Judge: Virginia Keeny, Case: 24STCV28276, Date: 2025-06-10 Tentative Ruling
Case Number: 24STCV28276 Hearing Date: June 10, 2025 Dept: 45
NICOLE ALEXANDRA FERYANITZ vs
SELECT PORTFOLIO SERVICING, INC., et al.
demurrer and motion to stay or consolidate
Date
of Hearing: June
10, 2025 Trial
Date: N/A
Department: 45 Case No.: 24STCV28276
BACKGROUND
On October 29, 2024, Nicole Alexandra
Feryanitz filed a complaint against Defendants Select Portfolio Servicing,
Inc., MTC Financial Inc. dba Trustee Corps, Athas Capital Group, Malcolm
Cisneros, and all persons claiming legal, equitable and lien in the property
located at 21231 Dove Circle, Huntington Beach, California for cancellation of
trustee sale, cancellation of trustee deed upon sale, unfair business practices,
declaratory relief, and quiet title.
[Tentative] Ruling
Plaintiff’s Motion to Stay or
Consolidate is DENIED.
Defendant Select Portfolio Servicing,
Inc.’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.
discussion
I.
PLAINTIFF’S MOTION TO STAY OR
CONSOLIDATE
Plaintiff
Nicole Alexandra Feryanitz moves the court to stay further prosecution of UD
case Number 30-2024-01447925-CL-UD-CJC and/or consolidate the same with
Plaintiff’s instant civil action.
Code of
Civil Procedure section 1048 grants discretion to the trial courts to
consolidate actions involving common questions of law or fact. The trial
court's decision will not be disturbed on appeal absent a clear showing of
abuse of discretion. A consolidation of actions does not affect the rights of
the parties. The purpose of consolidation is to avoid unnecessary costs or
delay, avoid duplication of procedure, particularly in the proof of issues
common to both action, and avoid inconsistent results by hearing and deciding
common issues together. (See Estate of Baker (1982) 131 Cal.App.3d 471,
485.) The granting or denial of a motion to consolidate rests in the trial
court's sound discretion, and will not be reversed except upon a clear showing
of abuse of discretion. (Feliner v. Steinbaum (1955) 132 Cal.App.2d 509,
511.) Each case presents its own facts and circumstances, but the court
generally considers the following: (1) timeliness of the motion: i.e., whether
granting consolidation would delay the trial of any of the cases involved; (2)
complexity: i.e., whether joining the actions involved would make the trial too
confusing or complex for a jury; and (3) prejudice: i.e, whether consolidation
would adversely affect the rights of any party. (See State Farm Mut. Auto.
Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430–431.)
The
court DENIES the motion to consolidate. The UD action is by Athene and relates
only to possession as Athene seeks possession of the Property where Plaintiff
still resides. As noted by Defendant, Athene and Life Company have not been
named as a defendant in the civil action. Moreover, this civil action involves
violation of HBOR whereas the UD action involves issues of possession of the
subject property. Plaintiff fails to explain how her due process rights would
be violated if the cases are not consolidated or if the UD Action is not
stayed.
II.
DEFENDANT’S DEMURRER TO THE COMPLAINT
Defendant Select Portfolio Servicing,
Inc. demurs to the First Amended Complaint on the grounds the first, second,
third and fourth causes of action fail to state facts sufficient to constitute
a cause of action against Defendant.
Request for Judicial Notice
Defendant requests this court take
judicial notice of the following documents: (1) Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing recorded in the Official Records
of Orange County on September 21, 2022, as Instrument No. 2022000313071; (2) Grant
Deed recorded in the Official Records of Orange County on April 10, 2024, as
Instrument No. 2024000089593; and (3) Notice of Default and Election to Sell
Under Deed of Trust recorded in the Official Records of Orange County on December
20, 2023, as Instrument No. 2023000312994.
The court GRANTS the request for
judicial notice as to the existence of these documents.
Standing
Defendant demurs to the complaint on the
grounds Plaintiff does not have standing to assert any of her claims under
HBOR.
Section 2924.15(a) of the HBOR apply
only to first mortgages or deeds of trust secured by “owner-occupied”
residences containing fewer than five dwelling units. “Owner-occupied” is
defined to mean “that the property is the principal residence of the borrower
and is security for a loan made for personal, family, or household purposes.”
(Civ. Code, § 2924.15(a).)
Plaintiff does not plead that the
Property is her primary residence. Rather, she alleges she is the equitable
owner of the subject property. This is insufficient to support a claim for
violation of HBOR.
The court SUSTAINS the demurrer on these
grounds.
Cancellation of the Trustee Sale and
Trustee’s Deed Upon Sale
Defendant demurs to the two causes of
action on the grounds the allegations are conclusory and Plaintiff does not
allege any facts that the Trustee’s Deed Upon Sale is invalid.
To plead a right to cancellation of an instrument, a plaintiff
must allege the instrument is “void or voidable” and would cause “serious
injury” if not canceled. (Saterbak v. JPMorgan Chase Bank, N.A. (2016)
245 Cal.App.4th 808, 818-19.)
The complaint alleges Defendants never had the legal authority to
foreclose because their interest was never acknowledged and recorded in
violation of Civil Code section 2923.5 and Deed of Trust was improperly
assigned and/or transferred to Defendants from the original lender. (Compl.
¶22-23.) Defendant argues Plaintiff offers no specific facts pointing out the
reasons for asserting that the sale and “Trustee’s Deed Upon Sale” are actually
invalid. Plaintiff does not even allege the date that the purported “Trustee’s
Deed Upon Sale” was recorded or provide the instrument number. In addition, Civil Code section 2923.5 is only
available before the foreclosure sale occurs. (Stebley v. Litton Loan
Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) Plaintiff alleges the
property was sold July 22, 2024. (Compl. ¶17.)
Accordingly, the demurrer is SUSTAINED with leave to amend.
Unfair Business Practices
Defendant demurs to the unfair business practices claim on the
grounds it is derivative and therefore fails for the same reasons as above.
A plaintiff alleging an “unfair” business practice under the UCL
must show that the defendant's conduct is “tethered to an underlying
constitutional, statutory or regulatory provision, or that it threatens an
incipient violation of an antitrust law, or violates the policy or spirit of an
antitrust law.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 613.) UCL actions for “unlawful” conduct may be based on violations
of other statutes.¿ (See¿Klein v. Chevron U.S.A., Inc. (2012) 202
Cal.App.4th 1342, 1383.) However, the UCL “is not an all-purpose
substitute for a tort or contract action” (Cortez v. Purolator Air
Filtration Products Co. (2000) 23 Cal.4th 163, 173), and “damages are not
available…” (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211
Cal.App.3d 758, 774, citations omitted).
The court agrees the allegations are insufficient. Plaintiff
alleges Defendants engaged in unfair business practices because their conduct
was immortal, unethical, oppressive and so on. (Compl. ¶33.) Defendants
stringed Plaintiff along and on July 22, 2024, Defendants foreclosed
Plaintiff’s property without compliance. (Comp. ¶33.) As Plaintiff’s claims for
violation of HBOR are insufficiently pleaded, Plaintiff has not sufficiently
alleged a claim for unfair business practices.
Accordingly, the demurrer is SUSTAINED with leave to amend.
Declaratory Relief
Defendant demurs to the claim for declaratory relief on the
grounds Plaintiff fails to allege an actual controversy.
An action for declaratory relief lies when there is an actual bona
fide dispute between parties as to a legal obligation arising under the
circumstances specified in Code of Civil Procedure section 1060 and, in
addition, the controversy must be justiciable – that is, it must present a
question as to which there is more than one answer. (Western Motors
Servicing Corp. v. Land Development & Inv. Co. (1957) 152 Cal.App.2d
509.) Plaintiff’s claim for declaratory relief is derivative of Plaintiff’s
foreclosure and related claims. As these claims are not viable, neither is
Plaintiff’s claim for declaratory relief.
Accordingly, the demurrer is SUSTAINED with leave to amend.
Quiet Title
Defendant demurs to the quiet title cause of action on the grounds
Plaintiff’s allegations are insufficient to demonstrate a valid quiet title
claim against Defendant SPS. SPS itself has no direct interest in the Property,
and was the servicer of a secured mortgage loan which has been foreclosed upon.
Moreover, Plaintiff must allege that she tendered the full amount owed under
the Loan as a condition of quieting title to the Property following foreclosure
and Plaintiff’s cause of action for quiet title lacks an independent factual
basis, and is instead predicated on her other claims.
The cause of action fails for many reasons. One seeking to clear
title to his property must first discharge the outstanding debt on the
property. (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477-478.)
Plaintiff has not alleged that they have discharged the outstanding debt.
Moreover, the complaint has not alleged SPS’ direct interest in the property.
Accordingly, the demurrer is SUSTAINED with leave to amend.