Recording a Default or Foreclosure in California

Also, no injunctive relief is available for a violation of Civil Code § 2924(a)(6). (Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 155, review denied (Nov. 30, 2016) [“The Legislature, however, did not provide for injunctive relief for a violation of section 2924(a)(6)”].) Also, the Complaint appears to be barred by application of the doctrine of judicial estoppel and also fails to allege tender of the loan balance due. Fourth Cause of Action for Unfair Competition Law Violations [Bus.

Code §2924(a)(6) limits who may record a notice of default or initiate foreclosure proceedings. Plaintiff alleges that Defendants do not have the requisite beneficial interest under Cal. Civ. Code §2924(a)(6), and that Defendants lack authority to foreclose on the loan.

Plaintiff further alleges that LAS lacked the authority to foreclose on the property because it was not the trustee of record, rendering the NOD void under Civil Code § 2924(a)(6). (Complaint, ¶ 21.) Civil Code § 2924.15 does not specify that Section 2924(a)(6) only applies to first lien mortgages. However, no injunctive relief is available for violation of Section 2924(a)(6). (Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 150.)

The Demurrer to the second, fourth, and fifth causes of action (Violation of California Civil Code §§2924.17, 2924(a)(6), Intentional Infliction of Emotional Distress, and Injunctive Relief Under California Business and Professions Code and Code of Civil Procedure §526) is SUSTAINED WITHOUT LEAVE TO AMEND.

Code §2924(a)(6) Cal. Civ. Code §2924(a)(6) limits who may record a notice of default or initiate foreclosure proceedings. Plaintiffs argue that Defendants do not have the requisite beneficial interest under Cal. Civ. Code §2924(a)(6), and that Defendants lack authority to foreclose on the loan. Pursuant to judicially noticeable documents, there is a recorded chain of instruments running from the original lender to the foreclosing defendant.

However, section 2924(a)(6) does not provide for a private right of action. (Wasjutin v. Bank of America, N.A. (9th Cir. 2018) 732 Fed.Appx. 513, 515 [“There is no private right of action under section 2924(a)(6).”]; see also Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 163 [Section 2924(a)(6) “does not provide for the ability of a borrower to directly litigate preforeclosure a claim that the foreclosing party lacked a beneficial interest in the deed of trust.”].)

C/A 2-Viol of CC 2924 (a)(6) Argues that this deals with recordation of the notice of default but Ps do not allege that B of A recorded any notice of default. True. Tentative Ruling: Sustain w/o leave C/A 3 - Viol of CC 2923.5, 2923.6, 2923.55 and 2923.7 - against B of A and BSI D argues that CC 2923.5 deals with recordation of notice of default, something that Ps do not allege that D did.

The complaint asserts causes of action for (1) violation of Civil Code section 2923.55; (2) violation of Civil Code section 2924.17; (3) violation of Civil Code section 2924(a)(6); (4) violation of Business and Professions Code section 17200; and (5) accounting. Discussion 3rd Cause of Action for Violation of Civil Code section 2924(a)(6) Only the holder of the beneficial interest under a DOT, its agent, or the trustee may record a NOD. Civ. Code, § 2924, subd. (a)(6).

Code § 2924(a)(6): GRANTED Section 2924 in relevant part states: “An entity shall not record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” (Civ. Code § 2924(a)(6).)

The Court also notes that the premise that foreclosure proceedings violate Civil Code sections 2924.17 and 2924(a)(6) because of improper assignments or lack of ownership of the loan has been held to not be a valid basis for a cause of action. (Lucioni v. Bank of America, N.A. (Sept. 7, 2016, No. B265722) --- Cal.Rptr.3d ----, 2016 WL 4655762, at *5.) Even if applicable, it appears that defendants complied with the relevant provisions of Civil Code §§ 2924.17 and 2924(a)(6).

Further, the Plaintiff argues that he can bring a private cause of action for the violation of statutes, such as Civil Code section 2924(a)(6) and he claims that, for example, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 authorized a claim based on Civil Code section 2924(a)(6).

Motion is GRANTED WITH LEAVE TO AMEND as to the remaining causes of action on the following grounds: The first cause of action fails to establish a violation of Civil Code § 2924(a)(6), as judicially noticeable recorded documents appear to establish that the notices were recorded by appropriate parties. The third cause of action for violation of Civil Code § 2924f fails as plaintiff has failed to allege tender.

Deny motion as directed to cause of action 4 (CC 2924(a)(6)) (See Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 919, 936–938.) The reasons given by the Yvanova Court for allowing a foreclosed-upon borrower to challenge a void assignment of the deed of trust, work just as well as to a borrower who is faced with a notice of default and election to sell recorded by an improper party.

 The Court of Appeal has expressly held that there is no cause of action for injunctive relief under Civil Code section 2924(a)(6), because that statute is not listed in the Homeowner Bill of Rights remedies statute. (Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 157-161.)  No foreclosure sale has taken place, and preemptive causes of action challenging standing to foreclose are not authorized. (See, Perez v. Mortg. Elec.

C. 2924(a)(6) CC 2924(a)(6) provides no entity shall record a NOD unless it is the holder of the beneficial interest of the deed of trust or the designated agent of the holder. Plaintiff alleges CMLTI Asset Trust did not exist so it could not be a beneficial holder. Even if that allegation was sufficient, Plaintiff does not allege the lack of agency. Plaintiff has leave to amend this cause of action. 4th C/A – Civ.

Violation of Civil Code §2924(a)(6) 6. Violation of Civil Code §2924.12 7. Unfair Business Practices Defendant Central Mortgage Company’s (“CMC”) demurrer is presently before the Court. II. Analysis CMC demurs on various grounds. The Court will address CMC’s specific arguments below. CMC’s request for judicial notice is granted pursuant to Evidence Code § 452(c) and (d).

Code § 2924(a)(6). Cal. Civ. Code § 2924(a)(6) states, “[n]o entity shall record or cause a Notice of Default to be recorded... unless it is the holder of the beneficial interest...”

These claims are premised on violations of Civ.Code §2924(a)(1)), 2934a(a)(1), 2934[a](e) and 2924(a)(6), 2924.9, and Title 11 U.S.C. § 362(a)(4). (Compl. ¶ 37.) 11 U.S.C. § 362(a)(4) relates to the bankruptcy stay, and the Court has already stated it cannot rule on that issue. Civ. Code § 2924(a)(1) was abandoned by Plaintiffs; further, Civ. Code §§ 2934a(a)(1), 2934a(e), 2924(a)(6) are simply related statutes.

Overrule demurrer as to causes of action 2 - Viol of CC 2923.6, 3 - Viol of CC 2924 (a)(6) & 5 - Viol of B&P 17200. Plaintiff corrected his pleading for cause of action 2 regarding agency. Plaintiff has alleged reasons why his prior loan modification applications were not given a 'fair opportunity' to be evaluated by Bank of America. As Plaintiff has stated causes of action for causes of action 2 and 3, he has stated a cause of action under cause of action 5. Answer due by 7-2-15

Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” With respect to § 2924(a)(6), the crux of Plaintiffs allegations appears to be that the void assignments preclude Defendants from foreclosing on the Note.

The wrongful foreclosure and violation of Civil Code § 2924(a) (6) claims fail because plaintiff has alleged insufficient facts showing HSBC Bank violated California's non-judicial foreclosure laws. Plaintiff alleges no facts showing the disputed documents are void, voidable, or that they will cause him serious injury.

The Court intends to Sustain D's demurrer without leave to amend as to: C/A 1 - Wrongful foreclosure (there has been no foreclosure); C/A 2 - Violation of CC 2924 (a)(6) [Ps cannot challenge the issue of the pooling agreement and assignments per Jenkins v JP Morgan Chase Bank, NA (2013) 216 CA 4th 497, 514-515; Glaski v B of A (2013) 218 CA 4th 1079, a case that no other court of appeal has followed, dealt with a post foreclosure action, not pre foreclosure like Ps' case here]; C/A 4 - Viol of CC 2924.17 (Ps

.: TC028518 Matter on calendar for: Unopposed Motion to be Relieved as Counsel Tentative ruling: This is an action for violation of Civil Code §§ 2937 and 2924(a)(6), negligence, and unfair business practice based on an allegedly wrongful non-judicial foreclosure. On November 17, 2006, Plaintiff Alfredo Vargas Ramirez financed a purchase of real property on Alondra Blvd. in Compton, CA by executing a promissory note and Deed of Trust as security for the note.

Third Cause of Action: Here Plaintiff alleges violation of Civil Code §§ 2924(a)(6) and 2924.17, seeking to prevent the non-judicial foreclosure sale of the home. Neither of the cited provisions create a pre-foreclosure right to sue. As argued by Defendant, neither provision provides a pre-foreclosure right to sue. "As the Legislature chose to provide for injunctive relief for some HBOR violations, but not for a violation of section 2924(a)(6), we do not find such relief impliedly available.

Code § 2924(a)(6) Plaintiff chose not to amend his complaint at all with respect to the second cause of action. Civil Code § 2924(a)(6) states, “[n]o entity shall record or cause a Notice of Default to be recorded... unless it is the holder of the beneficial interest...”

Here, the Plaintiff’s claim under section 17200 is based on the claim that the Defendants violated the statutes identified in his first through tenth causes of action, i.e., Civil Code sections 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.17, 2924(a)(5), 2924(a)(6), 2924c, and 2937. As noted above, the Plaintiff has not been able to state these claims.

Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” With respect to § 2924(a)(6), the crux of Plaintiffs’ allegations appears to be that the void assignments preclude Defendants from foreclosing on the Note.

Civ.Code § 2924(a)(6). This merely means that a Notice of Default must be recorded by the beneficiary or its agent, or the trustee, and that any agent or trustee must act under authority of the beneficiary. The Notice of Default was recorded by the trustee and there is no allegation it wasn't acting under the authority of Ocwen, the beneficiary. Ocwen is not required to be in possession of the note and plaintiff is not permitted to maintain an action to determine who is. Gomes v.

The Civil Code § 2924(a)(6) claim fails because there is no private right to action to enforce that statute. The misrepresentation claims are not pled with specificity. The Penal Code § 115 claim fails because there is no private right of action to enforce the Penal Code. The declaratory relief claim is duplicative of the other causes of action and the demurrer is sustained.

Deny motion as directed to cause of action 4 (CC 2924(a)(6)). See Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 919, 936–938. The reasons given by the Yvanova Court for allowing a foreclosed-upon borrower to challenge a void assignment of the deed of trust work just as well as to a borrower faced with a notice of default and election to sell recorded by an improper party.

Code §2924.17 and §2924(a)(6); (3) unfair business practices; (4) cancellation of instruments; (5) negligent representation; and (6) intentional infliction of emotional distress. On November 30, 2018 Defendants demurrer to the FAC was sustained without leave to amend. ANALYSIS Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).)

. § 2924(a)(6)); (2) Cancellation of Instruments; (3) Violation of B&P Code § 17200; (4) Quiet Title; (5) Wrongful Foreclosure; (6) Breach of Contract; (7) Violation of California Homeowner Bill of Rights California Civil Code § 2924.17; and (8) Fraud. Plaintiff brought this action essentially alleging that title to her real property was wrongfully taken from her.

Violation of Section 2924(a)(6) & (f)(3) (Third Cause of Action) Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” Once more this is just an attack on the chain of transfer on the lender side, forbidden by Yvanova as discussed above.

Substituting a trustee under a deed of trust is not a transfer of an estate in real property. 5th Cause of Action – Violation of Civil Code §2924(a)(6) and 2924.17:Section 2924(a)(6) requires the holder/holder’s agent of the beneficial interest on the deed of trust to record the notice of default. The request for judicial notice provides the assignment.

Facing possible foreclosure, Plaintiff filed the operative Complaint alleging causes of action for (1) violation of Civil Code § 2923.7, (2) breach of contract, (3) negligence, (4) violation of Civil Code § 2924(a)(6), and (5) violations of Bus. & Prof. Code § 17200, et seq. Request for Judicial Notice Defendants’ Request for Judicial Notice is granted.

The complaint, filed November 8, 2018, alleges causes of action for: (1) violations of Civil Code, §2923.5; (2) violations of Civil Code, §2923.6(c); (3) violations of Civil Code, §2924(a)(6); (4) violations of Business & Professions Code, §17200 et seq.; and (5) declaratory relief. RELIEF REQUESTED: Defendants Ocwen and USBNA demur to the 1st to 4th causes of action alleged in the complaint. Defendant CIT Bank, N.A. demurs to the 1st to 5th causes of action.

Fifth Cause of Action for Lack of Title and Standing Under Civil Code § 2924(a)(6) Plaintiff fails to state facts sufficient to constitute a cause of action. Civil Code § 2924(a)(6) states: “(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

Plaintiff skips from the 3rd to 5th cause of action. 5th Cause of Action – Violation of Civil Code §2924(a)(6) and 2924.17 Section 2924(a)(6) requires the holder/holder’s agent of the beneficial interest on the deed of trust to record the notice of default. Again, Plaintiff has not pled facts demonstrating that Defendant is not the holder of the loan. Section 2924.17 requires a mortgage servicer to file accurate and complete documents in which the default is substantiated.

Bank of America, N.A. (2016) 3 Cal.App.5th 150, 158-61: The Legislature, however, did not provide for injunctive relief for a violation of section 2924(a)(6), the provision that the complaint relies upon in seeking injunctive relief. That is, section 2924(a)(6) is not one of the nine sections identified in sections 2924.12(a)(1) and 2924.19(a)(1).

Discussion: C/A s 1 - Viol of CC 2924 (a)(6), 2 - Viol of CC 2924.17 (b), 3 - Viol of CC 2924.17 (a) & 4 - Wrongful foreclosure per CC 2923.5 Ds argue, and Ps concede, that these code sections are only viable if the dwelling is an owner occupied dwelling. Ds also argue that Ps cannot challenge the non judicial foreclosure process under these causes of action pursuant to Jenkins v JP Morgan Chase NA (2013) 216 CA 4th 497.

This would appear to foreclose the addition of a new cause of action for negligence, violation of Civil Code, § 2924(a)(6), violation of Civil Code § 2924, breach of contract, wrongful foreclosure and UCL claim based on any theory other than Civil Code § 2923.6. The parties cannot stipulate to confer jurisdiction to the court when the jurisdiction does not exist.

Code §§2923.6, 2924.10, 2924.12, 2924.17, 2924.18, 2924.19, and 2924(a)(6). Where a trustee’s sale has not occurred, a borrower can only seek injunctive relief under the HBOR, not damages. The HBOR provides for injunctive relief for statutory violations that occur prior to foreclosure, and monetary damages when the borrower seeks relief for violations after the foreclosure sale has occurred. (Cal. Civ. Code §2924.12(a)-(b).)

. § 1692, et seq., (5) violation of Civil Code § 2924.17, (6) violation of Civil Code § 2924(a)(6), (7) violation of Bus. & Prof. Code § 17200, (8) violation of Civil Code § 2923.6(f)(1), (9) fraudulent concealment, (10) intentional misrepresentation, and (11) violation of Bus. & Prof. Code § 17200. The Court sustained Defendants’ demurrer as to the entirety of the SAC on August 10, 2017, but granted leave to amend as to Plaintiff’s tenth and eleventh causes of action.

Violation of Civil Code §2924(a)(6) Civil Code §2924(a)(6) provides: "No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

However, the Court has reviewed Plaintiffs' FAC, which does include procedural challenges to the foreclosure process, including violations of California Civil Code sections 2923.5 and 2924(a)(6). Additionally, while Fannie Mae argues that Plaintiffs may not challenge foreclosure where they have failed to offer tender, this argument constitutes a challenge to Plaintiffs' standing in the civil action, which is not properly addressed in a motion to consolidate.

Finally, Pina claims that the foreclosure was wrongful based upon a recently amended version of Civil Code §2924(a)(6). However, no authority is provided showing that this recent revision applies retroactively to 2012 when Plaintiff's property was foreclosed upon. Equally problematic for Pina is that, unless he can provide other authority, his remedy is confined to a pre-foreclosure postponement as was the case in Mabry v. Sup.

Plaintiffs have alleged sufficient facts to state a cause of action for violation of section 2924(A)(6). The demurrer to the fourth cause of action is overruled. Fifth Cause of Action for Violation of Civil Code Section 2924.9 Defendant argues that Plaintiffs conceded that Wells Fargo acknowledged receipt of their submissions of a loan modification application. (FAC, 7:12-14, 8:8-9).

Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” Plaintiff’s wrongful foreclosure claim is premised on his allegations regarding defective assignment.

Civ.Code § 2924(a)(6) prohibits the initiation of foreclosure proceedings by an entity that is not the holder of the beneficial interest, the original trustee or the substituted trustee or their designated agent. As noted above, the judicially noticeable facts show there was no violation of this statute.

Discussion 1st Cause of Action (declaratory relief and lack of standing under Civ.Code § 2924(a)(6)): The assignment of a note to a trust pool does not deprive the trustee or its agent of the power to initiate a nonjudicial foreclosure sale. Lane v. Vitek Real Estate Industries Group (E.D. Cal. 2010) 713 F.Supp.2d 1092, 1099; Hafiz v Greenpoint Mortg. Funding, Inc. (N.D.Cal.2009) 652 F.Supp.2d 1039.

Plaintiff does not suggest how he can amend his FAC to state a cause of action under Civil Code section 2924(a)(6) where no private cause of action exists under that statute.

Demurrer to Fifth Cause of Action for Violation of Civil Code section 2924(a)(6) Section 2924(a)(6) states that no entity has the authority to initiate or proceed with the foreclosure process unless the entity is the holder of a beneficial interest or the original or substituted trustee under the deed of trust. Since this is a statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v.

The opposition fails to address this argument. 2nd CAUSE OF ACTION – VIOLATION OF CIVIL CODE §2924(a)(6) Civil Code, §2924(a)(6) states: “No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

(See Civil Code §2924(a)(6).) The Court of Appeal ruled that the availability of injunctive relief under the HBOR is governed exclusively by Civil Code §§2924.12 (a)(1) and 2924.19(a)(1). Since neither of these statutory provisions authorize a court to enjoin a violation of section 2924(a)(6), no injunctive relief remedy was available for a violation of that section. (See Lucioni v. Bank of America at p. 419.) The court of appeal in Lucioni v.

As against Bank of America, the operative complaint in the 10255 case alleged causes of action for 1) Wrongful Foreclosure, 2) Violation of CC § 2924(a)(6), 3) Breach of the Covenant of Good Faith and Fair Dealing, 4) Violation of California Business and Professions Code §§ 17200 et seq., 5) Declaratory Relief "that Defendants never had and currently do not have the right to foreclose" [FAC ¶ 70].

Code §2924.17 and §2924(a)(6) Cal. Civ.

Plaintiff asserts that Bank violated Civil Code § 2924(a)(6) by initiating foreclosure on his property without properly transferring the beneficial interest in the deed of trust and thus lacked standing to record a notice of default. (Id., ¶23). Plaintiff further asserts that Bank failed to comply with Civil Code § 2914.17 by “record[ing] a fraudulent and/or false” assignment of deed of trust and notice of default. (Id.).

Code sec. 2924(a)(6) [ para. 29 of the complaint alleges: "Civil Code section 2924(a)(6) bars all defendants from initiating foreclosure unless they are the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest."]; and declaratory relief.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

. § 1601, et seq., (4) violation of 15 U.S.C. 1692, et seq., (5) violation of Civil Code § 2924.17, (6) violation of Civil Code § 2924(a)(6), (7) violation of Bus. & Prof. Code § 17200, (8) violation of Civil Code § 2923.6(f)(1), (9) fraudulent concealment, (10) intentional misrepresentation, and (11) violation of Bus. & Prof. Code § 17200. Request for Judicial Notice Defendant’s Request for Judicial Notice is granted.

Defendants' Motions for Summary Adjudication of the first cause of action for violation of Civil Code § 2924(a)(6), second cause of action for violation of Civil Code § 2923.6, third cause of action for violation of Civil Code § 2923.55, and fifth cause of action for violation of Civil Code § 2923.7 are granted. Plaintiff has not met his burden of demonstrating the existence of a triable, material fact issue with respect to the alleged Civil Code violations. (See SSUMF Nos. 4-8, 15-16, 33.)

Sustain, without leave to amend, Defendants' general demurrer to Plaintiff's fourth cause of action for violation of Civil Code §2924(a)(6), on the grounds that (a) this cause of action is based on the theory that the subject Loan was not properly transferred into the CWALT Trust; and (b) Plaintiff lacks standing to question the validity of that transfer. (See Sandri v. Capital One, N.A.(Bankr. N.D. Cal. 2013) 501 B.R. 369, 373-377; see also Yvanova v. New Century Mortgage Corp. (April 25, 2014) 2014 Cal.

Code Sec. 2924(a)(6) In support of this cause of action Plaintiffs allege that U.S. Bank was not the beneficiary under the note because the assignment of the deed of trust to U.S. Bank was untimely and, as a result, U.S. Bank had no authority to foreclose on the property. The motion as to this cause of action is granted because Plaintiffs have admitted that U.S. Bank was both the beneficiary and holder of the note. (RFAs 4-5.)

(See Civil Code §2924(a)(6).) The allegation in ¶25 of the Complaint that Bank of America sent a Notice of Intent to Accelerate Plaintiff's loan does is not, standing alone, sufficient to establish that nonjudicial foreclosure proceedings were initiated because the obligations under a loan may be accelerated even in the absence of any foreclosure proceedings.

The operative complaint in the 10255 case alleged causes of action for 1) Wrongful Foreclosure, 2) Violation of CC § 2924(a)(6), 3) Breach of the Covenant of Good Faith and Fair Dealing, 4) Violation of California Business and Professions Code §§ 17200 et seq., 5) Declaratory Relief "that Defendants never had and currently do not have the right to foreclose" [FAC ¶ 70].

Violation of Civil Code, § 2924(a)(6) Cause of Action Defendant MTC Financial contends that there is no statutory private cause of action for violation of Civil Code, § 2924(a)(6). Plaintiffs argue in opposition that they can maintain a private cause of action for violation of Section 2924(a)(6) where a party that holds no beneficial interest in the deed of trust forecloses and sells the property.

Injunctive Relief In Lucioni, the plaintiff alleged a cause of action for violation of Civil Code section 2924, subdivision (a)(6) (“Section 2924(a)(6)”) and sought to enjoin the foreclosure proceedings based on such violation.

Code § 2924(a)(6)). Factual Background and Procedural History This is an unlawful foreclosure action. Plaintiff alleges that he is the owner of real property located at 4451 Driftwood Court, Discovery Bay, CA 94505 (the “Subject Property”). FAC at ¶ 1. On or about March 26, 2007, Plaintiff obtained a $948,000 mortgage loan from American Home Mortgage Acceptance, Inc. (“AHM Acceptance”) secured by the Subject Property. FAC at ¶ 9. AHM Acceptance later filed for Bankruptcy on or around August 6, 2007.

First cause of action for lack of title and standing (Civil Code §2924(a)(6) and dual tracking under section 2924.11): Section 2924.11 prohibits dual tracking, which forbids a servicer on a loan from recording a notice of default or a notice of sale while a loan modification application is pending. Plaintiff alleges he submitted a loan modification application on 12/15/17 and the Notice of Sale was recorded on 2/16/18. Plaintiff sufficiently alleges a violation of Civil Code section 2924.11.

Section 2924(a)(6) provides that “[n]o entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest…” Section 2924.17 requires that specified declarations or affidavits required by the non-judicial foreclosure statutes be accurate and complete and supported by competent and reliable evidence.

Since the Plaintiff’s evidence shows that her application for a loan modification is pending, Civil Code section 2923.6 prohibits the Defendant from recording a default, recording a notice of trustee’s sale, or conducting a sale. This is grounds to issue a preliminary injunction to maintain the status quo pending a determination on the merits of the Plaintiff’s claim that the Defendant has violated Civil Code section 2923.6.

Demurrer to Fifth Cause of Action for Violation of Civil Code section 2924(a)(6) Section 2924(a)(6) states that no entity has the authority to initiate or proceed with the foreclosure process unless the entity is the holder of a beneficial interest or the original or substituted trustee under the deed of trust. Since this is a statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v.

Violation of Civil Code, § 2924(a)(6) Cause of Action Defendants JP Morgan Chase Bank and Freddie Mac argue that there is no private cause of action for violation of Section 2924(a)(6). Plaintiffs assert that they have a right to maintain a private cause of action for alleged violation of Code of Civil Procedure, § 2924(a)(6); and there is a clear violation in that defendants have admitted in discovery responses that JP Morgan Chase Bank was not a beneficiary of the deed of trust..

Code §§ 2923.5, 2924(a)(1), 2934a(a)(1), 2934a(e), 2924(a)(6) and 2924.9.” (Complaint, ¶¶ 50, 53.) Plaintiff fails to cite to any authority that the alleged violations render the foreclosure void (as opposed to voidable) to nullify the tender requirement. (Karlsen v. American Sav. & Loan Assn (1971) 15 Cal.App.3d 112 (“in the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust”).) Plaintiff relies on Dimock v.

Code §§ 2923.5, 2924(a)(1), 2934a(a)(1), 2934a(e), 2924(a)(6) and 2924.9.” (Complaint, ¶¶ 50, 53.) Plaintiff fails to cite to any authority that the alleged violations render the foreclosure void (as opposed to voidable) to nullify the tender requirement. (Karlsen v. American Sav. & Loan Assn (1971) 15 Cal.App.3d 112 (“in the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust”).) Plaintiff relies on Dimock v.

Code §§ 2923.5, 2924(a)(1), 2934a(a)(1), 2934a(e), 2924(a)(6) and 2924.9.” (Complaint, ¶¶ 50, 53.) Plaintiff fails to cite to any authority that the alleged violations render the foreclosure void (as opposed to voidable) to nullify the tender requirement. (Karlsen v. American Sav. & Loan Assn (1971) 15 Cal.App.3d 112 (“in the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust”).) Plaintiff relies on Dimock v.

Violation of Civil Code §2924(a)(6) Civil Code §2924(a)(6) provides: "No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

.; (5) violation of Civil Code § 2924(a)(6) & 2924(f); (6) declaratory relief; (7) violation of civil code § 2923.5 & § 2923.55; (8) violation of the Fair Debt Collection Practices Act (15 U.S.C. § 1692(6); and (9) punitive damages. For the following reasons, the Demurrer is sustained, without leave to amend. Request for Judicial Notice Defendant requests judicial notice of several pleadings, an order, and judgment in unlawful detainer case MS19-0117. The unopposed request for judicial notice is granted.

(a)(6) and 2923.55 because she fails to allege any ultimate facts in support of the claimed violations of these provisions.

Specifically, this cause of action references Civil Code sections 2924.11 (dual tracking), 2923.7 (point of contact), 2924.17 (accuracy of documents) and 2924(a)(6) (authority to foreclose). The seventh cause of action for a violation of Business and Professions Code section 17200 is predicated on the same alleged misconduct. As discussed below, Plaintiffs have not demonstrated a likelihood of prevailing on these causes of action.

Under Civil Code §2923.6, when an application for a loan modification is pending, a lender is barred from recording a default, recording a notice of trustee’s sale, or conducting a sale. Plaintiffs allege in paragraph 21 that they submitted a complete first lien loan modification application to Defendant. In paragraph 22, Plaintiffs allege that Defendant did not provide a written letter that approved or denied the application.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

Under Civil Code section 2923.6, when an application for a loan modification is pending, a lender is barred from recording a default, recording a notice of trustee’s sale, or conducting a sale. The Plaintiffs allege in paragraph 21 that they submitted a complete first lien loan modification application to the Defendant. In paragraph 22, the Plaintiffs allege that the Defendant did not provide a written letter that approved or denied the application.

He alleges this violates Civil Code § 2924(a)(6) and seeks an injunction preventing defendants from “any future violations of any statutes cited herein.” There are several problems with this claim. First, as noted by defendants, injunctive relief is not available under Section 2924. Civil Code § 2924.12 provides injunctive relief to enjoin violations of the HOBR prior to sale on foreclosure.

Bank, FCI (subsequently dismissed on July 18, 2018) and Does 1-10 for (1) Violations of Civil Code § 2924(a)(6) and § 2924.17, (2) Violation of Civil Code § 2924.11, (3) Violation of Civil Code § 2923.7, (4) Violation of Civil Code § 2923.5, (5) Negligence and (6) Violation of Business & Professions Code § 17200. On September 17, 2018, the court sustained U.S.

Code §2934a(d), and/or 2924(a)(6), but Plaintiff does not allege that the Trustee’s Sale has occurred. Plaintiff alleges that Defendants owed her a duty of care because their activities exceeded those of a conventional lender, but she does not allege that Lemoine engaged in any activities except recording a Notice of Default and Notice of Trustee’s Sale.

Code §2924(a)(6) states: “No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.”

Code § 2924(a)(6) Plaintiff alleges that Defendant violated Civ. Code § 2924(a)(b) because it really did not have standing to foreclose due to the late assignment of the deed of trust to a trust that allegedly closed in 2006.

Code 2924(a)(6). Under the Homeowners Bill of Rights, injunctive relief is governed exclusively by Civil Code sections 2924.12(a)(1) and 2924.19(a)(1), which do not authorize enjoining a violation of Section 2924(a)(6), and do not enable borrowers to litigate, pre-foreclosure, a claim that the foreclosing party lacked a beneficial interest in the deed of trust. Lucioni v. Bank of Amer., N.A. (2016) 3 Cal.App.5th 150, 155, 163.

Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” Plaintiff’s wrongful foreclosure claim is premised on his allegations regarding defective assignment.

Violation of Civil Code § 2924(a)(6); 3. Violation of Civil Code § 2924.17; 4. Violation of California Bus. & Prof. Code §§ 17200 et seq.; and 5. Violation of the Covenant of Good Faith and Fair Dealing. On May 31, 2017, SPS, Deutsche Bank, and MERS (“Demurring Defendants”) filed the present demurrer to the FAC. They argue that Plaintiffs filed for both Chapter 7 and 13 bankruptcies previously, but failed to list their current claims as property during those proceedings.

(SPS), The Wolf Firm, A Law Corporation, The Bank of New York Mellon FKA The Bank of New York, as Trustee for the certificate holders Cwalt, Inc., Alternative Loan Trust 2006-OA21, Mortgage Pass-Through Certificates, Series 2006-OA21 (New York), , and DOES 1 through 20, alleging: (1) violations of Civil Code sections 2923.5, 2924.11, 2923.7, 2924(a)(6), 2924.9, 2924.10, 2924.17, and 2934a; (2) negligence per se; and (3) violation of Business and Professionals Code section 17200.

Accordingly, because Plaintiff’s claims for violation of Civil Code sections 2923.55 and 2924.17, civil conspiracy, aiding and abetting, and void trustee’s deed upon sale and violation Civil Code sections 2924(a)(6), 2923.5, and 2932.5 of were actually litigated in the Previous Action and because Plaintiff’s unfair competition, quiet title, and cancellation of instruments claims could have been litigated there, claim preclusion bars relitigation of those claims here.

Code § 2923.5, 2924(a)(1), 2934a(d), and/or 2924(a)(6) and 3273.10.” (Complaint at ¶ 49.) Plaintiff has not alleged tender or adequately alleged that they are exempt from the tender requirement.

. § 1692, et seq., (5) violation of Civil Code § 2924.17, (6) violation of Civil Code § 2924(a)(6), (7) violation of Bus. & Prof. Code § 17200, (8) violation of Civil Code § 2923.6(f)(1), (9) fraudulent concealment, (10) intentional misrepresentation, and (11) violation of Bus. & Prof. Code § 17200. Request for Judicial Notice Defendants’ Request for Judicial Notice is granted.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

As Defendants argue, Plaintiff’s wrongful foreclosure claim is based on claimed violations by Defendants of C.C.P. sections 2924(a)(6) and 2923.5(a). (Complaint, ¶¶ 22-25.) Plaintiff’s prior two complaints on their face alleged violations of the same sections of the C.C.P., and those actions were dismissed, with the second dismissal being with prejudice.