Wrongful Foreclosure in California

Plaintiff’s first four causes of action (wrongful foreclosure, quiet title, cancellation of trustee’s sale and cancellation of trustee’s deed) are specifically based on the wrongful foreclosure sale in 2007. The issues regarding wrongful foreclosure were adjudicated in RIC500916 through summary judgment in that case. The operative complaint in that case (SAC) even contained causes of action for quiet title and wrongful foreclosure based on the same 2007 foreclosure as alleged in this case.

Plaintiffs may seek injunctive relief, but only as an ancillary remedy in connection with plaintiffs’ four substantive causes of action: (1) wrongful foreclosure; (2) fraud; (3) cancellation, and; (4) declaratory relief.

The third cause of action for wrongful foreclosure also fails because there has been no foreclosure sale.

On Defendant's demurrer to first amended complaint: 1st c/a (wrongful foreclosure, to set aside trustee's sale and for injunctive relief): SUSTAIN with leave to amend. Plaintiffs don't allege there has been a sale so an action for wrongful foreclosure is premature. Moreover, an action for wrongful foreclosure and an action for violation of Civ.Code § 2923.5 are mutually exclusive.

(Id. at *6—“Although the lack of a sale is not fatal to Plaintiff's claim, the lack of facts supporting wrongful foreclosure is” (emphasis added).)

Wrongful Foreclosure The common law tort claim of wrongful foreclosure is “an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper.” (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561.)

The Tallaricos filed a wrongful foreclosure action, suing 1126 Chantilly and Allstar Financial. These matters were consolidated. 1126 Chantilly and Allstar Financials motion to compel arbitration in the wrongful foreclosure action was granted, and the UD matter was stayed. The wrongful foreclosure action was arbitrated before Judge Ann Kough (Ret.), who issued a final award. Coughlin Decl., Ex. A. 1126 Chantilly and Allstar Financial move to confirm the arbitration award.

Wrongful Foreclosure The wrongful foreclosure cause of action is deficient because, on August 21, 2015, the Court sustained with leave to amend a demurrer to that cause of action, and, subsequently, plaintiff chose not to amend that cause of action in the FAC. She does not adequately explain the events that support granting her leave to do so after a conscious decision not to amend in 2015, particularly as the facts now alleged appear quite similar.

WRONGFUL FORECLOSURE — FIRST CAUSE OF ACTION Magnum demurs to the First Cause of Action for Wrongful Foreclosure on the following grounds: (1) because SBRS, and not Safaie, owned the property, Safaie lacks standing to assert a wrongful foreclosure action (Demurrer at p. 11); (2) no Magnum Defendant ever foreclosed on the property, and only one — Magnum Property Investments, LLC — had anything to do with the property, by virtue of its purchase at a foreclosure sale.

Wrongful Foreclosure 2. Negligence 3. Breach of Fiduciary Duty 4. Breach of Contract 5.

If Plaintiff could not tender, then she cannot claim that she has been injured by Defendant’s negligence for failing to allege a wrongful foreclosure cause of action or failing to prevail in the underlying wrongful foreclosure action. Lastly, a privacy objection has been raised in response to this discovery request.

Since Loan Defendants have provided this Court with no law supporting the sustaining of a demurrer for wrongful foreclosure on this ground, Loan Defendants demurrer as to the first cause of action for wrongful foreclosure is OVERRULED.

Because BANA did not initiate the foreclosure which is the basis of Plaintiffs’ claim, Plaintiff cannot establish a necessary element of a wrongful foreclosure claim against BANA. Plaintiffs have had several opportunities to allege claims of quiet title, wrongful foreclosure and cancellation of instruments against BANA but have not been able to successfully allege those claims. Plaintiffs offer no additional amendment which might cure the defects.

Marty Zachary, Christina Zachary and Mike Maunu (Plaintiffs) bring this wrongful foreclosure action against U.S. Bank National Association, Specialized Loan Servicing LLC, Quality Loan Service Corporation, Wells Fargo Bank and Duke Partners II, LLC. The first amended complaint included causes of action for wrongful foreclosure, violation of Civil Code §2924.17 and cancellation of instruments. On March 21, 2017, Plaintiffs dismissed Wells Fargo from the action.

Similar to Multani, Plaintiff should not be required to prove tender of the debt to bring a wrongful foreclosure action in the facts at hand. Plaintiff has sufficiently pled that the sale was illegal, that she was harmed as a result of the sale, and that she is excused from the tender requirement. The demurrer to the First cause of action for Wrongful Foreclosure is OVERRULED.

Because there has been no sale at foreclosure of Zeppeiro's home, his claim for wrongful foreclosure is premature and must be dismissed. See, e.g., Ramirez v. Kings Mortgage Services, Inc., No. 12–cv–01109–AWI–SKO, 2012 WL 5464359, *6 (E.D. Cal. Nov. 8, 2012) (“Plaintiff's claim of wrongful foreclosure does not allege that a foreclosure sale has taken place.... [A] wrongful foreclosure sale is premature prior to the foreclosure sale....

And finally, even if there were some way in which Nace would be entitled to litigate Rogers’s purported wrongful foreclosure claims, that would simply run Nace squarely into another fatal roadblock, namely res judicata. Defendants show by judicial notice that Rogers herself sued these defendants for wrongful foreclosure. That suit was dismissed, and judgment entered against Rogers, after a demurrer to her second amended complaint was sustained without leave to amend.

On the contrary, the Plaintiff alleges that the Defendant has threatened to foreclose and that he is in constant fear of losing his home to a wrongful foreclosure. Since the Plaintiff is bringing a pre-foreclosure lawsuit, he has no standing under Yvanova to bring a wrongful foreclosure cause of action. In his opposition, the Plaintiff does not deny that he is bringing a pre-foreclosure lawsuit.

Yvanova involved a wrongful foreclosure situation, and plaintiff's home has not been foreclosed. The court stated: We conclude, to the contrary, that because in a nonjudicial foreclosure only the original beneficiary of a deed of trust or its assignee or agent may direct the trustee to sell the property, an allegation that the assignment was void, and not merely voidable at the behest of the parties to the assignment, will support an action for wrongful foreclosure.

The Third Cause of Action (Wrongful Foreclosure). Defendant demurs to the Third Cause of Action for wrongful foreclosure “to the extent it is based on” three of four alleged statutory violations. (Notice of Demurrer, page 2, Lines 3-6.) However, Judge Allen has already overruled defendant’s demurrer to this cause of action. (See Minute Order, dated 9-16-16.) On September 16, 2016, defendant contested Judge Allen’s tentative ruling on the demurrer, and objected to the wording of the tentative ruling.

First Cause of Action for Wrongful Foreclosure Plaintiffs admit no foreclosure sale has taken place. (TAC ¶¶ 93, 94, 95.) Accordingly, they cannot state a claim for wrongful foreclosure. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184–85, review denied July 27, 2016.) The recent case of Yvanova did not confer standing on pre-foreclosure plaintiffs as the TAC contends. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 934.)

Thus, the remaining claims related to wrongful foreclosure fail to state a cause of action. Plaintiffs first cause of action for wrongful foreclosure against U.S. Bank is time barred under the four year statute of limitation. (Cal. Civ. Proc., §337(1).) The date of recording was on August 23, 2011, and plaintiff was required to file this action by August 23, 2015.

As to the first cause of action for wrongful foreclosure, BofA demurs on the same grounds that there are no facts to support Lagalle’s claim of dual tracking. As concluded above, Lagalle alleges the minimum necessary facts to support the claim. Contrary to BofA’s assertion, there does not appear to be a requirement to allege a tender of all amounts owed when the alleged wrongful foreclosure is based on dual tracking. Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App 4th 1267, 1273.

BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941 (“Alvarez”) in support of her contention that she can assert a claim for wrongful foreclosure based on the alleged dual tracking, it appears that facts in Majd and Alvarez are distinguishable from the facts alleged in the FAC.

The fact that the substitution was not recorded until July, 2009, approximately three months after the notice of default was recorded is immaterial to evaluation of the sufficiency of the wrongful foreclosure complaint. On the face of the pleading, the alleged irregularity of the timing of recordation of the substitution of trustee is insufficient as a matter of law to support a cause of action for wrongful foreclosure.

Demurrer is overruled as to causes of action for breach of contract, B&P 17200, negligence (MacDonald), wrongful foreclosure (Brown). These causes of action are sufficiently alleged. Demurrer is sustained without leave to amend as to causes of action for negligence (Brown) and wrongful foreclosure (MacDonald) as they are not proper plaintiffs under these causes of action.

Fifth Cause of Action (Wrongful Foreclosure). The demurrer to the fifth cause of action is sustained without leave to amend. Plaintiff’s wrongful foreclosure claim is based on the allegation that Partners for Payment Relief DE II, LLC (“Partners II”) and Partners for Payment Relief, LLC (“Partners”) were not registered with the California Secretary of State at the time of the alleged assignment of Deed of Trust was recorded, thereby invalidating that assignment and all documents recorded thereafter.

WEIGOLD, WAS A WRONGFUL FORECLOSURE; THAT MR. LAMOURE IS A COCONSPIRATOR IN THAT WRONGFUL FORECLOSURE. AND I BELIEVE, UNDER THE WRONGFUL FORECLOSURE LAW, THAT THE PLAINTIFF IS ENTITLED TO ATTORNEY'S FEES. AND PURSUANT TO DISCUSSION WITH COUNSEL, DURING FINAL ARGUMENT, WE'LL RESERVE THAT ISSUE FOR A POST-JUDGMENT MOTION. [6-13-18 transcript at 194:2-10; emphasis added.] Thus, there was an agreement that the amount of fees, if any, as consequential damages would be proven by a post-trial motion.

Case No. 1385530 (“wrongful foreclosure action”): Plaintiffs Christopher A. Clemens and Lanette K. Loeks filed a first amended complaint (FAC) for 1) wrongful foreclosure, 2) quiet title, 3) slander of title, 4) negligence, 5) cancellation of instruments, 6 unfair business practices, and 7) declaratory and injunctive relief. They filed the original complaint on March 12, 2012. Plaintiffs allege: Defendant U.S.

Wrongful Foreclosure Defendant argues that Plaintiff has failed to allege wrongfulness, prejudice, and tender of amounts due and owing.

Wrongful Foreclosure Defendant argues that Plaintiff has failed to allege wrongfulness, prejudice, and tender of amounts due and owing.

The procedural history between Plaintiff and Defendants is as follows: In July of 2016, Plaintiff DORA LUZ SOLANO (“Plaintiff”) filed an action for wrongful foreclosure (“Case 1”). Plaintiff voluntarily dismissed Case 1 in November 2016. In December of 2016, Plaintiff filed a second action for wrongful foreclosure (“Case 2”). Plaintiff voluntarily dismissed Case 2 on June 5, 2017. On December 28, 206, Plaintiff filed an action for wrongful foreclosure (“Case 3”).

However, it appears as though Plaintiff is attempting to assert a claim for wrongful foreclosure. Defendant demurs on the basis that Plaintiff’s claim(s) fail because no foreclosure sale was ever consummated, and the Notice of Default was rescinded.

A plaintiff in a suit for wrongful foreclosure is generally required to show that the alleged imperfection in the foreclosure process was prejudicial to his or her interests. Ram v. OneWest Bank, FSB (2015) 234 Cal. App. 4th 1,

The Complaint seeks to set aside the allegedly wrongful foreclosure. (Compl. ¶ 5.) Plaintiff’s claims for declaratory and injunctive relief appear to be premised on the same factual bases as her claim for wrongful foreclosure. First, Plaintiff alleges that Defendant misrepresented the priority of its lien; Defendant presents evidence that it did not and that it was entitled to foreclose on the Subject Property under the Deed of Trust. (RJN Exs. 1-3.)

Moreover, Defendants properly contend that the “wrongful foreclosure” cause of action fails because Plaintiffs admit that the foreclosure sale has not occurred. An element to a wrongful foreclosure cause of action is the existence of an illegal, fraudulent, or willfully oppressive sale of the property. (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.) Plaintiffs have also failed to allege their willingness and ability to tender. (Lona v.

Plaintiffs demurred in that case on grounds related to their contentions in the wrongful foreclosure case; the demurrer was overruled. Plaintiffs’ present motion seeks to consolidate the unlawful detainer case with their own wrongful foreclosure case, or at least to stay the unlawful detainer case pending the outcome of the wrongful foreclosure case. The parties stipulated to postpone the trial in the unlawful detainer case pending the present motion; the trial is set for October 6.

Plaintiff’s wrongful foreclosure claim fails because Plaintiff does not allege a sale of the property, and because Plaintiff does not allege that he tendered the full amount of the indebtedness. Plaintiff fails to cite to any authority to support his argument that a wrongful foreclosure claim may be brought before a sale of the property. Accordingly, the Court sustains the demurrer to Plaintiff’s wrongful foreclosure claim. C.

Ozar asserts that HOA should not be awarded its attorney’s fees on appeal due to its repeated filings of 473 motions and refusal to vacate its wrongful foreclosure after the bond was posted or in the alternative that the decision trail the resolution or the wrongful foreclosure being litigated in PSC1603251. HOA is entitled to its reasonable attorney’s fees on appeal as directed by the Appellate Court.

Such wrongful foreclosure based claims are barred by the doctrine of res judicata. Bernhard v. Bank of America Nat. Trust & Savings Assoc. (1942) 19 Cal.2d 807, 813.

KC070070 This is a wrongful foreclosure lawsuit involving the Premises. On August 10, 2018, Plaintiff filed an “Amendment to Complaint,” wherein Preeminent Investment Corporation (“Preeminent”) was purportedly substituted in lieu of Does 1-16.

The FAC includes causes of action for wrongful foreclosure, negligent misrepresentation. quiet title, and declaratory relief. After demurrer, Nationstar and U.S. Bank were dismissed from the action. As to Bank of America, N.A. and Recontrust, N.A. (collectively “Defendants”), only Plaintiff’s first cause of action for wrongful foreclosure survived demurrer.

The FAC then makes the conclusory allegation that as a result of the wrongful foreclosure, DLG has been damaged in the amount of $150,000. Missing from the FAC is how the alleged wrongful conduct caused DLG damage. As DLG notes, lost equity in the property is not the only type of damages that may potentially be available for a wrongful foreclosure action. However, DLG has not alleged any out of pocket loss or any other basis for damages at all.

The procedural history between Plaintiff and Defendants is as follows: In July of 2016, Plaintiff DORA LUZ SOLANO (“Plaintiff”) filed an action for wrongful foreclosure (“Case 1”). Plaintiff voluntarily dismissed Case 1 in November 2016. In December of 2016, Plaintiff filed a second action for wrongful foreclosure (“Case 2”). Plaintiff voluntarily dismissed Case 2 on June 5, 2017. On December 28, 206, Plaintiff filed an action for wrongful foreclosure (“Case 3”).

The FAC alleges causes of action for (1) wrongful foreclosure; (2) declaratory relief; (3) cancellation of instruments; and (4) to set aside trustee’s sale. For the following reasons the Defendant’s Demurrer to Plaintiff’s cause of action for wrongful foreclosure is sustained, without leave to amend. Request for Judicial Notice Plaintiff requests judicial notice of a declaration filed in Case No. PS19-1246. Defendant objects. The Request is denied. Evid Code § 450.

As such, the new Plaintiff John Oh does not have standing to bring a wrongful foreclosure claim. As the Court previously held, a trust entity must have counsel because a non-attorney trustee who represents a trust in an action to protect trust property is engaged in the unauthorized practice of law. (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548.) Statute of Limitations Defendant contends that any Plaintiff’s wrongful foreclosure cause of action is barred by the three year statute of limitations.

Plaintiff’s wrongful foreclosure claim fails because Plaintiff does not allege a sale of the property. Plaintiff fails to cite to any relevant authority to support his argument that a wrongful foreclosure claim may be brought before a sale of the property. Mabry v. Superior Court (2010) 185 Cal.App.4th 208 did not involve a wrongful foreclosure claim but a complaint for “failure to comply with section 2923.5.” (Mabry, 185 Cal.App.4th at 216.) Pfeiffer v.

Third Cause of Action Wrongful Foreclosure as to PRFMI and Mortgage Co. Moving Defendants argue that this claim is barred by the statute of limitations because the alleged wrongful foreclosure occurred on December 6, 2017, and this action was not filed until five years later on December 7, 2022.

Wells Fargo and US Bank are correct that courts have rejected wrongful foreclosure claims based on procedural irregularities that caused no prejudice to the borrower. Knapp v. Doherty (2004) 123 Cal.App.4th 76, 94-95. “[A] plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiff’s interests.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272.

Plaintiff's Complaint for Negligence and Wrongful Foreclosure is DISMISSED. Counsel for Defendant shall prepare a Proposed Judgment of Dismissal and submit it for the Court's consideration. The Court will prepare this order regardiing the Demurrer.

The Tallaricos sued for wrongful foreclosure, arguing they did not breach their mortgage agreement with 1126 Chantilly’s predecessor, and the foreclosure sale was conducted under false pretenses. The Tallaricos filed a prior wrongful foreclosure case arising out of the same facts (case no. 20SMCV00959), which they dismissed. 1126 Chantilly Road and Allstar Financial Services move to compel arbitration. Under Cal. Code of Civ.

Third Cause of Action: Wrongful Foreclosure Defendants contend that the third cause of action for Wrongful Foreclosure fails.

Plaintiffs argue that unless the unlawful detainer action is stayed, Defendant will likely prevail because wrongful foreclosure based on a promise to postpone the foreclosure sale is not an allowed defense thereto and Plaintiffs will be evicted. If Plaintiffs then prevailed in the wrongful foreclosure lawsuit, "it will be an empty victory since they will have been permanently evicted." Plaintiffs further argue that under Asuncion v.

On January 26, 2017, Plaintiff filed the Complaint against Defendants, alleging: (1) wrongful foreclosure damages and (2) injunctive relief. Defendants filed this demurrer April 4, 2017. It appears the parties have not met and conferred; they are ordered to meet and confer prior to the hearing of this motion.

The motion for judgment on the pleadings on the first cause of action for breach of contract and fourth cause of action for wrongful foreclosure is granted. The elements of a common law cause of action for wrongful foreclosure are: (1) that the trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property; (2) that the sale was pursuant to a power of sale contained in the mortgage or deed of trust; and (3) that the trustor or mortgagor sustained damages. (Munger v.

The court declines to address the tender or excuse for tender element at this juncture because plaintiffs have failed to adequately allege two of the three elements of wrongful foreclosure. Therefore, RLF and MCG’s demurrer to plaintiffs’ third cause of action for wrongful foreclosure is sustained with 30 days leave to amend.

As to each of the challenged causes of action, the Court finds as follows: 1) WRONGFUL FORECLOSURE: Plaintiff fails to allege facts showing that either BofA or ReconTrust were involved in the foreclosure; therefore, Plaintiff can’t meet the required elements of a wrongful foreclosure claim as to BofA and ReconTrust. See, e.g., Chavez v. IndyMac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.)

Now plaintiff makes the same claims but calls it wrongful foreclosure. Despite the fact that defendants filed the demurrer over two months ago, plaintiff has not filed an opposition to the demurrer. The claim of wrongful foreclosure is based on loan modification and forbearance agreements. Indeed, plaintiff alleges that Chase breached the agreements. [SAC ¶ 15, 16] Plaintiffs make no other allegations regarding a defect in the foreclosure process. However, plaintiff alleges that the agreements are oral.

As to Plaintiff's fourth cause of action for wrongful foreclosure, Defendant's demurrer is overruled on the grounds that (a) the rule that a plaintiff must allege tender of full payment of an obligation to maintain a wrongful foreclosure claim appears to be limited to claims for equitable remedies such as quiet title or redemption, and here Plaintiff's wrongful foreclosure claim also seeks legal damages; and (b) Defendant's argument that the recitations in the subject Trustee's Deed create a conclusive presumption

Wrongful Foreclosure BANA argues that Plaintiff fails to state a claim for wrongful foreclosure for three reasons. BANA generally asserts that Plaintiff lacks standing to contest the various assignments because this is a pre-foreclosure action. “Standing is a threshold issue, because without it no justiciable controversy exists. Standing goes to the existence of a cause of action.

There are no facts alleged against Defendant as a mortgagee or trustee for purposes of a wrongful foreclosure claim, nor that Defendant caused any wrongful foreclosure sale. Plaintiffs have not opposed this demurrer. Although it is unlikely that Plaintiffs will successfully amend this cause of action, the demurrer is sustained with twenty (20) days leave to amend.

Without tender of the full amount of indebtedness, plaintiffs cannot maintain any claim for wrongful foreclosure or any claim sounding in wrongful foreclosure. Thus, without tender there is no reasonable probability that plaintiffs will prevail on the merits of their action. (Chavez, supra; Gomes, supra) Plaintiffs fail to address how monetary damages are insufficient to cover their damages.

The Seventh Cause of Action for Intentional Infliction of Emotional Distress is based on allegations that the alleged wrongful foreclosure constituted outrageous conduct. Assuming that premise to be true, Defendant ECP LP is not alleged to be a party responsible for the wrongful foreclosure, but is alleged to be the purchaser of the property at the foreclosure sale.

Demurrer is sustained with leave to amend for Plaintiff to allege facts in support of each element of causes of action for wrongful foreclosure and cancellation of written instruments. Demurrer is overruled regarding Defendant's claims that the statute of limitations has barred Plaintiff's causes of action for wrongful foreclosure and cancellation of written instruments.

For wrongful foreclosure under the HOBR, this cause of action fails because Plaintiff was not the borrower, mortgagor or trustor under the DOT. Plaintiff cannot establish any of the elements of a wrongful foreclosure action. Similarly, Plaintiff’s second cause of action for breach of the covenant of good faith and fair dealing based on a violation of Civ. Code § 2923.55 fails as a matter of law because Plaintiff was not a borrower as defined by the statute.

.: 20CMCV00046 Matter on calendar for: Demurrer Tentative ruling: Background This is a wrongful foreclosure and fraud action. Plaintiffs Manuel Perez and Elda Perez allege defendants engaged in a real estate scam to acquire title to plaintiffs’ home at 843 East 98th Street, Los Angeles, California 90002. The Complaint alleges the following causes of action: Quasi contract; Wrongful foreclosure Fraud; Declaratory relief; and Quiet title Defendant Hector Henriquez now demurs to the Complaint.

The claim was originally pled as wrongful foreclosure—not fraud. When a demurrer is sustained with leave to amend, the scope of amendment is limited to that which the causes of action the demurrer was sustained to. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The court may add a new cause of action if it directly responds to the court’s reason for sustaining the earlier demurrer. (Id.)

BACKGROUND Plaintiff filed a complaint arising from an alleged wrongful foreclosure sale, alleging causes of action for: (1) breach of contract; (2) wrongful foreclosure; (3) violation of the consumer protection act; (4) quiet title; (5) cancellation of deed; and (6) declaratory relief. Moving Defendant filed a demurrer to the complaint. Plaintiff did not file an opposition to Moving Defendant’s demurrer.

Code; Common Law Negligent Misrepresentation; Common Law Fraud; Aiding and Abetting Fraud; Successor and Vicarious Liability; Vicarious Liability for Wrongful Foreclosure for a Non Existing Trust; Successor and Vicarious Liability for Wrongful Foreclosure After Receiving the Tender of Payment and Trespassing; Successor and Vicarious Liability for Wrongful Foreclosure After Receiving the Tender of Payment; Successor and Vicarious Liability for Wrongful Foreclosure & for Violations of the Infant Trust;

Defendants' general demurrer to Plaintiffs' first cause of action for wrongful foreclosure based on the argument that Plaintiffs have not pled an imperfection in the foreclosure process and resulting prejudice is sustained with ten days leave to amend to allege the facts supporting the allegation that the foreclosure sale was void due to the wrong entity having foreclosed, as set out above.

The only argument that APB makes in its motion is that Rosas cannot allege a wrongful foreclosure claim against it because APB was merely a third party purchaser of the property. (Motion at pp. 4–5.)

Analysis Plaintiff’s claims for (1) declaratory relief, (2) wrongful foreclosure; and (3) injunctive relief are all premised on his wrongful foreclosure allegations. Though unclear, Plaintiff appears to advance the theory that the securitization of his loan was defective. However, California law does not require that the assignment of a deed of trust be recorded. See Herrera v.

Tentative Ruling: The court will grant defendant’s motion to stay the current proceedings pending resolution of the title issues in the wrongful foreclosure case.

Discussion 1st cause of action for wrongful foreclosure, 2nd cause of action for fraud, 4th cause of action for Violation of Business and Professions Code section 17200; and 6th cause of action to Quiet Title Plaintiff does not dispute that the wrongful foreclosure, fraud and quiet title actions are subject to a three-year statute of limitations (Code of Civil Procedure section 338(a) and (d)), and the section 17200 claim is subject to a four-year statute of limitations (Business and Professions Code section

Wrongful Foreclosure A Case Management Conference is set for January 24, 2023. Discussion Bank demurs to the first through fourth causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute a cause of action. The court will continue the hearing on the demurrer to January 24, 2023 at 9:30 a.m.

WRONGFUL FORECLOSURE fails because the property was not owner-occupied by Plaintiff Christian. (CC 2924.15.) SET ASIDE FORECLOSURE SALE and CANCELLATION OF INSTRUMENT fail because they are predicated on the defective wrongful foreclosure and contract claims. Accordingly, demurrer is SUSTAINED. As there was no opposition filed, the court will hear from Plaintiffs regarding any grounds warranting leave to amend.

The FAC fails to state a cause of action for wrongful foreclosure.

BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 (declaration of compliance with section 2923.5 was insufficient to sustain demurrer to wrongful foreclosure claim that would postpone foreclosure sale pending statutory compliance).) To the extent the LLC seeks pre-sale injunctive relief in its wrongful foreclosure claim, its wrongful foreclosure claim is ripe and properly plead.

However, the issue of notice is not the theory upon which Plaintiffs have asserted their wrongful foreclosure claim; rather, Plaintiffs' claim is based on alleged improper inclusion of attorney's fees and trustee fees in the amount owed to Bank of the West/Glazer. Further, Plaintiffs have failed to explain how the failure of notice would constitute a basis for a wrongful foreclosure claim.

Intentional Infliction of Emotional Distress and Punitive Damages Disputes regarding wrongful foreclosure support claims and remedies for emotional distress and punitive damages. In an action for wrongful foreclosure, all proximately caused damages may be recovered, such as emotional distress and punitive damages, upon a proper showing. Miles v. Deutsche Bank National Trust Co . (2015) 236 Cal. App. 4th 394, 409-10.

Setting Aside Foreclosure Plaintiff’s eighth cause of action seeks to set aside the wrongful foreclosure. For the reasons set forth above, Plaintiff has failed to allege sufficient facts to state a claim wrongful foreclosure. As a result, Plaintiff cannot be said to have alleged sufficient facts to set aside that foreclosure. Based on the foregoing, Plaintiff’s eight cause of action is sustained, with leave to amend. VI.

Implied Causes of Actions Not Directly Alleged: Breach of Contract and Wrongful Foreclosure Second, defendant also argues that any implied causes of action that could be read from the complaint are subject to demurrer. See Demurrer at pp. 8-10. These include the possible claims of breach of contract and wrongful foreclosure. i.

The FAC alleges two causes of action, one for wrongful foreclosure, and the other for violation of Business and Professions Code § 17200 which is premised on the wrongful foreclosure cause of action. Defendants' request for judicial notice is granted. The court, however, does not accept the truth of any facts within the judicially noticed documents except to the extent such facts are beyond reasonable dispute. (See Poseidon Development, Inc. v.

foreclosure cause of action.

The complaint fails to allege facts sufficient to constitute a cause of action for wrongful foreclosure. Cancellation of Assignments Claim This cause of action is dependent on the wrongful foreclosure cause of action. It is based on the allegation that the Assignments are forgeries or otherwise void. As discussed above, even if forged, the Assignments are not void, but merely voidable.

The complaint fails to allege facts sufficient to constitute a cause of action for wrongful foreclosure. Cancellation of Assignments Claim This cause of action is dependent on the wrongful foreclosure cause of action. It is based on the allegation that the Assignments are void. As discussed above, the Assignments are not void, but merely voidable. This cause of action fails because when "equitable forms of remedies are dependent upon a substantive basis for liability, they have no separate viability.

First COA: Wrongful Foreclosure: SUSTAINED with Leave to Amend “The California Courts of Appeal have identified the following elements of a claim for wrongful foreclosure: ‘(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale

Second Cause of Action – Wrongful Foreclosure The elements of a cause of action for wrongful foreclosure are as follows: (1) a trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property; (2) pursuant to a power of sale contained in a mortgage or deed of trust; and (3) the trustor or mortgagor sustained damages. (Munger v. Moore (1970) 11 Cal. App. 3d 1, 7; see also Sierra-Bay Fed. Land Bank Ass'n v.

The Court sustained the demurrer to the fourth cause of action for wrongful foreclosure and overruled the demurrer to the remaining causes of action. Defendants arguments regarding the second through ninth causes of action are the same as the arguments made in the previous demurrer. This includes the argument regarding the fourth cause of action for wrongful foreclosure.

First, the court finds, and Defendant does not appear to dispute, that Plaintiffs operative complaintalleging causes of action for wrongful foreclosure and quiet titlecontains a real property claim. (Weil and Brown, Civ. Proc. Before Trial (2018) § 9:431 [the allegations of the operative complaint determine whether a real property claim is involved].)

Marty Zachary, Christina Zachary and Mike Maunu (Plaintiffs) bring this wrongful foreclosure action against U.S. Bank National Association, Specialized Loan Servicing LLC, Quality Loan Service Corporation, Wells Fargo Bank and Duke Partners II, LLC. The first amended complaint includes causes of action for wrongful foreclosure, violation of Civil Code §2924.17 and cancellation of instruments. On March 21, 2017, Plaintiffs dismissed Wells Fargo Bank from the action.

First Cause of Action for Wrongful Foreclosure. Plaintiffs seek to set aside the foreclosure sale, but failed to allege tender. (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 578-79; United States Cold Storage v. Great Western Savings and Loan Association (1985) 165 Cal.App.3d 1214, 1222.) The SAC also fails to plead facts sufficient to support the element of an illegal, fraudulent, or willfully oppressive sale of real property a claim for wrongful foreclosure. (Munger v.

The Court’s decision to temporarily stay the unlawful detainer action should not be taken as an indication of the Court’s assessments of the merits of the wrongful foreclosure action. The Court is somewhat skeptical of plaintiffs’ legal theories, and it is conceivable that the wrongful foreclosure action could be resolved at the demurrer stage.

First Cause of Action-Wrongful foreclosure A claim for wrongful foreclosure is premature where there is no allegation that a foreclosure sale has occurred. (Munger v. Moore (1970) 11 Cal.App.3d 1, 7; Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 961.) Further, to the extent Plaintiff alleges that the foreclosure has been initiated by an entity with no standing, the cause of action is deficient.

First Cause of Action (Wrongful Foreclosure): Sustained without leave to amend unless plaintiff can credibly allege that the trustee's sale has taken place. A cause of action for wrongful foreclosure is premature until such time as the foreclosure – i.e., trustee's sale – has occurred. (See Beall v. Quality Loan Service Corp. (S.D.Cal., 2011) 2011 WL 1044148, 3.)

The SAC does not allege a valid claim for wrongful foreclosure. The other causes of action cannot proceed unless a valid wrongful foreclosure claim is pled. The demurrer to the third cause of action for accounting is sustained. The elements of a claim for accounting are as follows: (1) the fiduciary relationship or other circumstances appropriate to the remedy, and (2) a balance due from the defendant to the plaintiff that can only be ascertained by an accounting. (St. James Church of Christ Holiness v.

This action for wrongful foreclosure was filed by Plaintiff BIBI MUHAMMAD’s (in pro per) on July 20, 2018. Plaintiff’s Complaint asserts the following causes of action: (1) Wrongful Foreclosure; (2) Negligence; (3) Violation of Truth in Lending Act; (4) Unfair Business Practices; and (5) Quiet Title. Defendant SMAE, LLC demurs to Plaintiff’s Complaint on the basis that the Complaint is fatally uncertain. This argument is well-taken.

In plaintiff's 2012 first amended complaint against Quality, she had causes of action for slander of title, cancelation of trustee deed, unfair business practices, wrongful foreclosure, and claims under Civil Code section 2923 arising out of the foreclosure procedures on plaintiff's Ramona property.