current rulings on wrongful foreclosure

 CASE NAME: CHRISTINA PENNES  vs.  PNC MORTGAGE

 HEARING ON DEMURRER TO COMPLAINT of PENNES

 FILED BY PNC BANK, NATIONAL ASSOCIATION

* TENTATIVE RULING: *

Defendant PNC Bank, N.A.’s Demurrer to each cause of action within the Complaint is sustained with leave to amend in part and without leave to amend in part. (Cal. Code Civ. Proc., section 430.10, subd. (e).)

1^st cause of action for Cancellation of Instruments (Assignment of Deed of Trust), 2^nd cause of action for Cancellation of Instruments (Notice of Default), and  3^rd cause of action for Cancellation of Instruments (Notice of Default), sustained with leave to amend. Actions to remove a cloud on title, under Civil Code section 3412, are equitable in nature, and differ from actions to quiet title in that they are aimed at a particular instrument or piece of evidence. Reiner v. Danial (1989) 211 Cal. App. 3d 682, 689.  To state a cause of action to remove a cloud, instead of pleading in general terms that the defendant claims an adverse interest, the plaintiff must allege, inter alia, facts showing actual invalidity of the apparently valid instrument or piece of evidence. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 671-674, pp. 97-99.) Plaintiffs have not met this burden. See Complaint par 20, Ex D. See also, Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149 1154-55 [under Civ C  section 2924(a)(1), a trustee, mortgagee, or beneficiary, or any of their authorized agents, may initiate the foreclosure process. Nowhere, however, does the statute provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized, and the court saw no ground for implying such an action, which would have been inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy.]

4^th cause of action for wrongful foreclosure, sustained with leave to amend. The elements of a common-law cause of action for damages for wrongful foreclosure are:  (1) Trustee or mortgagee caused an illegal, fraudulent or willfully oppressive sale of real property; (2) pursuant to a power of sale contained in a mortgage or deed of trust; and (3) the Trustor or mortgagor sustained damages. (Munger v. Moore (1970) 11 Cal. App. 3d 1, 7; see 4 Witkin, Sum. Of Cal. Law (10^th ed. 2005) Secured Transactions in Real Property, §168.)

The Plaintiffs  do not allege that the foreclosure sale has taken place. Thus, Plaintiffs fail to plead a necessary element of this cause of action.

5^th cause of action for violation of UCL,  and 8^th caused of action for violation of Rosenthal Debt Collection Practices Act [Civ C section 1788], sustained without leave to amend. California’s Unfair Competition Law (UCL) prohibits any unlawful, unfair or fraudulent business practice. (B&P Code section 17200.)  The broad scope of the statute encompasses both anti-competitive business practices and practices injurious to consumers. (Cel‑Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)

This cause of action is based in part upon the 8^th cause of action for violation of the Rosenthal Debt Collection Practices Act [Civ C § 1788.]

The Rosenthal Debt Collection Practices Act [RDCPA] prohibits debt collectors from engaging in abusive, deceptive and unfair practices in the collection of consumer debts.  (Civ. Code  section 1788, et. Seq.)  Consumer debt is statutorily defined as money, property or the equivalent owed by reason of a consumer credit transaction, which in turn is defined as a transaction in which property, etc. is acquired on credit for personal, family or household purposes. Cal. Civ. Code  section 1788.2(b), (e)-(f), (h).  There are no California State Court opinions to date applying this statute to the enforcement of deeds of trust or to foreclosure proceedings.

6^th cause of action for quiet title, sustained with leave to amend:

To state a claim for quiet title,  the complaint shall be verified. CCP section 761.020.  The Complaint is not verified.  Additionally, in order to quiet title, plaintiff  must tender the entire outstanding principal.  See, e.g., Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477 [Plaintiff cannot quiet title without discharging his debt; the cloud upon his title persists until the debt is paid.]

7^th cause of action for rescission, sustained without leave to amend. To state a claim for contract rescission, plaintiff must allege some grounds for rescission-fraud, mistake, coercion, etc. (Civ. Code, § 1689, subd. (b).) plaintiffs do not meet hits pleading burden.

Plaintiffs Opposition does not address this cause of action, therefore, they concede that it has no merit.

9^th cause of action for  violation of Civ C § 2923.5, sustained with leave to amend:

Actual contact is not required. See, Civil Code section 2923.59(g). Additionally, the only remedy for a Section 2923.5 violation is a postponement of the foreclosure sale to enable the defendants to comply with the requirements of the statute — not a claim for damages. (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 235.)

The Plaintiffs do not allege that a foreclosure sale date has been noticed.

Defendant’s Request for Judicial Notice is granted. (Evid. Code, section 452(c)[public records].

In light of the ruling on the general demurrer, the special demurrer is moot. (Cal. Code Civ. Proc., section 430.10, subd. (f).)

 CASE NAME: CHRISTINA PENNES  vs.  PNC MORTGAGE

 HEARING ON MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT

 FILED BY PNC BANK, NATIONAL ASSOCIATION

* TENTATIVE RULING: *

In llight of the ruling on the general demurrer, the Motion to Strike is moot.