Preview
Electronically Filed
2/9/2021 9:18 AM
Superior Court of California
1 Jana Logan (SBN 171152)
Matthew H. Aguirre (SBN 270388) County of Stanislaus
2 KIRBY & McGUINN, A P.C. Clerk of the Court
707 Broadway, Suite 1750 By: Mouang Saechao, Deputy
3 San Diego, California 92101
Telephone: (619) 398-3354
4 Facsimile: (619) 398-3355
E-mail: jlogan@kirbymac.com
5 E-mail: maguirre@kirbymac.com
6 Attorneys for Defendants
Fay Servicing, LLC
7 U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust
(erroneously named herein as U.S. Bank National Association)
8 Attorney Lender Services, Inc. (erroneously named herein as Attorney Lender Service, Inc.)
9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF STANISLAUS
11 MAIN COURTHOUSE
12
13 LINDA ROSE EXPOSE CASE NO. CV19005329
14 Plaintiff, U.S. BANK, NATIONAL ASSOCIATION,
AS LEGAL TITLE TRUSTEE FOR
15 v. TRUMAN 2016 SC6 TITLE TRUST’S
OPPOSITION TO PLAINTIFF’S
16 FAY SERVICING, U.S. BANK NATIONAL MOTION TO CONSOLIDATE
ASSOCIATION, ATTORNEY LENDER
17 SERVICE, INC and DOES 1-5, inclusive Date: February 25, 2021
Time: 8:30 a.m.
18 Defendants. Dept.: 22
Judge: Hon. Stacy P. Speiller
19
Date Action Filed: September 5, 2019
20
21 COMES NOW Defendant U.S. Bank, National Association, as Legal Title Trustee for
22 Truman 2016 SC6 Title Trust (“Defendant”) to Oppose Plaintiff’s Motion to Consolidate her
23 unlawful detainer action with the instant action.
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OPPOSITION TO MOTION TO CONSOLIDATE
1 TABLE OF CONTENTS
2 TABLE OF CONTENTS.................................................................................................................... i
3 TABLE OF AUTHORITIES .............................................................................................................. i
4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................... 1
5 I. INTRODUCTION AND BACKGROUND .............................................................. 1
6 II. BACKGROUND FACTS .......................................................................................... 2
7 III. LEGAL STANDARD................................................................................................ 3
8 IV. ARGUMENT ............................................................................................................. 4
9 A. THE MOTION IS PROCEDURALLY DEFECTIVE ...................... 4
10 B. UD ACTIONS ARE ENTITLED TO PRIORITY ............................ 4
11 C. THERE IS NO VIABLE ISSUE OF TITLE ..................................... 5
12 V. PLAINTIFF WILL NOT SUCCEED ON MERITS.................................................. 7
13 A. PLAINTIFF CANNOT SUPPORT A CAUSE OF ACTION FOR
NEGLIGENCE OR FOR FRAUD ................................................................ 7
14
B. PLAINTIFF DOES NOT STATE FACTS TO SUPPORT ANY
15 WRONGFUL FORECLOSURE BASED CAUSE OF ACTION ................. 8
16 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS ................. 9
17 D. VIOLATION OF CALIFORNIA CIVIL CODES § 2923.5 and §2924
FAILS TO SUPPORT A TITLE ISSUE ..................................................... 10
18
VI. CONSOLIDATING THE CASES OR STAYING THE UD ACTION WILL
19 GREATLY PREJUDICE DEFENDANT AND FORCE IT TO INCUR
EXPENSES AND COSTS ...................................................................................... 11
20
VII. IF CONSOLIDATION OR STAY OF THE UD ACTION IS ORDERED,
21 PLAINTIFF MUST POST A BOND ...................................................................... 12
22 VIII. CONCLUSION........................................................................................................ 12
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TABLE OF CONTENTS
1 TABLE OF AUTHORITIES
2 Page(s)
3 Federal Cases
4 Campos v. Bank of Am., Inc.,
No. C 11-0431SBA, 2012 WL 2862603 (N.D. Cal. July 11, 2012) ........................................11
5
6 DeLeon v. Wells Fargo Bank, N.A.,
No. 10-CV-01390-LHK, 2011 U.S. Dist. LEXIS 8296, 2011 WL 311376 (N.D.
7 Cal. 2011).................................................................................................................................10
8 Hinojos v. Kohl’s Corp.,
718 F.3d 1098 (9th Cir. 2013) ...................................................................................................9
9
Javaheri v. JPMorgan Chase Bank,
10
2011 WL 1131518 (C.D.Cal.2011) ........................................................................................... 8
11
Kelley v. Mortgage Electronic Registration Sys., Inc.,
12 642 F.Supp.2d 1048 (N.D.Cal.2009) ....................................................................................... 11
13 Nissim v. Wells Fargo Bank, N.A.,
No. C 12-1201 CW, 2013 WL 192903 (N.D. Cal. Jan. 17, 2013)........................................... 11
14
Penermon v. Wells Fargo Bank, N.A.,
15 47 F. Supp. 3d 982 (2014) ....................................................................................................... 11
16
Wasjutin v. Bank of Am., N.A.,
17 732 F. App’x 513 (9th Cir. 2018) .............................................................................................. 9
18 Zeppeiro v. Green Tree Servicing, LLC,
679 F. App'x 592 (9th Cir. 2017) ............................................................................................. 11
19
California Cases
20
Abba Rubber Co. v. Seaquist (1991)
21 235 Cal.App.3d 1 ..................................................................................................................... 12
22
Askew v. Askew (1994)
23 22 Cal.App.4th 942 .................................................................................................................... 4
24 Asuncion v. Superior Court (1980)
108 Cal.Appl.3d 141 .......................................................................................................... 5, 6, 7
25
California Logistics, Inc. v. State of California (2008)
26 161 Cal.App.4th 242 .................................................................................................................. 9
27 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co. (1999)
28 20 Cal. 4th 163 ........................................................................................................................... 9
i
TABLE OF AUTHORITIES
1 Cheney v. Trauzettel (1937)
9 Cal.2d 158 ...............................................................................................................................5
2
Doe v. City of Los Angeles (2007)
3 42 Cal.4th 531 ............................................................................................................................9
4
Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005)
5 132 Cal.App.4th 1076 ................................................................................................................ 9
6 Fisher v. Nash Bldg. Co. (1952)
113 Cal.App.2d 397 ...................................................................................................................3
7
Gil v. Bank of America, N.A. (2006)
8 138 Cal.App.4th 1371 ................................................................................................................ 7
9 Hamilton v. Greenwich Investors XXVI, LLC (2011)
10 195 Cal.App.4th 1602 .............................................................................................................. 10
11 Korea Supply Co. v. Lockheed Martin Corp.(2003)
29 Cal.4th 1134 .......................................................................................................................... 9
12
Mabry v. Superior Court (2010)
13 185 Cal.App.4th 208 ................................................................................................................ 10
14 Miles v. Deutsche Bank National Trust Co. (2015)
15 236 Cal.App.4th 394 .................................................................................................................. 8
16 Old National Financial Services. Inc. v. Seibert (1987)
194 Cal.App.3d 460 ............................................................................................................... 5, 6
17
Stebley v. Litton Loan Servicing, LLP (2011)
18 202 Cal.App.4th 522 ................................................................................................................ 10
19 Ticconi v. Blue Shield of Cal. Life & Health Ins. (2008)
160 Cal. App. 4th 528 ................................................................................................................ 9
20
21 Federal Statutes
22 11 U.S.C.
§ 362(c)(4)(A)(i) ........................................................................................................................ 3
23
California Statutes
24
Business & Professions Code
25 § 17200 ...................................................................................................................................... 9
26 Civ. Code
27 § 2923.5 ................................................................................................................................... 10
§ 2924 ........................................................................................................................ 6, 8, 10, 11
28 § 2924(a)(6) ............................................................................................................................. 11
§ 2924.12(b) ......................................................................................................................... 5, 11
ii
TABLE OF AUTHORITIES
1 California Code of Civil Procedure
§ 1048(a) .................................................................................................................................... 3
2 § 1179a....................................................................................................................................... 4
§ 1161a....................................................................................................................................... 5
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TABLE OF AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND BACKGROUND
3 This is a foreclosure related action. Plaintiff’s real property was sold at a foreclosure sale
4 after the Court denied an injunction. Before the foreclosure sale was held, Plaintiff filed this action
5 on September 5, 2019. Plaintiff subsequently brought an ex parte application for Temporary
6 Restraining Order and OSC re Preliminary Injunction on September 11, 2019 to stop the Trustee’s
7 sale. This Court granted the ex parte application conditioned on the posting of a $20,000.00 bond
8 and set a hearing on the preliminary injunction for September 26, 2019. At the Order to Show Cause
9 hearing on September 26, 2019, the Court affirmed its tentative and denied the injunction.
10 Defendants Fay Servicing, LLC and U.S. Bank, National Association, as Legal Title Trustee
11 for Truman 2016 SC6 Title Trust filed demurrers to the Complaint and to the First Amended
12 Complaint which have been sustained with leave to amend. Plaintiff filed a Second Amended
13 Complaint in November 2020 and Defendants have renewed their Demurrer which is set for hearing
14 on March 18, 2021.
15 Plaintiff also filed an action in the Eastern District of California on September 17, 2019 and
16 sought a temporary restraining order from the District Court. (See, RJN, Ex. 16.) The District Court
17 denied the motion for the injunction on September 24, 2019. (RJN, Ex. 17 and 18.) The District
18 Court further denied Plaintiff’s motion to proceed in forma pauperis and Plaintiff was ordered to pay
19 the filing fee which she then requested the District Court to allow her to make monthly payments.
20 The monthly payments have been made but the district court complaint was never properly served
21 and is currently subject to dismissal.
22 On November 20, 2019, Defendant (through another attorney) filed an unlawful detainer
23 action (UD 19-001533). On February 4, 2020, Plaintiff filed a Motion to Quash which the UD Court
24 denied. (Mot. at . p. 2.) Plaintiff filed an answer to the UD in February 2020 and the UD trial has
25 been on hold since March 25, 2020 due to Covid and various requests for continuances by Plaintiff.
26 The UD trial is currently set for March 23, 2021 after prolonged continuances.
27
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1
MEMORANDUM OF POINTS AND AUTHORITIES
1 Plaintiff now seeks to consolidate her unlawful detainer case, Stanislaus Superior Court Case
2 No. UD-19-001533 (the “UD”) with the instant civil action. The consolidation motion should be
3 denied.
4 II. BACKGROUND FACTS
5 Plaintiff obtained a mortgage loan from Downey Savings and Loan Association for
6 $368,000.00 on or about August 7, 2006. The mortgage loan is secured by a deed of trust against the
7 real property located at 5413 Pountsmonth Drive, Salida, California 95368 (the “Property”) (the note
8 and deed of trust are collectively referred to as the “Loan”). (Request to Take Judicial Notice
9 [“RJN”], Ex. 1.) The Loan was assigned by the Federal Deposit Insurance Corporation as Receiver
10 of Downey Savings and Loan Association to U.S. Bank, National Association by Assignment of
11 Deed of Trust dated May 23, 2012 effective November 21, 2008. (RJN, Ex. 2.) The Loan was then
12 assigned by U.S. Bank, National Association to U.S. Bank, National Association, as Legal Title
13 Trustee for Truman 2016 SC6 Title Trust by Assignment of Deed of Trust dated January 31, 2019.
14 The current beneficiary of the mortgage Loan is U.S. Bank, National Association, as Legal Title
15 Trustee for Truman 2016 SC6 Title Trust (“Defendant” or “Truman Trust”). (RJN, Ex. 3.)
16 Plaintiff received a HAMP (Home Affordable Modification Program) loan modification in
17 2015. The HAMP loan modification lowered Plaintiff’s interest rate to 2.0% for five (5) years and
18 deferred $144,900.00 of her defaulted principal balance to non-interest bearing. (RJN, Ex. 11.) The
19 first payment under the HAMP loan modification was due April 1, 2015. (RJN, Ex. 11, page 4 of 11,
20 para. C.)
21 To delay foreclosure over the course of the past eight years, Plaintiff filed a series of seven
22 (7) bankruptcies, shown below in table format. (RJN, Ex. 4–10.)
23 In re Linda Rose Expose, Filed 01/31/2012 Dismissed 05/01/14 RJN, Ex. 4
Petition #: 12-90283
24
25 In re Linda Expose, Filed 01/12/15 Discharged 06/18/15 RJN, Ex. 5
Petition #: 15-90024
26
In re Linda Rose Expose, Filed 01/26/16 Dismissed 02/17/16 RJN, Ex. 6
27 Petition #: 16-90057
28
In re Linda Rose Expose, Filed 03/01/16 Dismissed 05/24/16 RJN, Ex. 7
Petition #: 16-90161 (NOD recorded
2
MEMORANDUM OF POINTS AND AUTHORITIES
1 12/11/18)
2 In re Linda Rose Expose, Filed 01/30/19 Dismissed 04/09/19 RJN, Ex. 8 [Doc 34]
3 Petition #: 19-90079
4 In re Linda Rose Expose, Filed 04/09/19 Dismissed 06/26/19 RJN, Ex. 9 [Doc 48]
Petition #: 19-90314
5
In re Linda Rose Expose, Filed 07/01/19 Dismissed 10/24/19 RJN, Ex. 10
6
Petition #: 19-90599 (NOTS recorded
7 8/15/19) -NO STAY
8
9
10 On December 13, 2018, the prior owner of the Loan, U.S. Bank, National Association,
11 recorded the operative Notice of Default (“NOD”) against the Property (in between bankruptcies
12 number 4 and 5). (RJN, Ex. 12.) The operative Notice of Trustee’s Sale (“NOTS”) was recorded
13 over 8 months later on August 15, 2019. (RJN, Ex. 14.) Due to the fact that Plaintiff had filed three
14 bankruptcies in the past one (1) year, Plaintiff was not entitled to an automatic stay in her
15 bankruptcy filed on July 1, 2019. (See, 11 U.S.C. § 362(c)(4)(A)(i); and see, RJN, Ex. 8–10
16 [bankruptcies filed 01/30/19, 04/09/19 and 07/01/19].) As no automatic stay was in effect, the
17 foreclosure sale was held on September 30, 2019 and a Trustee’s Deed Upon Sale (“TDUS”) was
18 recorded on October 2, 2019. (RJN, Ex. 15.)
19 III. LEGAL STANDARD
20 Under Code of Civil Procedure § 1048(a), when actions involving a common question of law
21 or fact are pending before a court, it may order a joint hearing or trial of any or all of the matters at
22 issue in the actions; it may order all the actions consolidated and it may make such orders
23 concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Code Civ. Proc. §
24 1048(a).)
25 Consolidation of actions is not a matter of right but rests within sound discretion of the trial
26 judge, and her decision will not be reviewed except upon clear showing of abuse of discretion.
27 (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397.) Evident from this, consolidation is
28 discretionary. Indeed, even actions that involve common issues of law or fact should not be
3
MEMORANDUM OF POINTS AND AUTHORITIES
1 consolidated if the trial court, in its sound discretion, chooses not to do so. (See Askew v. Askew
2 (1994) 22 Cal.App.4th 942.)
3 IV. ARGUMENT
4 A. THE MOTION IS PROCEDURALLY DEFECTIVE
5 As an initial matter, in this action, Plaintiff is represented by counsel who did not file the
6 instant motion nor has Plaintiff substituted herself in as pro per in this action. (See, Substitution of
7 Attorney filed November 19, 2020.)
8 Additionally, the Motion should be denied as Plaintiff did not follow the procedure to request
9 consolidation. 1 In relevant part, a notice of motion to consolidate must “list all named parties in
10 each case, the names of those who have appeared, and the names of their respective attorneys of
11 record” and must “be filed in each case sought to be consolidated.” (CRC 3.350(a)(1).) A motion to
12 consolidate must “be served on all attorneys of record in all of the cases sought to be consolidated.”
13 (CRC 3.350(a)(2).)
14 Here, Plaintiff’s Motion does not list all attorneys of record in each case sought to be
15 consolidated, does not provide the names of those who have appeared in the two actions and does
16 not provide the names of the attorneys of record. Rather, the motion only lists the parties to the Civil
17 Action and refers generally to “their attorney of record.” (Notice of Motion, p. 2:10–11.)
18 In addition, Plaintiff did not file her Notice of Motion in the UD Action. Plaintiff’s Motion
19 should be denied as procedurally improper.
20 B. UD ACTIONS ARE ENTITLED TO PRIORITY
21 The UD Action is entitled to precedence under California Code of Civil Procedure § 1179a.
22 Section 1179a states:
23
In all proceedings brought to recover the possession of real property pursuant to the
24 provisions of this chapter all courts, wherein such actions are or may hereafter be
pending, shall give such actions precedence over all other civil actions therein, except
25 actions to which special precedence is given by law, in the matter of the setting the
same for hearing or trial, and in hearing the same, to the end that all such actions shall
26 be quickly heard and determined.
27
28 1
It is also noted here that the caption of Plaintiff’s Motion is devoid of a notice of motion and
fails to reference the two cases involved with the consolidation.
4
MEMORANDUM OF POINTS AND AUTHORITIES
1 Under California law, the expeditious hearing of possession to the Property is a statutory
2 right that should not be disturbed. Despite the fact that the UD action has lingered on for over a year
3 without being concluded, it is stillentitled to priority. On this basis, Plaintiff’s Motion should be
4 denied.
5 C. THERE IS NO VIABLE ISSUE OF TITLE
6 Plaintiff moves to consolidate these cases, but Plaintiff is not litigating any issues of title
7 against Defendant which may, in appropriate circumstances, constitute grounds for consolidation.
8 Plaintiff’s allegations do not create a title issue as the Trustee’s Deed Upon Sale has recorded. Once
9 the Trustee’s Deed Upon Sale has been recorded, Plaintiff’s only remedy is monetary damages for
10 her Homeowner Bill of Rights (“HBOR”) claims. (Civ. Code § 2924.12(b).) Further, any causes of
11 action under HBOR do not support an issue of title. And Plaintiff cannot quiet title or set aside the
12 Trustee’s Sale without tendering the debt as argued below.
13 Further, Plaintiff fails to show that the decision in Asuncion v. Superior Court (1980) 108
14 Cal.Appl.3d 141 necessitates a consolidation of cases or a stay of the UD Action in this instance.
15 The allegations in the Motion to Consolidate – failure to record an assignment before foreclosure –
16 are not set forth in her Second Amended Complaint and, more importantly, are not supported by
17 facts. In fact, that assignment was recorded. (See, RJN, Ex. 1, 2 and 3.)
18 As a general rule, in unlawful detainer proceedings, only claims bearing directly upon the
19 right to possession are involved. However, where title is acquired through proceedings described in
20 Code Civ. Proc. § 1161a, courts must make a limited inquiry into the basis of the unlawful detainer
21 plaintiff’s title. (Old National Financial Services. Inc. v. Seibert (1987) 194 Cal.App.3d 460.) Where
22 the plaintiff in the unlawful detainer action is the purchaser at a trustee’s sale, it need only prove a
23 sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the
24 defendant may raise objections only on that phase of the issue of title. Matters affecting the validity
25 of the trust deed or primary obligation itself, or other basic defects in the plaintiff’s title, are neither
26 properly raised in this summary proceeding for possession, nor are they concluded by the judgment.
27 (Cheney v. Trauzettel (1937) 9 Cal.2d 158.)
28
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MEMORANDUM OF POINTS AND AUTHORITIES
1 Certain issues have been held sufficient to support a stay of an unlawful detainer action. In
2 Asuncion, the unlawful detainer defendants directly challenged the manner in which the unlawful
3 detainer plaintiff had obtained titleto the property (i.e., that it had procured the deed of trust by
4 fraud). (Asuncion v. Superior Court, 108 Cal.App.3d at 143 [plaintiffs alleging that the unlawful
5 detainer plaintiff “induces the homeowners to sign legal papers which they do not understand and
6 which obligate the homeowners to repay sums greatly in excess of their present undertakings, charge
7 usurious rates of interest, and, unbeknownst to the homeowners, grant [the unlawful detainer
8 plaintiff] legal title to the property”].)
9 Here, Plaintiff does not allege circumstances similar to those in Asuncion. Rather, Plaintiff
10 contends that the assignment of the deed of trust was not made. (Mot. at p. 3-4.) As shown in
11 Exhibits 1, 2 and 3 to the RJN, there is no break in the chain of title. There are no Asuncion issues
12 present in this action. Plaintiff defaulted on her mortgage, could no longer stay the foreclosure sale
13 with bankruptcy filings or an injunction and a valid foreclosure sale followed.
14 In Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, Seibert, the
15 unlawful detainer defendant, filed a separate action alleging that he became unable to pay his
16 mortgage because of fraud relating to third-party loans. In that case, Seibert was attempting to stay
17 the unlawful detainer action while his allegations of mortgage fraud were litigated, which would
18 have potentially provided him with a defense to the unlawful detainer action. (Id. at 464.) The court
19 denied the stay, holding that the only points at issue in the unlawful detainer action were whether the
20 property had been sold in accordance with Civil Code § 2924 and whether title obtained by the
21 buyer at the trustee’s sale had been perfected. The Court went on to state that the alleged fraud does
22 not have any bearing on the issues to be determined in the unlawful detainer action, and that
23 complex fraud charges are beyond the phase of title which may be litigated in an unlawful detainer
24 proceeding. (Id. at 465.) In addition, the pendency of another action concerning title is immaterial to
25 the resolution of an unlawful detainer proceeding. (Id.)
26 The issues in the instant Civil Action are subtler than those in Old National. The Civil Action
27 does not allege facts to show that the deed of trust was fraudulently procured by Defendants or that
28 title pursuant to the deed of trust was not duly perfected. (See SAC, in general.)
6
MEMORANDUM OF POINTS AND AUTHORITIES
1 A consolidation or stay of the UD Action would be tantamount to an injunction precluding
2 eviction. The Motion does not assert circumstances supporting the issuance of a preliminary
3 injunction. (See, Asuncion v. Superior Court, 108 Cal.App.3d at 146–147.) At best, Plaintiff might
4 seek damages under the allegations of the SAC (although Defendant denies that Plaintiff is entitled
5 to any award). There are no title issues here, and the cases should not be consolidated or stayed.
6 Finally, Plaintiff is unable to maintain an action to quiet title or to otherwise set aside the
7 foreclosure sale. The foreclosure sale was held and is valid. This Motion is a delay tactic and should
8 be denied.
9 V. PLAINTIFF WILL NOT SUCCEED ON MERITS
10 A. PLAINTIFF CANNOT SUPPORT A CAUSE OF ACTION FOR
11 NEGLIGENCE OR FOR FRAUD
12 In order to state a cause of action for negligence, Plaintiff must be more specific as to what
13 constituted the negligence, what was the duty to do what and how was that duty breached. The only
14 allegations are that the Defendants had a duty to exercise reasonable care. (SAC, ¶¶ 1-2.) This is
15 insufficient to state a cause of action for negligence.
16 Plaintiff bases her second cause of action for fraud on the same theory. Fraud is even a
17 higher pleading standard which is missing from the SAC. The elements of fraud are a
18 misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting
19 damage. [Citation.] Fraud causes of action must be pled with specificity in order to give notice to the
20 defendant and to furnish him or her with definite charges. [Citation.] In drafting the complaint, “ ‘(a)
21 [g]eneral pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud
22 must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper
23 manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will
24 not ordinarily be invoked to sustain a pleading defective in any material respect.” [Citations.]’
25 [Citation.]” (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.) The SAC is
26 woefully deficient in the first two causes of action and the demurrer should be sustained without
27 leave to amend. The amended complaints filed by Plaintiff simply make absolutely no factual
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MEMORANDUM OF POINTS AND AUTHORITIES
1 allegations against Defendant and despite having now filed three operative complaints, this demurrer
2 should be sustained without leave to amend.
3 B. PLAINTIFF DOES NOT STATE FACTS TO SUPPORT ANY WRONGFUL
4 FORECLOSURE BASED CAUSE OF ACTION
5 Plaintiff sets forth various causes of action all based on her theories that the foreclosure sale
6 was illegal. The third, fourth, fifth, and eighth (quiet title) and ninth (slander of title) causes of
7 action all stem from Plaintiff’s theory that defendants were not authorized to substitute a trustee or
8 otherwise act, and the assignment of the loan was improper. None of the theories are supported by
9 law or the actual facts.
10 The elements of a cause of action for wrongful foreclosure are “ ‘(1) the trustee or mortgagee
11 caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale
12 in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or
13 mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the
14 sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from
15 tendering.’ [Citation.]” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,
16 408.)
17 The SAC allegations are insufficient to prove any of these elements; plaintiff did not allege
18 that she tendered the amount of her debt or was excused from doing so, or that she has suffered
19 actual harm or prejudice.
20 The SAC alleges no facts to support its allegation that the note was not assigned together
21 with the deeds of trust and there is no requirement to hold the original note and deed of trust in order
22 to foreclose. Under California law, there is no requirement for the production of an original
23 promissory note prior to initiation of a nonjudicial foreclosure. California Civil Code § 2924
24 includes several requirements for non-judicial foreclosure, but “[n]othing in [§ 2924] requires the
25 entity initiating foreclosure to have physical possession of the note. [C]ourts have uniformly found
26 that ‘physical possession of the original promissory note is not a prerequisite to initiating foreclosure
27 proceedings.’ ” (Javaheri v. JPMorgan Chase Bank, 2011 WL 1131518 at *2 (C.D.Cal.2011)
28
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MEMORANDUM OF POINTS AND AUTHORITIES
1 (quoting Nguyen v. LaSalle Bank Nat'l Ass'n, 2009 WL 3297269 at *3 (C.D.Cal.2009)). Plaintiff’s
2 claims otherwise are invalid.
3 To withstand a demurrer, the complaint must set forth the essential facts to support a claim.
4 (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th
5 1076, 1099.) While most claims can be supported by ultimate rather than evidentiary facts, legal
6 conclusions are insufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550–551 & fn. 5.)
7 By the same token, the court “assume[s] the truth of the allegations in the complaint but do[es] not
8 assume the truth of contentions, deductions, or conclusions of law. [Citation.]” (California Logistics,
9 Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The SAC is simply devoid of facts to
10 support the wrongful foreclosure-based causes of action.
11 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS
12 Plaintiff brings an unfair and deceptive practices act (“UCL”) claim under § 17200 as the
13 seventh cause of action on the caption yet the body of the SAC is devoid of any charging allegations.
14 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair,
15 deceptive, untrue or misleading advertising...” (Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th
16 Cir. 2013), as amended on denial of reh’g and reh’g en banc (July 8, 2013). “Because Business &
17 Professions Code § 17200 is written in the disjunctive, it establishes three varieties of unfair
18 competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Cel-Tech Commc’ns,
19 Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 180.)
20 With respect to the UCL’s “unlawful” prong, Plaintiff does not viably allege an unlawful
21 business practice, i.e., anything that can be called a business practice and that is forbidden by law.
22 (Ticconi v. Blue Shield of Cal. Life & Health Ins. (2008) 160 Cal. App. 4th 528, 539.) And, absent
23 any predicate violation of statute or common law, there is no basis for invoking the UCL’s
24 “unlawful” prong. (Wasjutin v. Bank of Am., N.A., 732 F. App’x 513, 517 (9th Cir. 2018).
25 To the extent the UCL relies on the wrongful foreclosure theories, the UCL claim is
26 derivative of the wrongful foreclosure and rescission causes of action and stands or falls with the
27 underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134, 1143
28
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MEMORANDUM OF POINTS AND AUTHORITIES
1 [UCL “ ‘borrows' violations from other laws by making them independently actionable as unfair
2 competitive practices”].) The UCL cause of action fails.
3 Finally, as Plaintiff‘s property was subject to nonjudicial foreclosure because of Plaintiff‘s
4 default on her loan, which occurred before Defendant’s alleged wrongful acts, Plaintiff cannot assert
5 the impending foreclosure of her home (i.e., her alleged economic injury) was caused by
6 Defendant’s wrongful actions. Plaintiff‘s SAC cannot show
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Electronically Filed 2/9/2021 9:18 AM Superior Court of California 1 Jana Logan (SBN 171152) Matthew H. Aguirre (SBN 270388) County of Stanislaus 2 KIRBY & McGUINN, A P.C. Clerk of the Court 707 Broadway, Suite 1750 By: Mouang Saechao, Deputy 3 San Diego, California 92101 Telephone: (619) 398-3354 4 Facsimile: (619) 398-3355 E-mail: jlogan@kirbymac.com 5 E-mail: maguirre@kirbymac.com 6 Attorneys for Defendants Fay Servicing, LLC 7 U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust (erroneously named herein as U.S. Bank National Association) 8 Attorney Lender Services, Inc. (erroneously named herein as Attorney Lender Service, Inc.) 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF STANISLAUS 11 MAIN COURTHOUSE 12 13 LINDA ROSE EXPOSE CASE NO. CV19005329 14 Plaintiff, U.S. BANK, NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR 15 v. TRUMAN 2016 SC6 TITLE TRUST’S OPPOSITION TO PLAINTIFF’S 16 FAY SERVICING, U.S. BANK NATIONAL MOTION TO CONSOLIDATE ASSOCIATION, ATTORNEY LENDER 17 SERVICE, INC and DOES 1-5, inclusive Date: February 25, 2021 Time: 8:30 a.m. 18 Defendants. Dept.: 22 Judge: Hon. Stacy P. Speiller 19 Date Action Filed: September 5, 2019 20 21 COMES NOW Defendant U.S. Bank, National Association, as Legal Title Trustee for 22 Truman 2016 SC6 Title Trust (“Defendant”) to Oppose Plaintiff’s Motion to Consolidate her 23 unlawful detainer action with the instant action. 24 25 26 27 28 1 OPPOSITION TO MOTION TO CONSOLIDATE 1 TABLE OF CONTENTS 2 TABLE OF CONTENTS.................................................................................................................... i 3 TABLE OF AUTHORITIES .............................................................................................................. i 4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................... 1 5 I. INTRODUCTION AND BACKGROUND .............................................................. 1 6 II. BACKGROUND FACTS .......................................................................................... 2 7 III. LEGAL STANDARD................................................................................................ 3 8 IV. ARGUMENT ............................................................................................................. 4 9 A. THE MOTION IS PROCEDURALLY DEFECTIVE ...................... 4 10 B. UD ACTIONS ARE ENTITLED TO PRIORITY ............................ 4 11 C. THERE IS NO VIABLE ISSUE OF TITLE ..................................... 5 12 V. PLAINTIFF WILL NOT SUCCEED ON MERITS.................................................. 7 13 A. PLAINTIFF CANNOT SUPPORT A CAUSE OF ACTION FOR NEGLIGENCE OR FOR FRAUD ................................................................ 7 14 B. PLAINTIFF DOES NOT STATE FACTS TO SUPPORT ANY 15 WRONGFUL FORECLOSURE BASED CAUSE OF ACTION ................. 8 16 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS ................. 9 17 D. VIOLATION OF CALIFORNIA CIVIL CODES § 2923.5 and §2924 FAILS TO SUPPORT A TITLE ISSUE ..................................................... 10 18 VI. CONSOLIDATING THE CASES OR STAYING THE UD ACTION WILL 19 GREATLY PREJUDICE DEFENDANT AND FORCE IT TO INCUR EXPENSES AND COSTS ...................................................................................... 11 20 VII. IF CONSOLIDATION OR STAY OF THE UD ACTION IS ORDERED, 21 PLAINTIFF MUST POST A BOND ...................................................................... 12 22 VIII. CONCLUSION........................................................................................................ 12 23 24 25 26 27 28 i TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Federal Cases 4 Campos v. Bank of Am., Inc., No. C 11-0431SBA, 2012 WL 2862603 (N.D. Cal. July 11, 2012) ........................................11 5 6 DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2011 U.S. Dist. LEXIS 8296, 2011 WL 311376 (N.D. 7 Cal. 2011).................................................................................................................................10 8 Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) ...................................................................................................9 9 Javaheri v. JPMorgan Chase Bank, 10 2011 WL 1131518 (C.D.Cal.2011) ........................................................................................... 8 11 Kelley v. Mortgage Electronic Registration Sys., Inc., 12 642 F.Supp.2d 1048 (N.D.Cal.2009) ....................................................................................... 11 13 Nissim v. Wells Fargo Bank, N.A., No. C 12-1201 CW, 2013 WL 192903 (N.D. Cal. Jan. 17, 2013)........................................... 11 14 Penermon v. Wells Fargo Bank, N.A., 15 47 F. Supp. 3d 982 (2014) ....................................................................................................... 11 16 Wasjutin v. Bank of Am., N.A., 17 732 F. App’x 513 (9th Cir. 2018) .............................................................................................. 9 18 Zeppeiro v. Green Tree Servicing, LLC, 679 F. App'x 592 (9th Cir. 2017) ............................................................................................. 11 19 California Cases 20 Abba Rubber Co. v. Seaquist (1991) 21 235 Cal.App.3d 1 ..................................................................................................................... 12 22 Askew v. Askew (1994) 23 22 Cal.App.4th 942 .................................................................................................................... 4 24 Asuncion v. Superior Court (1980) 108 Cal.Appl.3d 141 .......................................................................................................... 5, 6, 7 25 California Logistics, Inc. v. State of California (2008) 26 161 Cal.App.4th 242 .................................................................................................................. 9 27 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 28 20 Cal. 4th 163 ........................................................................................................................... 9 i TABLE OF AUTHORITIES 1 Cheney v. Trauzettel (1937) 9 Cal.2d 158 ...............................................................................................................................5 2 Doe v. City of Los Angeles (2007) 3 42 Cal.4th 531 ............................................................................................................................9 4 Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 5 132 Cal.App.4th 1076 ................................................................................................................ 9 6 Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397 ...................................................................................................................3 7 Gil v. Bank of America, N.A. (2006) 8 138 Cal.App.4th 1371 ................................................................................................................ 7 9 Hamilton v. Greenwich Investors XXVI, LLC (2011) 10 195 Cal.App.4th 1602 .............................................................................................................. 10 11 Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134 .......................................................................................................................... 9 12 Mabry v. Superior Court (2010) 13 185 Cal.App.4th 208 ................................................................................................................ 10 14 Miles v. Deutsche Bank National Trust Co. (2015) 15 236 Cal.App.4th 394 .................................................................................................................. 8 16 Old National Financial Services. Inc. v. Seibert (1987) 194 Cal.App.3d 460 ............................................................................................................... 5, 6 17 Stebley v. Litton Loan Servicing, LLP (2011) 18 202 Cal.App.4th 522 ................................................................................................................ 10 19 Ticconi v. Blue Shield of Cal. Life & Health Ins. (2008) 160 Cal. App. 4th 528 ................................................................................................................ 9 20 21 Federal Statutes 22 11 U.S.C. § 362(c)(4)(A)(i) ........................................................................................................................ 3 23 California Statutes 24 Business & Professions Code 25 § 17200 ...................................................................................................................................... 9 26 Civ. Code 27 § 2923.5 ................................................................................................................................... 10 § 2924 ........................................................................................................................ 6, 8, 10, 11 28 § 2924(a)(6) ............................................................................................................................. 11 § 2924.12(b) ......................................................................................................................... 5, 11 ii TABLE OF AUTHORITIES 1 California Code of Civil Procedure § 1048(a) .................................................................................................................................... 3 2 § 1179a....................................................................................................................................... 4 § 1161a....................................................................................................................................... 5 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii TABLE OF AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND BACKGROUND 3 This is a foreclosure related action. Plaintiff’s real property was sold at a foreclosure sale 4 after the Court denied an injunction. Before the foreclosure sale was held, Plaintiff filed this action 5 on September 5, 2019. Plaintiff subsequently brought an ex parte application for Temporary 6 Restraining Order and OSC re Preliminary Injunction on September 11, 2019 to stop the Trustee’s 7 sale. This Court granted the ex parte application conditioned on the posting of a $20,000.00 bond 8 and set a hearing on the preliminary injunction for September 26, 2019. At the Order to Show Cause 9 hearing on September 26, 2019, the Court affirmed its tentative and denied the injunction. 10 Defendants Fay Servicing, LLC and U.S. Bank, National Association, as Legal Title Trustee 11 for Truman 2016 SC6 Title Trust filed demurrers to the Complaint and to the First Amended 12 Complaint which have been sustained with leave to amend. Plaintiff filed a Second Amended 13 Complaint in November 2020 and Defendants have renewed their Demurrer which is set for hearing 14 on March 18, 2021. 15 Plaintiff also filed an action in the Eastern District of California on September 17, 2019 and 16 sought a temporary restraining order from the District Court. (See, RJN, Ex. 16.) The District Court 17 denied the motion for the injunction on September 24, 2019. (RJN, Ex. 17 and 18.) The District 18 Court further denied Plaintiff’s motion to proceed in forma pauperis and Plaintiff was ordered to pay 19 the filing fee which she then requested the District Court to allow her to make monthly payments. 20 The monthly payments have been made but the district court complaint was never properly served 21 and is currently subject to dismissal. 22 On November 20, 2019, Defendant (through another attorney) filed an unlawful detainer 23 action (UD 19-001533). On February 4, 2020, Plaintiff filed a Motion to Quash which the UD Court 24 denied. (Mot. at . p. 2.) Plaintiff filed an answer to the UD in February 2020 and the UD trial has 25 been on hold since March 25, 2020 due to Covid and various requests for continuances by Plaintiff. 26 The UD trial is currently set for March 23, 2021 after prolonged continuances. 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES 1 Plaintiff now seeks to consolidate her unlawful detainer case, Stanislaus Superior Court Case 2 No. UD-19-001533 (the “UD”) with the instant civil action. The consolidation motion should be 3 denied. 4 II. BACKGROUND FACTS 5 Plaintiff obtained a mortgage loan from Downey Savings and Loan Association for 6 $368,000.00 on or about August 7, 2006. The mortgage loan is secured by a deed of trust against the 7 real property located at 5413 Pountsmonth Drive, Salida, California 95368 (the “Property”) (the note 8 and deed of trust are collectively referred to as the “Loan”). (Request to Take Judicial Notice 9 [“RJN”], Ex. 1.) The Loan was assigned by the Federal Deposit Insurance Corporation as Receiver 10 of Downey Savings and Loan Association to U.S. Bank, National Association by Assignment of 11 Deed of Trust dated May 23, 2012 effective November 21, 2008. (RJN, Ex. 2.) The Loan was then 12 assigned by U.S. Bank, National Association to U.S. Bank, National Association, as Legal Title 13 Trustee for Truman 2016 SC6 Title Trust by Assignment of Deed of Trust dated January 31, 2019. 14 The current beneficiary of the mortgage Loan is U.S. Bank, National Association, as Legal Title 15 Trustee for Truman 2016 SC6 Title Trust (“Defendant” or “Truman Trust”). (RJN, Ex. 3.) 16 Plaintiff received a HAMP (Home Affordable Modification Program) loan modification in 17 2015. The HAMP loan modification lowered Plaintiff’s interest rate to 2.0% for five (5) years and 18 deferred $144,900.00 of her defaulted principal balance to non-interest bearing. (RJN, Ex. 11.) The 19 first payment under the HAMP loan modification was due April 1, 2015. (RJN, Ex. 11, page 4 of 11, 20 para. C.) 21 To delay foreclosure over the course of the past eight years, Plaintiff filed a series of seven 22 (7) bankruptcies, shown below in table format. (RJN, Ex. 4–10.) 23 In re Linda Rose Expose, Filed 01/31/2012 Dismissed 05/01/14 RJN, Ex. 4 Petition #: 12-90283 24 25 In re Linda Expose, Filed 01/12/15 Discharged 06/18/15 RJN, Ex. 5 Petition #: 15-90024 26 In re Linda Rose Expose, Filed 01/26/16 Dismissed 02/17/16 RJN, Ex. 6 27 Petition #: 16-90057 28 In re Linda Rose Expose, Filed 03/01/16 Dismissed 05/24/16 RJN, Ex. 7 Petition #: 16-90161 (NOD recorded 2 MEMORANDUM OF POINTS AND AUTHORITIES 1 12/11/18) 2 In re Linda Rose Expose, Filed 01/30/19 Dismissed 04/09/19 RJN, Ex. 8 [Doc 34] 3 Petition #: 19-90079 4 In re Linda Rose Expose, Filed 04/09/19 Dismissed 06/26/19 RJN, Ex. 9 [Doc 48] Petition #: 19-90314 5 In re Linda Rose Expose, Filed 07/01/19 Dismissed 10/24/19 RJN, Ex. 10 6 Petition #: 19-90599 (NOTS recorded 7 8/15/19) -NO STAY 8 9 10 On December 13, 2018, the prior owner of the Loan, U.S. Bank, National Association, 11 recorded the operative Notice of Default (“NOD”) against the Property (in between bankruptcies 12 number 4 and 5). (RJN, Ex. 12.) The operative Notice of Trustee’s Sale (“NOTS”) was recorded 13 over 8 months later on August 15, 2019. (RJN, Ex. 14.) Due to the fact that Plaintiff had filed three 14 bankruptcies in the past one (1) year, Plaintiff was not entitled to an automatic stay in her 15 bankruptcy filed on July 1, 2019. (See, 11 U.S.C. § 362(c)(4)(A)(i); and see, RJN, Ex. 8–10 16 [bankruptcies filed 01/30/19, 04/09/19 and 07/01/19].) As no automatic stay was in effect, the 17 foreclosure sale was held on September 30, 2019 and a Trustee’s Deed Upon Sale (“TDUS”) was 18 recorded on October 2, 2019. (RJN, Ex. 15.) 19 III. LEGAL STANDARD 20 Under Code of Civil Procedure § 1048(a), when actions involving a common question of law 21 or fact are pending before a court, it may order a joint hearing or trial of any or all of the matters at 22 issue in the actions; it may order all the actions consolidated and it may make such orders 23 concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Code Civ. Proc. § 24 1048(a).) 25 Consolidation of actions is not a matter of right but rests within sound discretion of the trial 26 judge, and her decision will not be reviewed except upon clear showing of abuse of discretion. 27 (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397.) Evident from this, consolidation is 28 discretionary. Indeed, even actions that involve common issues of law or fact should not be 3 MEMORANDUM OF POINTS AND AUTHORITIES 1 consolidated if the trial court, in its sound discretion, chooses not to do so. (See Askew v. Askew 2 (1994) 22 Cal.App.4th 942.) 3 IV. ARGUMENT 4 A. THE MOTION IS PROCEDURALLY DEFECTIVE 5 As an initial matter, in this action, Plaintiff is represented by counsel who did not file the 6 instant motion nor has Plaintiff substituted herself in as pro per in this action. (See, Substitution of 7 Attorney filed November 19, 2020.) 8 Additionally, the Motion should be denied as Plaintiff did not follow the procedure to request 9 consolidation. 1 In relevant part, a notice of motion to consolidate must “list all named parties in 10 each case, the names of those who have appeared, and the names of their respective attorneys of 11 record” and must “be filed in each case sought to be consolidated.” (CRC 3.350(a)(1).) A motion to 12 consolidate must “be served on all attorneys of record in all of the cases sought to be consolidated.” 13 (CRC 3.350(a)(2).) 14 Here, Plaintiff’s Motion does not list all attorneys of record in each case sought to be 15 consolidated, does not provide the names of those who have appeared in the two actions and does 16 not provide the names of the attorneys of record. Rather, the motion only lists the parties to the Civil 17 Action and refers generally to “their attorney of record.” (Notice of Motion, p. 2:10–11.) 18 In addition, Plaintiff did not file her Notice of Motion in the UD Action. Plaintiff’s Motion 19 should be denied as procedurally improper. 20 B. UD ACTIONS ARE ENTITLED TO PRIORITY 21 The UD Action is entitled to precedence under California Code of Civil Procedure § 1179a. 22 Section 1179a states: 23 In all proceedings brought to recover the possession of real property pursuant to the 24 provisions of this chapter all courts, wherein such actions are or may hereafter be pending, shall give such actions precedence over all other civil actions therein, except 25 actions to which special precedence is given by law, in the matter of the setting the same for hearing or trial, and in hearing the same, to the end that all such actions shall 26 be quickly heard and determined. 27 28 1 It is also noted here that the caption of Plaintiff’s Motion is devoid of a notice of motion and fails to reference the two cases involved with the consolidation. 4 MEMORANDUM OF POINTS AND AUTHORITIES 1 Under California law, the expeditious hearing of possession to the Property is a statutory 2 right that should not be disturbed. Despite the fact that the UD action has lingered on for over a year 3 without being concluded, it is stillentitled to priority. On this basis, Plaintiff’s Motion should be 4 denied. 5 C. THERE IS NO VIABLE ISSUE OF TITLE 6 Plaintiff moves to consolidate these cases, but Plaintiff is not litigating any issues of title 7 against Defendant which may, in appropriate circumstances, constitute grounds for consolidation. 8 Plaintiff’s allegations do not create a title issue as the Trustee’s Deed Upon Sale has recorded. Once 9 the Trustee’s Deed Upon Sale has been recorded, Plaintiff’s only remedy is monetary damages for 10 her Homeowner Bill of Rights (“HBOR”) claims. (Civ. Code § 2924.12(b).) Further, any causes of 11 action under HBOR do not support an issue of title. And Plaintiff cannot quiet title or set aside the 12 Trustee’s Sale without tendering the debt as argued below. 13 Further, Plaintiff fails to show that the decision in Asuncion v. Superior Court (1980) 108 14 Cal.Appl.3d 141 necessitates a consolidation of cases or a stay of the UD Action in this instance. 15 The allegations in the Motion to Consolidate – failure to record an assignment before foreclosure – 16 are not set forth in her Second Amended Complaint and, more importantly, are not supported by 17 facts. In fact, that assignment was recorded. (See, RJN, Ex. 1, 2 and 3.) 18 As a general rule, in unlawful detainer proceedings, only claims bearing directly upon the 19 right to possession are involved. However, where title is acquired through proceedings described in 20 Code Civ. Proc. § 1161a, courts must make a limited inquiry into the basis of the unlawful detainer 21 plaintiff’s title. (Old National Financial Services. Inc. v. Seibert (1987) 194 Cal.App.3d 460.) Where 22 the plaintiff in the unlawful detainer action is the purchaser at a trustee’s sale, it need only prove a 23 sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the 24 defendant may raise objections only on that phase of the issue of title. Matters affecting the validity 25 of the trust deed or primary obligation itself, or other basic defects in the plaintiff’s title, are neither 26 properly raised in this summary proceeding for possession, nor are they concluded by the judgment. 27 (Cheney v. Trauzettel (1937) 9 Cal.2d 158.) 28 5 MEMORANDUM OF POINTS AND AUTHORITIES 1 Certain issues have been held sufficient to support a stay of an unlawful detainer action. In 2 Asuncion, the unlawful detainer defendants directly challenged the manner in which the unlawful 3 detainer plaintiff had obtained titleto the property (i.e., that it had procured the deed of trust by 4 fraud). (Asuncion v. Superior Court, 108 Cal.App.3d at 143 [plaintiffs alleging that the unlawful 5 detainer plaintiff “induces the homeowners to sign legal papers which they do not understand and 6 which obligate the homeowners to repay sums greatly in excess of their present undertakings, charge 7 usurious rates of interest, and, unbeknownst to the homeowners, grant [the unlawful detainer 8 plaintiff] legal title to the property”].) 9 Here, Plaintiff does not allege circumstances similar to those in Asuncion. Rather, Plaintiff 10 contends that the assignment of the deed of trust was not made. (Mot. at p. 3-4.) As shown in 11 Exhibits 1, 2 and 3 to the RJN, there is no break in the chain of title. There are no Asuncion issues 12 present in this action. Plaintiff defaulted on her mortgage, could no longer stay the foreclosure sale 13 with bankruptcy filings or an injunction and a valid foreclosure sale followed. 14 In Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, Seibert, the 15 unlawful detainer defendant, filed a separate action alleging that he became unable to pay his 16 mortgage because of fraud relating to third-party loans. In that case, Seibert was attempting to stay 17 the unlawful detainer action while his allegations of mortgage fraud were litigated, which would 18 have potentially provided him with a defense to the unlawful detainer action. (Id. at 464.) The court 19 denied the stay, holding that the only points at issue in the unlawful detainer action were whether the 20 property had been sold in accordance with Civil Code § 2924 and whether title obtained by the 21 buyer at the trustee’s sale had been perfected. The Court went on to state that the alleged fraud does 22 not have any bearing on the issues to be determined in the unlawful detainer action, and that 23 complex fraud charges are beyond the phase of title which may be litigated in an unlawful detainer 24 proceeding. (Id. at 465.) In addition, the pendency of another action concerning title is immaterial to 25 the resolution of an unlawful detainer proceeding. (Id.) 26 The issues in the instant Civil Action are subtler than those in Old National. The Civil Action 27 does not allege facts to show that the deed of trust was fraudulently procured by Defendants or that 28 title pursuant to the deed of trust was not duly perfected. (See SAC, in general.) 6 MEMORANDUM OF POINTS AND AUTHORITIES 1 A consolidation or stay of the UD Action would be tantamount to an injunction precluding 2 eviction. The Motion does not assert circumstances supporting the issuance of a preliminary 3 injunction. (See, Asuncion v. Superior Court, 108 Cal.App.3d at 146–147.) At best, Plaintiff might 4 seek damages under the allegations of the SAC (although Defendant denies that Plaintiff is entitled 5 to any award). There are no title issues here, and the cases should not be consolidated or stayed. 6 Finally, Plaintiff is unable to maintain an action to quiet title or to otherwise set aside the 7 foreclosure sale. The foreclosure sale was held and is valid. This Motion is a delay tactic and should 8 be denied. 9 V. PLAINTIFF WILL NOT SUCCEED ON MERITS 10 A. PLAINTIFF CANNOT SUPPORT A CAUSE OF ACTION FOR 11 NEGLIGENCE OR FOR FRAUD 12 In order to state a cause of action for negligence, Plaintiff must be more specific as to what 13 constituted the negligence, what was the duty to do what and how was that duty breached. The only 14 allegations are that the Defendants had a duty to exercise reasonable care. (SAC, ¶¶ 1-2.) This is 15 insufficient to state a cause of action for negligence. 16 Plaintiff bases her second cause of action for fraud on the same theory. Fraud is even a 17 higher pleading standard which is missing from the SAC. The elements of fraud are a 18 misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting 19 damage. [Citation.] Fraud causes of action must be pled with specificity in order to give notice to the 20 defendant and to furnish him or her with definite charges. [Citation.] In drafting the complaint, “ ‘(a) 21 [g]eneral pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud 22 must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper 23 manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will 24 not ordinarily be invoked to sustain a pleading defective in any material respect.” [Citations.]’ 25 [Citation.]” (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.) The SAC is 26 woefully deficient in the first two causes of action and the demurrer should be sustained without 27 leave to amend. The amended complaints filed by Plaintiff simply make absolutely no factual 28 7 MEMORANDUM OF POINTS AND AUTHORITIES 1 allegations against Defendant and despite having now filed three operative complaints, this demurrer 2 should be sustained without leave to amend. 3 B. PLAINTIFF DOES NOT STATE FACTS TO SUPPORT ANY WRONGFUL 4 FORECLOSURE BASED CAUSE OF ACTION 5 Plaintiff sets forth various causes of action all based on her theories that the foreclosure sale 6 was illegal. The third, fourth, fifth, and eighth (quiet title) and ninth (slander of title) causes of 7 action all stem from Plaintiff’s theory that defendants were not authorized to substitute a trustee or 8 otherwise act, and the assignment of the loan was improper. None of the theories are supported by 9 law or the actual facts. 10 The elements of a cause of action for wrongful foreclosure are “ ‘(1) the trustee or mortgagee 11 caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale 12 in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or 13 mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the 14 sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from 15 tendering.’ [Citation.]” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 16 408.) 17 The SAC allegations are insufficient to prove any of these elements; plaintiff did not allege 18 that she tendered the amount of her debt or was excused from doing so, or that she has suffered 19 actual harm or prejudice. 20 The SAC alleges no facts to support its allegation that the note was not assigned together 21 with the deeds of trust and there is no requirement to hold the original note and deed of trust in order 22 to foreclose. Under California law, there is no requirement for the production of an original 23 promissory note prior to initiation of a nonjudicial foreclosure. California Civil Code § 2924 24 includes several requirements for non-judicial foreclosure, but “[n]othing in [§ 2924] requires the 25 entity initiating foreclosure to have physical possession of the note. [C]ourts have uniformly found 26 that ‘physical possession of the original promissory note is not a prerequisite to initiating foreclosure 27 proceedings.’ ” (Javaheri v. JPMorgan Chase Bank, 2011 WL 1131518 at *2 (C.D.Cal.2011) 28 8 MEMORANDUM OF POINTS AND AUTHORITIES 1 (quoting Nguyen v. LaSalle Bank Nat'l Ass'n, 2009 WL 3297269 at *3 (C.D.Cal.2009)). Plaintiff’s 2 claims otherwise are invalid. 3 To withstand a demurrer, the complaint must set forth the essential facts to support a claim. 4 (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 5 1076, 1099.) While most claims can be supported by ultimate rather than evidentiary facts, legal 6 conclusions are insufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550–551 & fn. 5.) 7 By the same token, the court “assume[s] the truth of the allegations in the complaint but do[es] not 8 assume the truth of contentions, deductions, or conclusions of law. [Citation.]” (California Logistics, 9 Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The SAC is simply devoid of facts to 10 support the wrongful foreclosure-based causes of action. 11 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS 12 Plaintiff brings an unfair and deceptive practices act (“UCL”) claim under § 17200 as the 13 seventh cause of action on the caption yet the body of the SAC is devoid of any charging allegations. 14 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, 15 deceptive, untrue or misleading advertising...” (Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th 16 Cir. 2013), as amended on denial of reh’g and reh’g en banc (July 8, 2013). “Because Business & 17 Professions Code § 17200 is written in the disjunctive, it establishes three varieties of unfair 18 competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Cel-Tech Commc’ns, 19 Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 180.) 20 With respect to the UCL’s “unlawful” prong, Plaintiff does not viably allege an unlawful 21 business practice, i.e., anything that can be called a business practice and that is forbidden by law. 22 (Ticconi v. Blue Shield of Cal. Life & Health Ins. (2008) 160 Cal. App. 4th 528, 539.) And, absent 23 any predicate violation of statute or common law, there is no basis for invoking the UCL’s 24 “unlawful” prong. (Wasjutin v. Bank of Am., N.A., 732 F. App’x 513, 517 (9th Cir. 2018). 25 To the extent the UCL relies on the wrongful foreclosure theories, the UCL claim is 26 derivative of the wrongful foreclosure and rescission causes of action and stands or falls with the 27 underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134, 1143 28 9 MEMORANDUM OF POINTS AND AUTHORITIES 1 [UCL “ ‘borrows' violations from other laws by making them independently actionable as unfair 2 competitive practices”].) The UCL cause of action fails. 3 Finally, as Plaintiff‘s property was subject to nonjudicial foreclosure because of Plaintiff‘s 4 default on her loan, which occurred before Defendant’s alleged wrongful acts, Plaintiff cannot assert 5 the impending foreclosure of her home (i.e., her alleged economic injury) was caused by 6 Defendant’s wrongful actions. Plaintiff‘s SAC cannot show