Defendants? (Nationstar Mortgage LLC and HSBC Bank USA, National Association) Motion for Judgment on the Pleadings is GRANTED.
The court takes judicial notice of the documents recorded with the Orange County Recorder?s Office, attached to Defendant?s request as Exhibits 1-13.? (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 ? ?[A] court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.?)
This action is brought by Plaintiffs Sameer K. Moosani, Salman K. Moosani in their individual capacity, as well as Sameer K. Moosani and Salman K. Moosani, executors of the Estate of Kader I. Moosani.?? Plaintiffs allege various violations of the HBOR, as well as claims for negligence, breach of Business and Professions Code section 17200, and a demand for accounting.
The Complaint and the judicially noticed documents, however, demonstrate that Plaintiffs do not have standing to assert this action.? That is, the Complaint does not assert that any Plaintiff was the borrower on the subject loan.? Civil Code section 2920.5, subdivision (c)(1), states, ?Unless otherwise provided and for purposes of Sections . . . 2923.5, 2923.55, 2923.6 . . . ?borrower? means any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state, or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer.?? Civil Code section 2924.17 explains the requirements for ?[a] declaration recorded pursuant to Section 2923.5 or . . . pursuant to Section 2923.55 . . . .?? Since Civil Code section 2924.17?s refers to Civil Code sections 2923.5 and 2923.55, Civil Code section 2920.5 subdivision (c)(1)?s definition? of ?borrower? applies to Civil Code section 2924.17. None of the Plaintiffs meet this definition of borrower based on the allegations in the Complaint.
Thus, it appears that: (1) Plaintiffs do not have standing to assert claims for violations of Civil Code sections 2923.55, 2923.6, or 2924.17; (2) no duty of care is owed to non-borrowers, negating their negligence claims; (3) Plaintiffs cannot show they suffered any injury ?as a result of? or ?caused by? the alleged unfair competition; and (4) Plaintiffs cannot plead facts establishing the existence of relationship that requires an accounting.? Accordingly, the motion for judgment on the pleading is granted.
The Court will hear from Plaintiffs whether leave should be allowed.
Defendants are to give notice.