30-2015-00782368
Truong vs Bank of America NA, as Successor by Merger to Countrywide Bank, FSB
1) Defendant Ocwen?s motion for judgment on the pleadings as to plaintiff Truong?s second amended complaint is GRANTED without leave to amend. See, C.C.P. ? 438. As to plaintiff?s first cause of action for negligence based on negligent handling of loan modification, even assuming a duty can potentially be stated, plaintiff Truong has again not alleged sufficient facts as to any failure to process her applications in a timely manner, any improper dual tracking, lost documents, misdirected documents, or inaccurate or untimely communication about a foreclosure sale or status of a foreclosure application that are causally related to some specific damages similar to those discussed in Alvarezand ?Garcia. The Lueras court explained that there is no duty to modify a loan, particularly when the lender had no role in any default. In this case, plaintiff Truong alleged that she ran into financial difficulties that led her to be unable to pay her mortgage. (See, SAC, ? 10.) This is not the fault of the lender or servicer. The court also notes that it ignores conclusions of fact and law when ruling on a demurrer, or a motion for judgment on the pleadings that is essentially a general demurrer just after a party has answered. See, Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. As to plaintiff?s second cause of action for unfair business practices in violation of Bus. & Prof. Code ? 17200, plaintiff Truong has again not alleged sufficient facts for purposes of standing as to the second element of causation for purposes of UCL standing. See, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 522 to 523. In addition, plaintiff?s UCL action is grounded in plaintiff Truong?s negligence claim, and since plaintiff has not stated a cause of action for negligence the UCL action on such grounds is not stated either. See, Pantoja v. Countrywide Home Loans, Inc.(2009) 640 F.Supp.2d. 1177, 1190 to 1191. Further, plaintiff has not alleged sufficient facts as to any unfair or fraudulent conduct on the part of defendant Ocwen Loan at this time. Finally, plaintiff Truong was already granted leave to file her second amended complaint to address these defects and plaintiff Truong has not set forth what additional facts she can plead to state a proper cause of action for negligence based on negligent handling of loan modification and/or standing to state a cause of action for violation of Bus. & Prof. Code ? 17200. See, Hendy v. Losse(1991) 54 Cal.3d 723, 742. Moving party to give notice and submit a proposed judgment within 14 days.
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Defendant Ocwen?s Request for Judicial Notice:Defendant Ocwen requested that the court take judicial notice of the following documents in support of defendant Ocwen?s motion for judgment on the pleadings as to plaintiff Truong?s second amended complaint: Exhibit A, Deed of Trust recorded
8-23-07, Exhibit B, Assignment of Deed of Trust recorded
4-21-11, Exhibit C, Assignment of Deed of Trust recorded
2-28-14, Exhibit D, Substitution of Trustee recorded 3-19-14, Exhibit E, Notice of Default and Election to Sell Under Deed of Trust recorded 3-27-14, and Exhibit F, Notice of Trustee?s Sale recorded 7-30-14. GRANTED as to Exhibits A, B, C, D, E and F, but such notice is limited to the filing of these documents with the county recorder?s office and legal effect but not as to the truth of the matters set forth therein. See, Evidence Code ? 452(h) and Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.
2) Defendant Bank of America?s demurrer to plaintiff Truong?s second amended complaint is SUSTAINED without leave to amend. Plaintiff Truong?s claim against defendant Bank of America is to now allege that co-defendant Ocwen was its agent. Even assuming agency exists, the same analysis on Motion No. 1 of 2 is thereby applicable to defendant Bank of America with co-defendant Ocwen as its alleged agent.?Finally, plaintiff Truong was already granted leave to file her second amended complaint to address these defects and plaintiff Truong has not set forth what additional facts she can plead to state a proper cause of action for negligence based on negligent handling of loan modification and/or standing to state a cause of action for violation of Bus. & Prof. Code ? 17200. See, Hendy v. Losse (1991) 54 Cal.3d 723, 742. Moving party to give notice and submit a proposed judgment of dismissal within 14 days.
Defendant Bank of America?s Request for Judicial Notice: Defendant Bank of America requested that the court take judicial notice of the following documents in support of defendant Bank of America?s demurrer to plaintiff Truong?s second amended complaint: Exhibit Deed of Trust recorded
8-23-07, Exhibit B, Assignment of Deed of Trust recorded
4-21-11, Exhibit C, Assignment of Deed of Trust recorded
2-28-14, Exhibit D, Assignment of Deed of Trust recorded
3-13-14, Exhibit E, Notice of Default and Election to Sell Under Deed of Trust filed 3-27-14, Exhibit F, Notice of Trustee?s Sale recorded 7-30-14, and Exhibit G, Court Minute Order of 12-18-15. GRANTED as to Exhibits A, B, C, D, E and F, but such notice is limited to the filing of these documents with the county recorder?s office and legal effect but not as to the truth of the matters set forth therein.See, Evidence Code ? 452(h) and Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265. GRANTED as to Exhibit G. See, Evidence Code ? 452(d).