2016-00829816
McClaire vs. Wells Fargo Bank, N.A.

Demurrer by First American Title

Defendant’s Request For Judicial Notice is granted as to Items 1-9, inclusive. Such notice is limited to the existence of, recording of, and legal effect of such recorded instruments, and not as to the truth of any disputed factual matters therein.

Defendant First American Title Insurance Company?s Demurrer to the First Cause of Action in Plaintiff?s Complaint For Violation of Civ. Code ? 2923.6 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Borrower?s loan modifications were consistent with the lender?s contractual or other authority, that the Borrower has submitted a complete loan modification application, on the basis that the claim appears barred by Civ. Code ?? 47(c) & 2924(b) & (d), and on the basis that the Plaintiff has failed to name an indispensable party, US Bank.

The Demurrer to the Second Cause of Action for Wrongful Foreclosure is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property, on the basis that the foreclosure sale has been rescinded,? on the basis that the claim appears barred by Civ. Code ?? 47(c) & 2924(b) & (d), and on the basis that the Plaintiff has failed to name an indispensable party, US Bank.

The Demurrer to the Third Cause of Action for Violation of Civ. Code ? 2924.17 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the foreclosing party is one described in Civ. Code ? 2924.18,? and that the? notice of default, notice of sale, assignment, or substitution of trustee is not accurate, complete, and supported by competent evidence, on the basis that the claim appears barred by Civ. Code ?? 47(c) & 2924(b) & (d), and on the basis that the Plaintiff has failed to name an indispensable party, US Bank.

The court declines to rule on Defendant?s demurrer to the Fourth Cause of Action, as the Cause of Action is not alleged against the demurring Defendant.

The Demurrer to the Fifth Cause of Action for Violation of Bus. & Prof. Code 17200 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Plaintiff?s injury in fact was caused by the acts or omissions of Defendant, as opposed to admitted default in repayment of the Loan, on the basis that the claim appears barred by Civ. Code ?? 47(c) & 2924(b) & (d), and on the basis that the Plaintiff has failed to name an indispensable party, US Bank.

The Demurrer to the Sixth Cause of Action for Cancellation of Instrument? is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the instrument is valid on its face, that? the instrument is void or voidable, that the instrument was in existence or under Defendant?s possession and control when the action was filed, on the basis that the claim appears barred by Civ. Code ?? 47(c) & 2924(b) & (d), on the basis that the Plaintiff has failed to name an indispensable party, and on the basis that Plaintiff has failed to allege tender of the Loan balance due.

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

Moving party to give notice.

Demurrer by Wells Fargo Bank

Defendant’s Request For Judicial Notice is granted as to Items A-L, inclusive. Such notice is limited to the existence of, recording/filing of, and legal effect of such recorded/filed instruments, and not as to the truth of any disputed factual matter set forth therein.

The request is denied as to Item M. Notice is being sought of the Monitor?s conclusion that Defendant was in compliance with the National Mortgage Settlement, which is not appropriate for judicial notice in connection with a demurrer.

Defendant Wells Fargo Bank, NA?s Demurrer to the First Cause of Action in Plaintiff?s Complaint For Violation of Civ. Code ? 2923.6 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Borrower?s loan modifications were consistent with the lender?s contractual or other authority, and that the Borrower has submitted a complete loan modification application.

The Demurrer to the Second Cause of Action for Wrongful Foreclosure is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property, and on the basis that the foreclosure sale has been rescinded.

The Demurrer to the Third Cause of Action for Violation of Civ. Code ? 2924.17 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the foreclosing party is one described in Civ. Code ? 2924.18, and that the notice of default, notice of sale, assignment, or substitution of trustee is not accurate, complete, and supported by competent evidence.

The Demurrer to the Fourth Cause of Action for Negligence is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing the existence of a relationship between Plaintiff and Defendant giving rise to a duty of due care.

The Demurrer to the Fifth Cause of Action for Violation of Bus. & Prof. Code ? 17200 is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the Plaintiff?s injury in fact was caused by the acts or omissions of Defendants, as opposed to admitted default in repayment of the Loan.

The Demurrer to the Sixth Cause of Action for Cancellation of Instrument is sustained with leave to amend, on the basis that the Complaint fails to allege facts showing that the instrument is valid on its face, that the instrument is void or voidable, that the instrument was in existence or under Defendant?s possession and control when the action was filed, and on the basis that Complaint fails to allege tender of the entire balance due on the Loan.

Motion to Strike by Wells Fargo Bank

The court?s ruling on Defendant?s Demurrer renders this motion moot.

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

Moving party to give notice.