Case Number: KC068164??? Hearing Date: June 13, 2016??? Dept: O
Crawford v. MTC Financial Inc., et al. (KC068164)
Defendants Deutsche Bank National and Mortgage Electronic Registration Systems, Inc.?s MOTION FOR JUDGMENT ON THE PLEADINGS
Respondent: NO OPPOSITION
TENTATIVE RULING
Defendants Deutsche Bank National and Mortgage Electronic Registration Systems, Inc.?s motion for judgment on the pleadings is GRANTED. The court will hear from Plaintiff regarding any grounds warranting further leave to amend.
1st and 3rd CAUSES OF ACTION:
HOMEOWNERS BILL OF RIGHTS and CC 2923.5: (a) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to Section 2924 until all of the following: (1) The mortgage servicer has satisfied the requirements of paragraph (1) of subdivision (b). (2) Either 30 days after initial contact is made as required by paragraph (2) of subdivision (b) or 30 days after satisfying the due diligence requirements as described in subdivision (f). (CC 2923.55.)
Par. 38 alleges that ?during the 30 day period prior to? filing a Notice of Default, Plaintiff was never contacted.? However, CC 2923.55 and 2923.5 require communication at some time more than 30 days before filing a Notice of Default, not ?during the 30 day period.?
2nd CAUSE OF ACTION:
NEGLIGENCE: The relationship between a lending institution and its borrower-client is not fiduciary in nature. A commercial lender is entitled to pursue its own economic interests in a loan transaction. This right is inconsistent with the obligations of a fiduciary which require that the fiduciary knowingly agree to subordinate its interests to act on behalf of and for the benefit of another?. As a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. Thus, for example, a lender has no duty to disclose its knowledge that the borrower’s intended use of the loan proceeds represents an unsafe investment. The success of the borrower’s investment is not a benefit of the loan agreement which the lender is under a duty to protect. Liability to a borrower for negligence arises only when the lender actively participates in the financed enterprise beyond the domain of the usual money lender. (Nymark v. Heart Fed. Sav. & Loan Ass?n (1991) 231 Cal.App.3d 1089, 1093-1096.)
The Complaint does not allege a relationship beyond a mere lender of money. Therefore, Plaintiff has not stated sufficient facts to support imposition of a duty.
4th CAUSE OF ACTION:
DECLARATORY RELIEF:
Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought. (CCP 1060.)
Par. 55 merely alleges that ?Defendants do not have authority to foreclose,? without setting forth any facts supporting this claim.
5th CAUSE OF ACTION:
FRAUD: The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)
Fraud fails for lack of specificity. Further, Plaintiff?s own contract allows securitization. (Complaint, Ex. A, Deed of Trust, Par. 20.) Finally, the loan origination claims are time-barred.
6th CAUSE OF ACTION:
IIED: The elements are: 1) outrageous conduct by defendant; 2) intentional or reckless causing emotional distress; 3) severe emotional distress; and 4) causation. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)
Insofar as the IIED claim relates to the other defective claims, IIED is also defective. If Plaintiff bases her claim on outrageous conduct, she has not so stated. Further, Plaintiff has not stated any severe emotional distress.
7th CAUSE OF ACTION:
SLANDER OF TITLE fails because foreclosure notices are privileged. (CC 2924(d)(1) and (d)(2); CC 47.)
8th CAUSE OF ACTION:
QUIET TITLE: Tender applies to any cause of action that is based on allegations of wrongful foreclosure or that seeks redress from foreclosure. (Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1109; Arnolds Mgmt. Corp., 158 Cal.App.3d 579; Karlsen v. Gibralter Sav. & Loan Assn. (1974) 15 Cal.App.3d 112, 117.)
Plaintiff has not alleged that she has made any tender.
Accordingly, motion is GRANTED. The court will hear from Plaintiff regarding any grounds warranting further leave to amend.