A California demurrer in a mortgage lawsuit

Shortly after filing a mortgage lawsuit in California, the lender will file a demurrer. In Nevada, a demurrer is called a motion to dismiss. California judges are all over the place when it comes to demurrer rulings. Here is an example of a tentative ruling on a demurrer filed by the lender in a securitization lawsuit heard on September 20, 2011 in Orange County Superior Court: The Plaintiffs are the homeonwers and the Defendants are the banks and trustees.

“The Demurrer is sustained with 20 days leave to amend, except as to the 2d and 6th COA’s without leave to amend. Moving Party to give notice.

The Complaint as a whole: Defendants argue the complaint is uncertain because it lumps together all COA’s and Defendants, too, which is improper. (Moore v. Regents of the Univ. of Calif. (1990) 51 Cal.3d 120, n.1, 134, n12.) Defendants also argue the Plaintiff’s do not have standing since they quitclaimed their interest in the home. (Complaint paragraph 3; Code Civ. Proc., Section 367.) Further, Defendants argue Plaintiffs must tender the amounts owed under the loan to assert their claims. (Abdallah v. United Savs. Bank (1996) 43 CAl.App4th 1101, 1109.) Finally, Defendants claim any claims arising from loan origination are time-barred because the loan was originated over five years ago (Complaint paragraph 18; Code Civ. Proc., sections 337(1), 338(d); Bus & Prof. Code, section 17208.)

Causes of Action:

(1) Declaratory Relief
(2) Injunctive Relief
(3) Contractual Breach of GFFD
(4) Rescission
(5) Unfair and Deceptive Business Act Practices (“UDAP”)
(6) Unconscionability- UCC 2-3202
(7) Predatory Lending
(8) Quiet Title
(9) Failure to Comply with State Statutes
(10) Conversion or illegal attempt to Convert
(11) Fradulent Misrepresentation/Promissory Estoppel

to be continued….

Published by Stout Law Firm

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