had a duty of due care in connection with consideration of plaintiff’s loan modification. (See Sheen v. Wells Fargo Bank, NA (2022) 12 Cal.5th 905, 921-22.)
The demurrer as to the seventh cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing the predicate fraudulent, unlawful, or unfair business conduct by Defendants and that Plaintiff’s injury in fact (the potential loss of her real property to foreclosure) was the result of Defendants’ conduct as opposed to her all but conceded default in repayment of the loan. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497 [overruled on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.)
The demurrer to the eighth cause of action is sustained with leave to amend on the basis that the 2ndAC fails to allege facts as to the elements of the instrument is valid on its face, the instrument is void or voidable, the instrument was in existence or under Defendant’s possession and control when the action was filed, and if the instrument is voidable, rather than void, that the plaintiff acted promptly to rescind.
Plaintiff to file an amended complaint within twenty days.
The court is not inclined to grant further leave to amend.
Defendants to give notice.