This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:33:27 (UTC).

ANI MARKARIAN VS. THE BANK OF NEW YORK MELLON, ET AL.

Case Summary

On 04/10/2018 ANI MARKARIAN filed a Property - Other Real Property lawsuit against THE BANK OF NEW YORK MELLON. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8129

  • Filing Date:

    04/10/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

BENNY C. OSORIO

 

Party Details

Plaintiff

MARKARIAN ANI

Defendants

QUALITY LOAN SERVICE CORPORATION

THE BANK OF NEW YORK MELLON

BANK OF AMERICA N.A.

Attorney/Law Firm Details

Plaintiff Attorneys

RODRIGUEZ PATRICIA LAW OFFICES OF

KAKOIAN HAKOB JACK

Defendant Attorneys

SEVERSON & WERSON

GOULDING DANIEL JOSEPH

GANDY ROBERT JAMES

 

Court Documents

Civil Case Cover Sheet

4/10/2018: Civil Case Cover Sheet

Legacy Document

4/18/2018: Legacy Document

Legacy Document

5/11/2018: Legacy Document

Proof of Service (not Summons and Complaint)

5/22/2018: Proof of Service (not Summons and Complaint)

Request for Judicial Notice

6/5/2018: Request for Judicial Notice

Legacy Document

6/11/2018: Legacy Document

Legacy Document

6/13/2018: Legacy Document

Legacy Document

7/10/2018: Legacy Document

Request for Judicial Notice

7/30/2018: Request for Judicial Notice

Minute Order

8/10/2018: Minute Order

Minute Order

10/5/2018: Minute Order

Other -

10/25/2018: Other -

Minute Order

12/10/2018: Minute Order

Stipulation - No Order

1/10/2019: Stipulation - No Order

Minute Order

1/18/2019: Minute Order

Amended Complaint

1/22/2019: Amended Complaint

Notice of Change of Address or Other Contact Information

2/26/2019: Notice of Change of Address or Other Contact Information

Demurrer - without Motion to Strike

3/8/2019: Demurrer - without Motion to Strike

65 More Documents Available

 

Docket Entries

  • 11/06/2019
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Case Management Conference

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  • 09/13/2019
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Demurrer - without Motion to Strike

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  • 06/27/2019
  • DocketNotice of Related Case

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  • 03/27/2019
  • Docketat 08:30 AM in Department B; Case Management Conference - Held - Continued

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  • 03/27/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 03/18/2019
  • DocketCase Management Statement; Filed by Ani Markarian (Plaintiff)

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  • 03/13/2019
  • DocketCase Management Statement; Filed by Bank of America, N.A. (Defendant); The Bank of New York Mellon (Defendant)

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  • 03/08/2019
  • DocketRequest for Judicial Notice; Filed by Bank of America, N.A. (Defendant); The Bank of New York Mellon (Defendant)

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  • 03/08/2019
  • DocketDemurrer - without Motion to Strike; Filed by Bank of America, N.A. (Defendant); The Bank of New York Mellon (Defendant)

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  • 02/26/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Ani Markarian (Plaintiff)

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83 More Docket Entries
  • 05/07/2018
  • DocketDeclaration; Filed by Ani Markarian (Plaintiff)

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  • 05/07/2018
  • DocketDeclaration; Filed by Ani Markarian (Plaintiff)

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  • 05/07/2018
  • DocketOrder; Filed by Ani Markarian (Plaintiff)

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  • 05/07/2018
  • DocketMinute order entered: 2018-05-07 00:00:00; Filed by Clerk

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  • 04/18/2018
  • DocketNotice; Filed by Ani Markarian (Plaintiff)

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  • 04/13/2018
  • DocketSummons; Filed by Ani Markarian (Plaintiff)

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  • 04/10/2018
  • DocketNotice of Case Management Conference; Filed by Court

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  • 04/10/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 04/10/2018
  • DocketComplaint; Filed by Ani Markarian (Plaintiff)

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  • 04/10/2018
  • DocketCivil Case Cover Sheet; Filed by Ani Markarian (Plaintiff)

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Tentative Rulings

Case Number: EC068129    Hearing Date: December 13, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

ANI MARKARIAN,

Plaintiff,

v.

THE BANK OF NEW YORK MELLON, et al.,

Defendants.

Case No.: EC068129

Hearing Date: December 13, 2019

[TENTATIVE] order RE:

demurrer TO Fourth AMENDED COMPLAINT

BACKGROUND

  1. Allegations of the Operative Complaint

Plaintiff Ani Markarian (“Plaintiff”) alleges she is the owner of real property at 1098 N. Hill Ave., Pasadena, CA 91104. On December 8, 2005, Marine Markarian executed a promissory note and a deed of trust for $229,000.00 for a home equity line of credit (HELOC Loan, second loan), which was recorded that day. The named trustee was “RECONSTRUCT COMPANY N.A.”; the lender was MERS as nominee for Countrywide Home Loans Inc.; and the original borrowers were Ashout Markarian and Ani Markarian as husband and wife, and Marine Margarian, all as joint tenants.

On December 26, 2012 and June 14, 2018, Plaintiff alleges that Assignments of Deed of Trust were recorded, naming “BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS SUCCESSOR TRUSTEE TO JP MORGAN CHASE BANK, N.A., AS TRUSTEE ON BEHALF THE CERTIFICATE HOLDERS OF THE CWHEQ INC., CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-K” as assignee under the deed of trust. On July 14, 2017, a Substitution of Trustee was recorded naming Defendant Quality Loan Service Corp. (“QLS”) as the trustee under the deed of trust. Thereafter, on August 14, 2017, QLS caused to be recorded a Notice of Default and Election to Sell Under Deed of Trust. Plaintiff alleges she did not receive any notice of the aforementioned assignments or substitution because any mail sent was under Marine Margarian’s name and Plaintiff automatically discarded them since she and Marine Margarian had lost contact.

On October 3, 2019, Plaintiff filed the Fourth Amended Complaint (“4AC”) [1], alleging causes of action for: (1) violation of 15 U.S.C. §1641; (2) violation of Civil Code §2924(a)(6), (3) wrongful foreclosure, (4) breach of implied covenant of good faith and fair dealing; and (5) violation of Bus. & Prof. Code sections 17200, et seq. and 17500, et seq.

  1. Demurrer

Defendants BANK OF AMERICA, N.A. (“BOFA”) and THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS OF THE CWHEQ INC., CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-K (erroneously sued as THE BANK OF NEW YORK MELLON) (“BONY”) demur to the entire third amended complaint based on failure to state sufficient facts.

Plaintiff opposes.

REQUEST FOR JUDICIAL NOTICE

Defendants’ request to take judicial notice of recorded documents is granted.

Plaintiff’s request to take judicial notice of recorded documents is granted.

DISCUSSION

  1. Violation of 15 U.S.C. §1641 (1st cause of action)

    A cause of action under 15 U.S.C. §1641 requires notice to the debtor when there is an assignment of the debt. A notice of assignment of a deed of trust is not equivalent to an assignment of the debt. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271 [“Plaintiff's cause of action ultimately seeks to demonstrate that the nonjudicial foreclosure sale was invalid because HSBC lacked authority to foreclose, never having received a proper assignment of the debt. In order to allege such a claim, it was not enough for plaintiff to allege that MERS’s purported assignment of the note in the assignment of deed of trust was ineffective.”], disapproved on different grounds.)

    Further, any notice of the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of the transfer. (15 U.S.C. §1641(g)(1).)

    Plaintiff alleges Defendants failed to give proper notice of assignments of the subject deed of trust. (4AC, ¶¶48-50.)

    In the Court’s prior ruling on the demurrer to the TAC, the Court found that the 1st cause of action failed to allege sufficient facts because it did not allege that Defendants failed to give proper notice of the assignment of the debt. The 4AC still fails to allege such facts and only alleges facts that Defendants failed to give proper notice of the assignments of the subject deed of trust.

    Next, 15 U.S.C. §1641(g)(1) requires that notice of the transfer/assignment of the debt be provided to the “borrower.” According to the allegations of the 4AC, only Marine Markarian executed the promissory note for the HELOC Loan. (4AC, ¶11.) Thus, Plaintiff does not deny that she is not the borrower on the loan and thus Defendants were not required to provide her with notice pursuant to subsection (g)(1).

    In opposition, Plaintiff argues that she did not receive proper notice of any assignment of the deed of trust because Defendants’ correspondence was addressed to Marine Margarian, Plaintiff had no right to open Marine Margarian’s mail, Marine Margarian ceased all communications with Plaintiff, and Plaintiff discarded any mail addressed to Marine Margarian into a separate pile. (4AC, ¶¶17-19; Opp. at p.6.) These facts and arguments do not cure the defect in the 1st cause of action nor has Plaintiff shown that this cause of action can be cured upon any further amendments.

    Accordingly, the demurrer for failure to allege sufficient facts is sustained. As Plaintiff had the opportunity to amend the pleading based on the ruling of the prior demurrer to the TAC, the Court sustains the demurrer to the 1st cause of action without leave to amend.

  2. Violation of Civil Code §2924(a)(6) (2nd cause of action)

    “No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. No agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest.” (Civ. Code, §2924(a)(6).)

    Defendants argue that a private right of action under section 2924 does not exist, relying on Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 159. However, in Lucioni, section 2924 was only discussed under the context of seeking injunctive relief under sections 2924.12 and 2924.19. The 2nd cause of action does not seek injunctive relief but rather statutory, general, and special damages. (4AC, ¶56.) Thus, this will not be a ground upon which the demurrer is sustained.

    Next, Defendants argue that the recorded documents show the proper chain of title. Plaintiff alleges that QLS recorded a Notice of Default on behalf of BONY on August 24, 2017 and a Notice of Trustee Sale on November 17, 2017. (4AC, ¶54.) Plaintiff alleges that Defendants BOFA, BONY, and QLS lacked authority and standing to record a Notice of Default and Notice of Trustee Sale because they were not the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. (4AC, ¶¶54-55.) The Court takes judicial notice of the recorded documents showing MERS assigned the deed of trust to BONY (Def.’s RJN, Exs. 2-3), QLS was substituted in as trustee (Ex. 4), and QLS recorded the notice of default (Ex. 5). Thus, Defendants recorded the notice of default as the substituted trustee under the deed of trust. Therefore, it does not appear that Plaintiff states a violation of section 2924(a)(6).

    The same prior defects were discussed by the Court in its ruling on the prior demurrer on the TAC. However, the Court does not find that Plaintiff has alleged any additional or new facts such that the issues with this cause of action have been cured. Thus, the demurrer to the 2nd cause of action is sustained without leave to amend.

  3. Wrongful Foreclosure (3rd cause of action)

The element of a wrongful foreclosure cause of action are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.)

Here, Plaintiff does not allege that the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust. In fact, the allegations of the 4AC show that no sale of the property has occurred. At most, Plaintiff argues that Defendants have attempted to sell the property. (Opp. at p.7.)

Plaintiff only alleges that wrongful assignments and substitutions have occurred and that the assignment of beneficial interest to BONY is void. (See 4AC, ¶¶59-60.) Plaintiff alleges that she has been prejudiced by the fact that the entities are attempting to foreclose on her home with no lawful right or interest to do so. (Id., ¶65.) However, Plaintiff has not shown that such wrongful acts amount to stating a cause of action for wrongful foreclosure.

The Court previously discussed the defects in this cause of action in its ruling on the demurrer to the TAC, but Plaintiff has failed to cure the defects in the pleading and it does not appear there are any additional facts that can cure this cause of action.

Accordingly, the demurrer to the 3rd cause of action for failure to allege sufficient facts is sustained without leave to amend.

  1. Breach of Implied Covenant of Good Faith and Fair Dealing (4th cause of action)

The implied covenant thus rests upon the existence of a specific contractual obligation. (Racine & Laramie, Ltd. v. California Dept. of Parks & Rec. (1992) 11 Cal.App.4th 1026, 1031-32.) The implied covenant “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Agosta v. Astor (2004) 120 Cal.App.4th 596, 607.)

The 4AC alleges that the agreement at issue was the original Deed of Trust dated December 8, 2015, which was between MERS (lender) and Ashout Markarian, Ani Markarian, and Marine Margarian (borrowers). (4AC, ¶71.) Defendants allegedly breached the implied covenant of good faith and fair dealing because “(1) Defendants failed to relay proper and adequate correspondence to inform plaintiff of potential actions pertaining to the property and the Deed of Trust; (2) Defendants’ deliberate refusal to provide adequate correspondence, even after Plaintiff informed Defendants that they were not receiving any correspondence; (3) Defendants have shown a keen interest in fulfilling foreclosure attempts without any effort to help the homeowner keep their home; and they are attempting to do so by not providing notice to Homeowners who rightfully exist as signors on a Deed of Trust.” (Id., ¶74.)

The Court previously sustained the demurrer to this cause of action in the TAC, and the Court finds that Plaintiff has not alleged additional facts to cure this cause of action. The same defects are present.

Here, the deed of trust does not obligate Defendants to provide any default notices other than the Notice of Default. (Def.’s RJN, Exh. 2.) Further, even if other default notices were required, that would not sufficiently show that the failure to given other default notices caused Plaintiff to allow the loan to fall into default. To the extent Plaintiff allege the harm is Plaintiff’s inability to seek alternative foreclosure options, the allegation is insufficient because no foreclosure is alleged.

Accordingly, the demurrer to the 4th cause of action for failure to allege sufficient facts is sustained without leave to amend.

  1. Violation of Bus. & Prof. Code sections 17200, et seq. and 17500, et seq. (5th cause of action)

Business & Professions Code §17204 limits private standing for a UCL cause of action to “a person who has suffered injury in fact and has lost money or property as a result of unfair

competition.” “To satisfy the narrower standing requirements imposed by Proposition 64, a party must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Ca1.4th 310, 322.) To satisfy the causation prong of the standing requirement, a plaintiff must show a “causal connection” between their purported economic injury and the alleged unfair conduct. (Id. at 326.) A plaintiff fails to satisfy the statutory causation prong if s/he would have suffered “the same harm whether or not a defendant complied with the law.” (Daro v. Superior Court (2007) 151 Cal.App.4th 109, 1099.)

A review of the cause of action does not show Plaintiff sufficiently alleges economic injury, such as loss of money or property. For example, Plaintiff has not alleged that the wrongful foreclosure sale has occurred. At most, Plaintiff alleges that she has suffered and will continue to suffer substantial irreparable harm and that she does not know the full extent of her damages. (4AC, ¶¶89, 91.) Although the Court previously raised the issue of standing in the prior ruling on the demurrer to the TAC, Plaintiff has not alleged further facts showing that she has standing to bring this claim.

Plaintiff also does not sufficiently allege causation because it is not sufficiently clear how Defendants’ alleged wrongful conduct (4AC ¶86) caused Plaintiff’s default (4AC ¶16).

Accordingly, the demurrer for failure to allege sufficient facts is sustained without leave to amend.

CONCLUSION AND ORDER

The demurrer of Defendants to the 4AC is sustained as to the 1st to 5th causes of action without leave to amend.

While Plaintiff requested leave to amend the pleading in the opposition brief, the Court notes that the same defects in the 4AC were raised in the prior ruling on the demurrer to the TAC. Thus, Plaintiff had the opportunity to amend the pleadings to add facts to cure the defects in the pleading, but she has failed to do so adequately here and she has not stated in her opposition what additional facts she can allege in a fifth amended pleading that would cure the defects raised in each cause of action. Plaintiff has had sufficient opportunities to plead her claims. Based upon this ruling, the case is dismissed.

Defendants shall provide notice of this order.


[1] On July 9, 2018, Plaintiff filed the FAC, which alleged causes of action for: (1) wrongful foreclosure; (2) violation of Civil Code, §2924(a)(6); (3) violation of Civil Code, §2924.11; (4) violation of the covenant of good faith and fair dealing; (5) declaratory relief; and (6) violation of Business & Professions Code, §§17200, et seq. and 17500 et seq. On October 25, 2018, the Court sustained Defendants Bank of America, N.A. (“BOFA”) and BONY’s demurrer to the FAC with 20 days leave to amend.

On November 14, 2018, Plaintiff filed the SAC, which alleged causes of action for: (1) violation of 15 U.S.C. §1641; (2) breach of the covenant of good faith and fair dealing; (3) negligence; (4) NIED; and (5) violation of Business & Professions Code, §§17200, et seq. and 17500 et seq. The 1st, 3rd, and 4th causes of action for violation were new causes of action that Plaintiff added without leave of Court.

On January 18, 2019, the Court granted Plaintiff leave to file the TAC. The TAC, filed on January 22, 2019, asserts causes of action for: (1) violation of 15 USC section 1641, (2) violation of Civil Code section 2924(a)(6), (3) wrongful foreclosure, (4) breach of implied covenant, (5) negligence, (6) NIED, and (7) violation of Bus. & Prof. Code sections 17200, et seq. and 17500, et seq. On September 13, 2019, the Court sustained without leave to amend the 5th and 6th causes of action, and sustained the remaining causes of action with leave to amend.