# 17 TENTATTIVE RULING 9:15 a.m., Wednesday, February 26, 2025

MARTIN OROZCO, TRUSTEE OF THE MARTIN OROZCO TRUST v. WILMINGTON SAVING FUND SOCIETY, et al. [24STCV13747]

DEMURRER by DEFENDANT WILMINGTON SAVING FUND SOCIETY, FSB, AS OWNER OF TRUSTEES OF THE RESIDENTIAL CREDIT OPPORTUNITIES TRUST VI-A

MEET AND CONFER: DEFECTIVE (Defendant’s counsel declares she attempted to meet and confer telephonically with Plaintiff, who indicated he is represented by counsel. Upon receipt of the information for Plaintiff’s purported counsel, Defendant’s counsel was informed that the individual identifying as Plaintiff’s counsel is not an attorney. Defendant’s counsel has not been contacted further by Plaintiff or by any counsel representing Plaintiff. Thus, parties have failed to meet and confer in compliance with CCP § 430.41. (Catron Decl., ¶ 4-6.))

BACKGROUND: Complaint alleges fraudulent and unlawful loan practices and wrongful foreclosure

TIMELINE:

[The Complaint uses the term “Plaintiff” interchangeably to mean both Martin 

Orozco, as an individual and as Trustee of the Martin Orozco Trust (the latter 

is the named Plaintiff). Hereinafter, unspecified references to “Plaintiff” 

reflect a lack of specificity in the Complaint itself. Likewise, unspecified

references to “Defendants” also reflect a lack of specificity in the Complaint.]

6/23/2005: Non-party Miriam Perez (“Perez”) obtains a loan (the “Perez Loan”) in the amount of $441,000 from non-party New Century Mortgage Corporation, secured by Deed of Trust located at 2853-2855 ½ E. 6th St., Los Angeles, CA (the “Property”). (RJN, Exh. 1.)

8/24/2005: Perez executes a Grant Deed transferring the Property to non-party John Martinez (“Martinez”), which is recorded. (Id., Exh. 2.) 

Circa 2006 : Plaintiff purportedly purchases the Property via Deed of Trust and a Note. (Compl., ¶ 7.) Defendant Wilmington Saving Fund Society, FSB, as Owner of Trustees of the Residential Credit Opportunities Trust VI-A (“Wilmington”) is purportedly the lender for the Note.  (Ibid.)

3/28/2006: Martinez executes a grant deed transferring the Property to Martin Orozco, as an individual (“Orozco”). (RJN, Exh. 3.)

2/7/2007: Defendants allegedly make false statements to induce Plaintiff to fund a loan, for which Orozco’s personal residence would be security. Plaintiff allegedly executes a Deed of Trust, with Wilmington as lender. (Compl., ¶ 17.) Wilmington causes Mortgage Electronic Registration Systems (“MERS”) to go on title for the purported loan as the “Nominee Beneficiary,” but allegedly fails to disclose the true beneficiary.

2/12/2008: Non-party NDEx West, LLC (“NDEx West”) records a Notice of Default against the Property. (RJN, Exh. 4.) Perez is named as the “Trustor” on this document. 

7/15/2008: Plaintiff allegedly defaults on his loan in conjunction with Martinez and Perez. (Compl., ¶ 11.)

2/2/2009: NDEx West records another Notice of Default against the Property. (RJN, Exh. 5.) Perez is again named as the “Trustor.” 

4/20/2009: Defendants allegedly record an “invalid” Notice of Trustee’s Sale (the “2009 Notice”). (Compl., ¶ 12.) 

6/30/2009: The Deed of Trust for the Perez Loan is assigned to non-party Deutsche Bank National Trust Company. (RJN, Exh. 6.)

5/28/2019: A Notice of Default is recorded for the Perez Loan. (Id., Exh. 12.)

7/22/2020: Deutsche Bank assigns the Deed of Trust for the Perez Loan to U.S. Bank, N.A. (Id., Exh. 7.)

12/8/2021: Orozco executes a deed purporting to transfer the Property to Plaintiff Martin Orozco, as Trustee of the Martin Orozco Trust (“Trustee-Plaintiff”). (Id., Exh. 9.)

3/24/2022: The Deed of Trust for the Perez Loan is assigned to Wilmington. (Id., Exh. 8.)

6/30/2022: A Notice of Trustee’s Sale is recorded in connection to the Property, again naming Perez as Trustor. (Id., Exh. 10.)

9/16/2022: The Trustee’s Deed Upon Sale is recorded, reflecting Wilmington’s ownership of the Property. (Id., Exh. 11.)

6/3/2024: Trustee-Plaintiff files the Complaint, alleging causes of action for: 

1. Violation of Civil Code § 2923.6

2. Violation of Bus. & Prof. Code § 17200

3. Breach of Covenant of Good Faith and Fair Dealing

4. Injunctive Relief

5. Violation of Civil Code § 1572

6. Fraud

7. Declaratory Relief

8. Intentional Misrepresentation

9. To Set Aside a Defective and Wrongful Foreclosure 

12/13/2024: The Court sustains MERS’s Demurrer to the 1st, 2nd, and 4th through 9th causes of action in the Complaint with leave to amend. Trustee-Plaintiff does not file an amended Complaint. MERS is dismissed from the action with prejudice on 1/15/2025. 

1/21/2025: Wilmington files this Demurrer to the Complaint. As of 2/25/2025, Trustee-Plaintiff has not filed an Opposition.

TENTATIVE RULING: DEMURRER OF DEFENDANT WILMINGTON SAVING FUND SOCIETY, FSB, AS OWNER OF TRUSTEES OF THE RESIDENTIAL CREDIT OPPORTUNITIES TRUST VI-A is SUSTAINED with LEAVE TO AMEND.

I. DEMURRER

Wilmington demurs to each cause of action in the Complaint on the grounds of (1) uncertainty and (2) failure to state facts sufficient to constitute the causes of action against Wilmington. (CCP § 430.10(e)-(f).) 

A. Standing 

The Complaint fails to allege facts sufficient to demonstrate Trustee-Plaintiff has standing to bring the causes of action alleged in the Complaint. First, neither Trustee-Plaintiff nor the Martin Orozco Trust (the “Trust”) are parties to or borrowers under the Perez Loan. (RJN, Exh.s 1, 4-5). However, the Complaint indicates that there may have been another loan for the purchase of the Property executed in 2006 or 2007 by either Trustee-Plaintiff or Orozco in his individual capacity. (Compl., ¶¶ 7, 17.) If true, more facts must be pled to clarify both the existence and terms of any additional loan purportedly executed by Trustee-Plaintiff. Second, it is not clear that Trustee-Plaintiff had any interest in the Property at the time of Wilmington’s alleged misconduct. While Trustee-Plaintiff alleges that Wilmington’s fraudulent conduct occurred around 2006 or 2007, the judicially noticed documents demonstrate that Trust did not acquire an interest in the Property until 2021. (RJN, Exh. 9.) Further, even if Trustee-Plaintiff had some interest in the Property at the time of the alleged wrongful foreclosure, the Complaint lacks certainty as to when the purported foreclosure occurred. Third, Trustee-Plaintiff cannot act in pro per to represent the Trust. A non-attorney trustee's representation of a trust in litigation generally constitutes unauthorized practice of law. (Ziegler v. Nickel (1998) 64 Cal. App. 4th 545, 549.) An exception to this rule exists where the trustee is both the trust's sole settlor and beneficiary because the trustee would not be appearing in a representative capacity. (Aulisio v. Bancroft (2014) 230 Cal. App. 4th 1516, 1524.) Here, however, Trustee-Plaintiff has not alleged that Orozco is both the sole settlor and beneficiary. In fact, the Complaint’s Verification Statement alludes to multiple officers of the Trust. (Compl., p. 48.) In order to establish that Trustee-Plaintiff may properly appear in pro per, the Complaint must allege additional facts indicating the applicability of an exception to the rule against non-attorney trustees acting in pro per. Taken together, these various pleading defects indicate that Trustee-Plaintiff has not sufficiently alleged standing to assert the instant claims. 

B. Uncertainty

The Court finds the Complaint is uncertain, as Wilmington cannot reasonably respond to the allegations against it. A plaintiff is required to “set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action.” (Elder v. Pac. Bell Tel. Co. (2012) 205 Cal.App.4th 841, 858.) Here, the Complaint is unclear as to what Wilmington allegedly did or did not do with respect to Orozco, the Trust, or Trustee-Plaintiff and when this wrongdoing occurred. The Complaint is also unclear as to how Wilmington is involved in the purported foreclosure, the 2009 Notice, and any purported Loan to which Trustee-Plaintiff is a direct party. For example, the Complaint alleges Wilmington “did not disclose to Plaintiff the terms and conditions of the repayment” of an unidentified loan and that Wilmington represented that “said employees and/or agents could work-around the fact that Plaintiff’s credit was not in good standing and could get Plaintiff approved for the loan” without identifying any specific employees/agents, time periods, or further factual details clarifying the circumstances of these alleged communications. (Compl., ¶¶ 13-14.) Likewise, Trustee-Plaintiff alleges that without Trustee-Plaintiff’s knowledge, Wilmington transferred a “purported notice” to MERS, and prevented negotiations between Plaintiff and Wilmington. (Id., ¶¶ 16, 18.) The Complaint’s vague allegations against Wilmington do not adequately apprise Wilmington of the factual bases for Trustee-Plaintiff’s claims. Even further, the Complaint often refers to “Defendants” collectively without clearly implicating Wilmington itself in much of the alleged wrongdoing. At minimum, to survive the demurrer stage, Trustee-Plaintiff must plead each cause of action with more factual specificity to acquaint Wilmington to the nature, source, and extent of its purported liability. (Elder, supra, 205 Cal.App.4th at 858.) 

Based on the above analysis, Wilmington’s Demurrer to the entire Complaint, and each cause of action therein, is SUSTAINED with LEAVE TO AMEND.

II. REQUEST FOR JUDICIAL NOTICE

Wilmington requests judicial notice of 12 publicly recorded documents related to the Property and the Perez Loan, including: a Deed of Trust (Exh. 1), three Grant Deeds (Exhs. 2-3, 9), three Notices of Default (Exhs. 4-5, 12), three Assignments of Deed of Trust (Exhs. 6-8), a Notice of Sale (Exh. 10), and a Trustee’s Deed Upon Sale (Exh. 11). “A court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App. 4th 743, 755; See also Cal-American Income Property Fund II v. County of L. A. (1989) 208 Cal.App.3d 109, 112, fn. 2 (taking judicial notice of recorded deed where parties referenced the deeds in the context of foreclosure proceedings.)) Trustee-Plaintiff does not object to the requests and the Complaint places these records at issue. Therefore, Wilmington’s request for judicial notice is GRANTED. 

Defendant Wilmington Saving Fund Society, FSB, as Owner of Trustees of the Trustees of the Residential Credit Opportunities Trust VI-A to serve notice of ruling.  This tentative ruling (“TR”) shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel on 2/26/25 at 8:30 a.m.