LUCAS v MERIDIAN FORECLOSURE SERVICE | A Telling Tale of a Doomed Demurrer, Glaski Gets his DUE.
SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER
DATE: 12/09/2013 TIME: 11 :34:00 AM JUDICIAL OFFICER PRESIDING: Thierry Patrick Colaw CLERK: P. Rief REPORTERIERM: None BAI LIFF/COURT ATTENDANT: Edwin Hong DEPT: C25 CASE NO: 30-2013-00651662-CU-OR-CJC CASE INIT.DATE: OS/23/2013 CASE TITLE: Lucas VS. Meridian Foreclosure Service CASE CATEGORY: Civil- Unlimited CASE TYPE: Other Real Property EVENT ID/DOCUMENT 10: 71856341 EVENT TYPE: Under Submission Ruling APPEARANCES DEMURRER BY DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR11 , MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR11 UNDER THE POOLING AND SERVICING AGREEMENT DATED APRIL 1, 2007; ONEWEST BANK, FSB; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. There are no appearances by any party. The court, having taken the above-entitled matter under submission on 12/06/2013 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented , now rules as follows: NOTICE OF RULING EXCERPTS: The Demurrer to the 1st cause of action (Declaratory Relief) as to all Defendants is OVERRULED. Plaintiffs are not merely challenging the foreclosure process under Gomes v. Countrywide Home Loans, Inc. (2011 ) 192 Cal.App.4th 1149 and/or based on issues with the securitization of the loan and violation of the PSA. Rather, Plaintiffs allege that the loan never made it into the trust pursuant to Glaski v. Bank of America, National Association (2013) 218 Cal.App.4th 1079. (See, First Amended Complaint, at 1m 41-47.) Defendants have failed to sufficiently establish that the factual allegation is insufficient as a matter of law. In addition, federal district court cases are not binding on this court. The parties should move forward with discovery to determine whether the loan was transferred to a securitized trust, when it was transferred, and which state's trust laws apply. [...] The Demurrer to the 5th cause of action (Violation of Bus, & prof. Code § 17200) as against OneWest and MERS is OVERRULED, First, Plaintiffs have alleged sufficient facts showing that they have suffered an injury in fact, and therefore have standing to sue. In addition, Plaintiffs have alleged an "unlawful" business act with sufficient particularity (i.e., the facts alleged in support of the declaratory relief and violation of Civil Code § 2924.12 causes of action are all incorporated into this cause of action). [...] It is questionable whether tender is required in this case. First, this is a pre-foreclosure sale case. Second, the cases cited to by Defendants are factually distinguishable in that they are not pre non-judicial foreclosure sale cases. Third, Plaintiffs are challenging the validity of Defendants' authority to foreclose under Glaski. The Court of Appeal in Glaski stated: "Tender is not required where the foreclosure sale is void, rather than voidable, such as when a plaintiff proves that the entity lacked the authority to foreclose on the property." (Glaski v. Bank of America, National Association (2013) 218 Cal.App.4th 1079, 1100; see also, Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 and Arnolds Management Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 579.) Thus, Plaintiffs are alleging that the foreclosure sale in this case is void as a matter of law pursuant to Glaski, and that tender is therefore not required. [...]