and once more:
Quote:
2010-00072372-CU-OR
INES CABALLERO VS. DREAMCASA, INC.
Hearing on Demurrer
Defendant Bank of America, N.A., as successor in interest to Countrywide Bank,
FSB’s demurrer to Plaintiff Ines Caballero’s complaint is ruled upon as follows.
Defendants' request for judicial notice is granted.
Plaintiff’s complaint alleges numerous causes of action arising out of a non-judicial
foreclosure proceeding
First and Second Causes of Action (Fraud and Misrepresentation)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Plaintiff has not alleged fraud with the required specificity.
Plaintiff fails to allege the content of any misrepresentation by Defendant or its agents,
or even the specific nondisclosure attributed to Defendant. Also, given this cause of
action is alleged against Defendant, a corporate defendant, Plaintiff was required to
allege “the names of the persons who made the allegedly fraudulent
misrepresentations, their authority to speak, to whom they spoke, what they said or
wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.) Plaintiff essentially concedes she has not alleged this
level of specificity but argues discovery will uncover the information. However, as
currently pled, there are no allegations which would indicate that Plaintiff cannot at
least attempt to plead fraud against a corporate defendant with the required specificity
nor is any convincing argument provided as to why she should not have to make the
allegations. To the extent Plaintiff bases these causes of action on her allegation that
Defendant violated the Truth in Lending Act, her claim is insufficient as any TILA claim
must be filed one year after the alleged violation. (15 USC § 1640(e).) However, here,
Plaintiff entered the loan agreement in November 2007 and did not file the action until
2010.
Third Cause of Action (Breach of Fiduciary Duty)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Plaintiff does not allege that Defendant owed her a
fiduciary duty of that Defendant breached any duty, instead she alleged that a
mortgage broker owes fiduciary duties. (Comp. ¶ 61.) Plaintiff did not allege
Defendant was a broker, instead she alleged Defendant was her lender. (Comp. ¶¶ 4,
63.) Yet lenders in residential loan transactions do not owe borrowers fiduciary duties.
(Bastajian v. Brown (1943) 57 Cal.App.2d 910, 915.) Further she alleged codefendant
Dreamcasa breached a fiduciary duty, but did not allege any facts
attributable to Defendant. (Comp. ¶¶ 64, 65.)
Fourth Cause of Action (Unconscionability)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Unconscionability is an affirmative defense, not a cause
of action. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758,
794.) Plaintiff fails to address this point in her opposition.
Fifth Cause of Action (Negligence)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Financial institutions do not owe borrowers a duty of care
when the lender’s involvement in the loan transaction does not exceed the scope of its
normal role as a lender of money. (Nymark v. Heart Fed. Savs. & Loan Ass’n (1991)
231 Cal.App.3d 1089, 1096.) Plaintiff’s allegations involve a conventional loan
transaction. Plaintiff does not discuss this authority in her opposition.
Sixth Cause of Action (B&P § 17200)
The demurrer is sustained with leave to amend for failure to state facts sufficient toconstitute a cause of action. The Court disagrees that Plaintiff failed to allege loss of
property or money to show standing under B&P § 17200 given she alleged her loan
payments were increased as a result of Dreamcasa’s and Defendant’s acts. (Comp. ¶
86.) However, her claim fails to state facts showing any wrongful conduct by
Defendant given it is based on her deficient allegations in her previous causes of
action and also upon allegations that Defendant violated RESPA, the Equal Credit
Opportunity Act and TILA, yet her allegations are insufficient to demonstrate any
violation. As pled, any RESPA claim is time barred given a RESPA claim must be
brought within one year of the alleged violation and the complaint was filed more than
two years after the loan was made. (12 USC § 2614.) The ECOA claim fails because
Plaintiff did not allege she was discriminated against regarding any credit transaction
based on her membership in a protected class. The TILA claim fails as discussed
above in connection with the fraud claims.
Seventh Cause of Action (Unjust Enrichment)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Plaintiff has not alleged in this cause of action any facts
showing Defendant was unjustly enriched. Instead, she simply alleges that
“Defendants have been unjustly enriched…by wrongfully collecting money to which
Defendants, in equity, are not entitled. Defendants have unjustly retained the amounts
wrongfully collected.” (Comp. ¶ 92.) She also refers to a yield spread premium that
Defendant paid to Dreamcasa. (Comp. ¶ 96.) Again, however, no facts in this cause
of action demonstrate that this premium is improper, or even that Defendant retained
the premium. Nor is there any allegation as to what fees Defendant has kept which
are unearned. Plaintiff’s allegations are insufficient to show what this Defendant
wrongfully collected or retained any money.
Eighth Cause of Action (Accounting)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. An accounting is only appropriate when “the accounts are
so complicated that an ordinary legal action demanding a fixed sum is
impracticable.” (Civic W. Corp. v. Zila Indus., Inc. (1977) 66 Cal.App.3d 1, 14.)
Plaintiff’s allegations fail to establish that the amount due under her loan is not readily
ascertainable, the means of which are within the knowledge of this Defendant.
Ninth Cause of Action (Quiet Title)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. A borrower cannot maintain a quite title action against the
mortgagee without paying the secured debt. (Miller v. Provost (1994) Cal.App.4th
1703, 1707.) This is true even where the debt is unenforceable. (Mix v. Sodd (1981)
126 Cal.App.3d 386, 390.) Here, Plaintiff has not alleged tender.
Tenth Cause of Action (Declaratory Relief)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Plaintiff alleges that her note “was assigned to a trust
pool through [a] securitization process,” that “necessarily entail[ed] separation of the
Note and Deed of Trust,” thereby negating the enforceability of the note. (Comp. ¶¶
108-107.) She seeks a declaration pursuant to Civil Code § 2932.5 that the power ofsale in the deed of trust is void. § 2932.5 provides that the “power of sale may be
exercised by the assignee if the assignment is duly acknowledged and recorded.”
Plaintiff alleges no facts showing such violation. Further, to the extent this cause of
action is based upon the theory that Defendant does not have possession of the
original note, no authority is provided to support the theory.
Eleventh and Twelfth Causes of Action (Cancellation of Void Instrument and
Rescission)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. These causes of action rely upon the allegations in
Plaintiff’s previous causes of action that the loan documents were procured by fraud,
and were unconscionable. Given the underlying allegations are inadequately pled as
discussed above, the instant causes of action are deficient for the same reasons.
Thirteenth Cause of Action (Slander of Title)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. While Defendant argues slander of title claims are
subject to the one year statute of limitations in Code of Civil Procedure § 340(c), case
law suggests it is subject to a two year statute of limitations. (Guess, Inc. v. Superior
Court (1986) 176 Cal.App.3d 473, 477.) The cause of action is based upon the
recording of the deed of trust, yet the deed of trust was recorded in November 2007.
Here, since the action was filed on March 2010, this cause of action as pled is barred
by the statute of limitations. Plaintiff does not address this point. In any event, Plaintiff
fails to allege facts demonstrating that the recorded deed of trust was false. While she
alleged the deed of trust purports to “establish a debt that was never owed” this is not
sufficient because there are no facts to demonstrate why the debt was never owed.
To the extent, the allegation is based on her claims regarding the purported invalidity
of the loan (e.g., fraud) it is insufficient because those allegations are insufficient.
Plaintiff also failed to allege that any publication was without privilege or justification.
(Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264.)
Fourteenth Cause of Action (Injunctive Relief)
The demurrer is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. Injunctive relief is a remedy not a cause of action and
must be tethered to an underlying cause of action. Given Defendant’s demurrers to
every other causes of action has been sustained, the demurrer to this cause of action
is sustained for the same reasons.
Plaintiff may file and serve an amended complaint no later than August 16, 2010.
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07-28-2010, 05:46 PM
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