Judge: Peter A. Hernandez, Case: KC066328, Date: 2022-09-28 Tentative Ruling

Case Number: KC066328    Hearing Date: September 28, 2022    Dept: O

Wells Fargo Bank, National Association’s Motion to Substitute Wells Fargo Bank, National Association as Party Plaintiff is DENIED without prejudice.

Background   

Plaintiff Primary Financial Services (“PFS”) alleges as follows:

On or about December 7, 2006, Preferred Door Services, Inc. (“Preferred”) submitted a Business Direct Credit Application (“Application”) to Wells Fargo Bank, N.A. (“WF”) for a WF business line of credit. WF approved the Application and Preferred executed and delivered to WF a Business Direct Credit Application – Agreement and Personal Guarantee (“Agreement”). Raymond W. Thorsky (“Defendant”) executed a written guaranty. WF thereafter sold the Agreement and assigned same to CBV Collection Services (“CBV”); CBV, in turn, assigned the Agreement to PFS. Defendant is in default by failing to make payments due.

On September 16, 2013, PFS filed a complaint, asserting causes of action against Defendant and Does 1-10 for:

1.                  Breach of Guaranty

2.                  Indebtedness

3.                  Unjust Enrichment

4.                  Account Stated

On December 4, 2013, Thorsky’s default was entered. On March 27, 2014, default judgment was filed.

Legal Standard

“An action or proceeding does not abate by the transfer of an interest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.” (Code Civ. Proc., § 368.5.)

Discussion

WF moves the court for an order substituting itself as the party plaintiff on the basis that it is the assignee of PFS.

WF has provided a declaration from its Loan Workout Associate Manager, William Ocampo (“Ocampo”). Ocampo represents that WF was Defendant’s original creditor and that, prior to the filing of the complaint herein, WF sold and assigned its rights to CBV, which in turn assigned it to PFS for servicing. (Ocampo Decl., ¶ 5.) Subsequently, on or about December 15, 2014, CBV sold back to WF its rights as to Defendants. (Id., ¶ 6, Exh. 1.)

The motion is denied without prejudice. Ocampo has not addressed the “Assignment and Bill of Sale” dated January 3, 2012 and attached as Exhibit 3 to the complaint. Exhibit 3 does not indicate that the account was being assigned for servicing. Further, Exhibit 1 to Ocampo’s declaration does not specifically reference the subject account or attach the referenced Account Schedule.