Arriola vs. U.S. Bank National Association as Trustee for Holders of Bear Stearns Arm Trust, Mortgage Pass-Through Certificates, Series 2004-3, Specialized Loan Servicing LLC and JP Morgan Chase Bank N.A., and Countrywide Home Loans Inc.

The Demurrer by Defendant U.S. Bank National is sustained without leave to amend.    The Request for Judicial Notice is granted.  The Joinder is granted.    The Action is dismissed as to these Demurring and Joining Defendants.

Plaintiff has had ample opportunity, in the past, to assert any claims he may have against Defendants here.   He filed several Petitions in Bankruptcy and adjudicated the claims of the Defendants in those proceedings.  That adjudication led to the claim of Defendants being allowed and a finding that Plaintiff had no defenses to the claim.    Plaintiff’s claims are therefore barred by the doctrine of res judicata/issue preclusion. In addition, for all the other reasons set forth in the Points and Authorities, the Demurrer is properly sustained, and sustained without leave.  In the end, as the Bankruptcy documents show, Plaintiff does not have the means to maintain this Loan, even if the sale of the property was set aside.  And, he certainly does not have the means to tender the balance due, as is required.  It is time proceedings on Plaintiff’s claims come to an end, as there is no basis for them.

The entire Action is barred by the principals of res judicata and issue preclusion. In Plaintiff’s Bankruptcy, Plaintiff objected to the claim which is the subject of this Action.   The Court overruled the objection.  Plaintiff appealed from that ruling, and the appeal was dismissed. On May 24, 2016, in that same Bankruptcy, the Court granted Defendants’ Motion for Relief from stay, leading to the Trustee’s sale of the Property. No appeal was taken of that Order. Plaintiff then filed an adversary proceeding based on the claims asserted here, and that proceeding was dismissed.

Res judicata or claim preclusion precludes the re-litigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them (Federation v. City of Los Angeles (2004) 126 Cal. App. 4th 1180). Here the Bankruptcy Court heard both Plaintiff’s objection to Defendants’ claim, and an adversary proceeding brought on the same claims asserted here.   Plaintiff was unsuccessful in either proceeding, and a final judgment was entered against him.  Plaintiff has not shown otherwise.

As the Bankruptcy Court properly found,  a borrower lacks standing to enforce securitization agreements, including investment pool agreements and serving agreements (Jenkins v. JP Morgan (2013) 216 Cal. App. 4th 497).   Here, Plaintiff lacks such standing.  Further, the assignment of the Deed of Trust was valid,  for all the reasons set forth in Defendants’ Points and Authorities, and there is no requirement that a party initiating foreclosure proceedings be in possession of the relevant note (Civil Code Section 2924;  In re Dedano 470 BR 522).

Plaintiff cannot satisfy the tender rule and he must. Here, the Property was sold at a trustee sale, after relief was granted, over the objection of the Plaintiff, in the Bankruptcy Court. In such a situation the tender rule strictly applies, as the Plaintiff had every opportunity to redeem the Property, but did not (Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428).  Here, there is nothing unfair about this, as Plaintiff has had every opportunity to litigate the claims asserted here,  and every opportunity to redeem the Property.  His Bankruptcy filings show he has no means to do so.

The individual Causes of Action fail for further reasons. As to the First Cause of Action for Wrongful Foreclosure, Plaintiff has failed to allege any facts which show any of the elements necessary for such a claim, as articulated in Lona v. Citibank (2011) 202 Cal. App. 4th 89, and particularly has not alleged facts showing any prejudice to him, since he is unable to redeem the property or tender.   The sale is presumed valid, and Plaintiff has not overcome that presumption.

As to the Second Cause of Action for Fraudulent Concealment, the claim is time barred.  There is no specificity as to the asserted claim, as required, and Plaintiff has failed to show any damage. As to the claim under the UCL, Plaintiff has failed to allege facts which bring him within any prong of the Statute, and has not shown any injury in fact, as any loss he has incurred was inflicted by his actions and particularly non- payment of the loan..  The claim under TILA fails as it is untimely.   Any claim under HBOR fails, as a matter of law,   as no facts are alleged to bring Plaintiff within the Statute, a proper Declaration was filed with the Notice of Default, and none of these grounds were raised in the prior proceedings.   They would not lead to any relief, in any event, as the Property has been sold, and Plaintiff has not and cannot redeem or tender.


Moving party to give notice.