2015-00804119 Farivar vs. Stearns Lending, Inc.

Defendant’s Request For Judicial Notice is GRANTED as to Items A-O, inclusive. Judicial notice is limited to the existence of, recording/filing of, and the legal effect of such instruments and/or pleadings, and not the truth of any factual allegations made therein.

Defendants The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA11, Mortgage Pass-Through Certificates, Series 2006-OA11, & Select Portfolio Servicing, Inc.’s Demurrer to The First Cause of Action For Declaratory Relief is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Second Cause of Action For Wrongful Foreclosure is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Third Cause of Action For Cancellation of Instruments is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Fourth Cause of Action For Quiet Title is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Fifth Cause of Action For Unfair Competition and Violation of Bus. & Prof. Code § 17200 is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Sixth Cause of Action For Fraud is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Seventh Cause of Action For Injunctive Relief is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

The Demurrer to The Eighth Cause of Action For Ejectment is SUSTAINED with leave to amend, on the basis that it fails to state facts sufficient to state a cause of action, and to the extent that Plaintiffs allege that a foreclosure sale has occurred, on the basis that the 2ndAC fails to allege unconditional tender of the Loan balance.

Plaintiffs to file and serve an amended complaint within ten days.

Moving party to give notice.