hanoka v onewest bank opp to demurrer 6-7-11

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Brian P. Ballo, Esq. #134892Law Office of Brian Ballo120 Vantis, Suite 300Aliso Viejo, CA 92656P: (949) 690-4100 F: (949) [email protected]

Attorney for PlaintiffsJill M. Hanoka and Steve R. Hanoka

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE - CENTRAL JUSTICE CENTER

JILL M. HANOKA, an individual; and, STEVE R. HANOKA, an individual

Plaintiffs,

vs.

ONEWEST BANK, FSB, a federal savings bank, and federally chartered corporation, doing business under the name IndyMac Federal Bank, and its IndyMac Mortgage Services division; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the INDX MORTGAGE LOAN TRUST 2006-AR6, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-AR6; AZTEC FORECLOSURE CORPORATION, a California corporation; GLOBAL MORTGAGE FUNDING, INC., California corporation; NEWPORT BEACH ESCROW, INC., a California corporation; and, DAMIEN ROBERT KUTZER, an individual; and Does 1 through 10,

Defendants._______________________________________

)))))))))))))))))))))))))))

CASE NO. 30-2010-00469171

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT

DATE: June 23, 2011TIME: 8:30 a.m.DEPT.: C-24

Complaint filed: April 21, 2010Assigned to: Hon. Derek W. Hunt

-1- Plaintiffs’ Memo P’s & A’s in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

mailto:[email protected]

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Plaintiffs Jill M. Hanoka and Steve R. Hanoka (collectively, “Hanoka’s”

or "Plaintiffs”) respectfully submit these Memorandum of Points and

Authorities in Opposition to Defendants’ Demurrer to Plaintiff’s Complaint.

TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES

Page

I.

INTRODUCTION ..............................................................................................

.............. 3

II. BACKGROUND FACTS

......................................................................................... 4

III. THE LEGAL STANDARD ON A DEMURRER

................................................. 6

IV. NO PAYOFF TENDER REQUIREMENT EXIST, SINCE THERE ARE NOALLEGATIONS OF FORECLOSURE PROCESS IRREGULARITIES, NOR IS RESCISSION SOUGHT ............................................................................

8

VI. LEGAL ARGUMENTS TO SPECIFIC CAUSES OF ACTION

.......................... 8

A. Plaintiffs Can State a Second Cause of Action for Violation of 15 U.S.C.,Section 1641 ............................................................................................................ 9

B. Plaintiffs Can State a Third Cause of Action for Violation of Civil Code,

Section 2937 ............................................................................................................ 9


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C. Plaintiffs Can State a Fourth Cause of Action for Violation of Civil Code, Section 2923.5 ............................................................................................... 10

D. Plaintiffs Can State a Fifth Cause of Action for Breach of the Implied

Covenant of Good Faith and Fair Dealing .......................................................... 11

E. Plaintiffs Can State a Sixth Cause of Action for Violation of the Dodd-

Frank Act, 15 U.S.C., Section 1482 (a) and

(b) ................................................... 12

F. Plaintiffs Can State a Seventh Cause of Action for Declaratory Relief

For Declaratory Relief ............................................................................................ 13

VIII. CONCLUSION

............................................................................................................ 14


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I. INTRODUCTION

Plaintiffs’ Verified Complaint alleges not only that Plaintiffs’ were

defrauded by the originating home loan broker1, but also that demurring

Defendants OneWest Bank, FSB, and Deutsche Bank National Trust

Company, as Trustee (“Deutsche Bank”),2 violated federal and state laws in

attempting to foreclose against Plaintiff’s home, by:

Failing to notify Plaintiffs as required by 15 U.S.C., Section 1641, that the subject $542,000 Loan3 had been transferred in 2009 from IndyMac Bank to IMB HoldCo, then restructured as OneWest Bank, and in 2010, when OneWest Bank sold the Loan to Deutsche Bank, as Trustee, for INDX. (Second Cause of Action).

Failing to notify Plaintiffs as required by Civil Code, Section 2937, when the loan servicing rights had been transferred in or about 2010 (Third Cause of Action).

Failing to contact the borrowers as required by Civil Code, Section 2923.5, prior to recording the Notice of Default on January 26, 2011, to assess the borrowers’ financial situation and to explore options to avoid foreclosure (Fourth Cause of Action).

Failing to provide Plaintiffs with a Non-Approval Notice as required by the Dodd-Frank Act, 15 U.S.C., Section 1482(a) and (b) (Sixth Cause of Action).

Thus, the graveman of Plaintiffs’ Complaint alleges that the Defendant

banks did not comply with statutes designed to ensure that lenders act fairly

with borrowers, and seeks injunctive relief against a pending foreclosure

sale, while the Hanoka’s updated Loan Modification Application is being re-

reviewed by Defendants OneWest Bank and Deutsche Bank.

1 As alleged in paragraph 35 of the Complaint, the Defendant brokers fraudulently caused the Hanoka’s to both sign a Promissory Note and Deed of Trust for approximately $480,000, then fraudulently and materially changed such Loan documents, such that: (a) the Promissory Note improperly indicated a principal amount of $542,500, and improperly indicated that it was signed by Jill M. Hanoka only, and (b) the Deed of Trust improperly indicated a principal amount of $542,500, signed by both Jill M. Hanoka and Steve R. Hanoka.

2 Deutsche Bank is Trustee for the true loan investor INDEX Mortgage Loan Trust 2006-ARB, Mortgage Pass Through Certificates. 3


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Plaintiffs and this Court understand very well that Plaintiffs have no

absolute right to a loan modification, therefore, Defendants’ assertion that

this is Plaintiff’s position, is a strawman argument.

Rather Plaintiffs’ allegations can be summed up as follows: if

Defendants don’t want to approve Plaintiffs for a loan modification, and

instead want to foreclose against Plaintiffs’ home and family, then

Defendants had better follow all the statutes and act fairly when reviewing

and denying Plaintiffs’ loan modification application, as well as follow all the

statutes requiring lenders to contact borrowers before instituting the

foreclosure process, and to give borrowers proper notice of when their loan

was sold, and the servicing rights transferred. Simply put, because

Defendants did not properly follow these rules, they are not entitled to

foreclose.

Defendants have also asserted that Plaintiffs must first pay their debt

in full before even being allowed to challenge the foreclosure sale. However,

he so-called “tender rule” only applies when a borrower seeks to set aside or

rescind a foreclosure sale, not when a borrower disputes the principal

amount due, and seeks a modification.

Defendants’ statute of limitations challenges to Plaintiffs’ second cause

of action also fail, notwithstanding Plaintiffs’ allegations as to when certain

events loan transfer transactions may have taken place. However, Plaintiffs

had no notice that INDX was the true investor, when the Notice of Default

was recorded on January 26, 2011.

Accordingly, as further argued in this Memorandum of Points and


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Authorities, Defendants’ Demurrer should be overruled.

I. BACKGROUND FACTS

Plaintiffs allege -- on information and belief, and in retrospect -- that

after the subject Loan was fraudulently funded in 2006, there were transfers

of the Loan during 2009 when IndyMac Bank became IMB HoldCo, then

restructured as OneWest Bank, and again, and 2010, when OneWest Bank

sold the Loan to Deutsche Bank, as Trustee, for the true beneficiary - INDX. ¶

19-23 of the Verified Complaint.

However, the allegations of paragraph 47 of the Complaint make clear

that “the failure of Defendants’ to comply with [15 U.S.C., Section 1641,

which require lenders to notify borrowers within 30 days of a loan transfer],

meant that the Hanoka’s did not know when they received the Notice of

Default [recorded January 26, 2011] that all past due amounts were actually

owed to INDX.4

Although Plaintiffs were approved for a trial loan modification plan

under the Home Affordable Modification Program (“HAMP”) on February 9,

2010, and again on April 13, 2010, and notwithstanding their timely

payments of all amounts due under these two trial modification plans, the

Hanoka’s have not yet been approved for a permanent loan modification.

Defendants assertion in their moving papers that the Hanoka’s have been

denied for a loan modification is not supported by any evidence.

On January 26, 2011, Aztec, as Trustee under the Deed of Trust

4 The Hanoka’s lack of knowledge as to the identity of the true beneficiary until January 2011, is distinct from the Hanoka’s realization in December 2009, that the Promissory Note provided to them by IndyMac was false and fraudulent regarding the loan amount. See paragraph 22 of the Complaint.


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securing the Loan, recorded a Notice of Default on behalf of Deutsche Bank,

as Trustee, for INDX, which made an Election to Sell the Property in a non-

judicial foreclosure sale.

On February 27, 2011, the Hanoka’s submitted another Loan

Modification Application which sought to modify the Loan, and cure the Loan

delinquency.

On March 21, 2011, the IndyMac Mortgage Services division of

OneWest wrote the Hanoka’s a letter stating that the Hanoka’s were not

eligible for a loan modification under the HAMP program, however, could be

considered under an internal loan modification. As of the filing of this

Complaint, the status of any internal loan modification review is unknown to

Plaintiffs.

On or about May 20, 2011, a Notice of Trustee’s Sale was recorded,

scheduling a June 10 foreclosure sale, which has been postponed.

On May 24, 2011, an updated Loan Modification Application was again

submitted.

IV. THE LEGAL STANDARD ON A DEMURRER

A. The Standard for Ruling on a Demurrer is Liberal

Construction.

Code of Civil Procedure, Section 452 sets forth the legal standard for

ruling on a demurrer—liberal construction with a view to substantial justice

between the parties. (See Stevens v. Sup. Ct. (API Auto Ins. Services) (1999)

75 Cal.App.4th 594, 601.) “The court must, in every stage of an action,

disregard any defect in the pleadings which does not affect the substantial


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rights of the parties. . . All that is necessary as against a general demurrer is

to plead facts entitling the plaintiff to some relief.” Gressley v. Williams

(1961) 193 Cal.App.2d 636, 639.

B. Defendants Bear A Heavy Burden On A General Demurrer.

In California, the Court is required to accept the allegations of a

Complaint as true when ruling on a demurrer. Witkin, Summary of

California Procedure (2d Ed.) Pleading, §800, p. 2413. Plaintiff need only

allege facts “in ordinary and concise language”. California Code of Civil

Procedure §425.10. A complaint states facts sufficient to constitute a cause

of action if it appears the plaintiff is entitled to any relief. [Addiego v. Hill,

238 Cal.App.2d 842 (1965).] In the context of a demurrer, complaints must

be liberally construed. [Buss v. J.O. Martin Co., 241 Cal.App.2d 123, 133-34,

(1st Dist. 1966)]. It has been held that “a Plaintiff need not plead facts with

specificity where the facts are within the knowledge and control of the

defendant and are unknown to Plaintiff.” [Credit Managers Association of

Southern California v. Superior Court, 51 Cal.App.3d 352, 361 (1975)

citations omitted.]

A demurrer can be used only to challenge defects that appear on the

face of a complaint. For the purpose of testing the sufficiency of the

pleading on demurrer, the court must accept as true all material facts

properly pleaded. [Blatty v. New York Times Co., 42 Cal. 3d 1033, 1040

(1986); Whether the plaintiff will be able to prove the pleaded facts is

irrelevant to ruling upon the demurrer. [Stevens v. Superior Court, 180 Cal.

App. 3d 605, 609-10 (1986).]


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It is error to sustain a demurrer if it appears that the plaintiff is

entitled to any relief under the circumstances pleaded. [Dubins v. Regents

of Univ. Of Cal., 25 Cal. App. 4th 77, 82 (1994); Jack Heskett Lincoln-

Mercury, Inc. v. Metcalf, 158 Cal. App. 3d 38, 41 (1984).] If there is a

reasonable possibility that a pleading defect can be cured, leave to amend

must be granted. [Platt v. Coldwell Banker Residential Real Estate Servs.,

217 Cal. App. 3d 1439, 1444 (1990); Blank v. Kirwan, 39 Cal. 3d 311, 318

(1985).] Defendants’ demurrer cannot be granted under these

standards.

V. NO PAYOFF TENDER REQUIREMENT EXIST, SINCE THERE ARE NO ALLEGATIONS OF FORECLOSURE PROCESS IRREGULARITIES, NOR IS RESCISSION SOUGHT

Under California law, the “tender rule” requires that as a precondition

to challenging a foreclosure sale, the borrower must make a valid and viable

tender to the lender of the amount due on the loan. California Civil Code

§1691. However, this rule only applies to causes of action to set aside a

foreclosure sale, cancellation of a trustee’s deed, or where a borrower is

seeking rescission of the loan based on violations of the federal Truth-in-

Lending Act.

Here, Plaintiffs do not dispute the validity of the First Loan -- they seek

to have it modified, not rescinded. Therefore, the so-called “tender rule”

does not apply. Again, Plaintiffs are suing the Defendant lender and servicer

for violation of federal and state laws designed to give notice of loan and

servicing transafers. The cases cited by OneWest are inapposite; the tender

rule does not bar such causes of action.


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Moreover, tender may not be required where it would be inequitable to

do so, Onofrio v. Rice (1997) 55 C.A.4th 413, 424. At present, the Complaint

is silent as to whether Plaintiffs can, or are willing to tender, the full amount

due as a condition to proceeding with their Complaint. If the Court is

requiring a more specific showing, the the Court should give Plaintiffs leave

to amend the Complaint to make appropriate tender allegations, or to make

such a showing.

VI. LEGAL ARGUMENTS TO SPECIFIC CAUSES OF ACTION

A. Plaintiffs Can State a Second Cause of Action for Violation of 15 U.S.C.,

Section 1641

Defendants argue that Plaintiffs’ TILA cause of action is barred by a one

year statute of limitations, and point to paragraph 21 of the Complaint, which

alleges on information and belief that at some time after June 2009, OneWest

Bank sold the Loan to Deutsche Bank, as Trustee, for INDX, the current Loan

Investor, however, through its IndyMac Mortgage Services division, retained

the servicing rights.

However, Defendants confuse chronological allegations to make their

Complaint intelligible, with either the actual dates that the loan transfers and

servicing rights transfers occurred (to which there is no clear evidence), or

the date on which Plaintiffs had actual or constructive knowledge as to when

Deutsche Bank, as Trustee for INDX, became the true investor.

Here, as alleged in paragraphs 46-47 of the Complaint, Plaintiffs did

not know in early February 2011, soon after the Notice of Default was

recorded on January 26, 2011, that Deutsche Bank, was the Trustee for INDX,


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the true investor. Thus, since Plaintiffs’ action was filed on April 21, 2011,

this is well within the applicable one year statute of limitations.

In the alternative, Plaintiffs argue that the doctrine of “equitable

tolling” of the statute of limitations should apply. Unlike the initial loan

transaction of which a borrower is obviously aware, where a party injured by

another's fraudulent conduct "remains in ignorance of it without any fault or

want of diligence or care on his part, the bar of the statute does not begin to

run until the fraud is discovered ..." Osterneck v. E.T. Barwick Indus., 825

F.2d 1521(11th Cir.1987), aff'd, Osterneck v. Ernst & Whinney, 489 U.S. 169,

109 S.Ct. 987, 103 L.Ed.2d 146 (1989). “Equitable tolling" is the doctrine

under which plaintiffs may sue after the statutory time period has expired if

they have been prevented from doing so due to inequitable circumstances.

TILA is subject to equitable tolling. King v. California, 784 F.2d 910, 914-15

(9th Cir.1986).

Accordingly, either by reason of whenever the actual loan transfer date

occurred – as to which there is no clear evidence – or by reason of

calculating the statute of limitations period from when Plaintiffs could have

reasonably discovered the loan transfer following the recording of the Notice

of Default, Plaintiffs’ cause of action for violation of 15 U.S.C., Section 1641,

was filed timely, and states a cause of action.

B. Plaintiffs Can State a Third Cause of Action for Violation of Civil Code,Section 2937

The legislative purpose of Civil Code, Section 2937, which requires

notice to the borrower when there has been any transfer of the loan


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servicing rights, is to “protect the borrower or subsequent obligor from

fraudulent business practices.”

Here, neither OneWest Bank, nor its’ IndyMac Mortgage Services

division, nor Deutsche Bank, nor INDX, notified the Hanoka’s that the

servicing rights had been retained by or transferred to IndyMac Mortgage

Services when the Loan was sold.5

Nothing in Civil Code, Section 2937, states that the duty to notify the

borrower only arises in third-party transfers. Moreover, it is not clear from

the facts, which Plaintiffs have only alleged on information and belief at this

point, that there was not a transfer subject to the notice requirements of

Civil Code, Section 2937. Accordingly, Plaintiffs should be allowed to pursue

their cause of action for violation of Civil Code, Section 2937, with any attack

made on the appropriate facts at a later pleading stage.

C. Plaintiffs Can State a Fourth Cause of Action for Violation of Civil

Code, Section 2923.5

Defendants point to the boilerplate “robo-signed” Declaration attached

to the Notice of Default, and argue that presumptions favoring the legitimacy

of foreclosure proceedings should apply to bar Plaintiffs’ cause of action for

violation of Civil Code, Section 2923.5.

However, this boilerplate Declaration needs to be contrasted with the

Verified Complaint, which alleges that “the Hanoka’s deny any such

discussions [wherein any lender or servicer contacted the borrower and

5 At this time, Plaintiffs’ only speculate, with the assistance of counsel, that a new Servicing Agreement was entered into between IndyMac Mortgage Services with Deutsche Bank on behalf of INDX.


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assessed their financial condition and/or explored options to avoid

foreclosure] took place before the Notice of Default was recorded.

As indicated by Mabry v. Superior Court (June 4, 2010) 185 Cal. App.

4th 208, when a conflict exists in the testimony regarding compliance with

Civil Code, Section 2923.5, the Court should prudently find that the borrower

has a reasonably likelihood of prevailing on the merits of a cause of action

alleging a violation of this statute, and postpone the foreclosure sale.

Moreover, at the demurrer stage, when the Court is required to accept

the allegations of a Complaint as true [Witkin, Summary of California

Procedure (2d Ed.) Pleading, §800, p. 2413], the Court should overrule the

demurrer.

D. Plaintiffs Can State a Fifth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

The contracts at issue here are the Promissory Note and Deed of Trust,

which, although transferred twice, are the contracts upon which Defendants

seek to foreclosure against Plaintiffs’ interests in their Property. Complaint ¶

65. Plaintiffs allege that Defendants violated this covenant by (a) failing to

meaningfully evaluate Plaintiffs' financial condition; (b) failing to process

Plaintiffs' Loan Modification Applications under established HAMP and

internal guidelines, as OneWest Bank represented to Plaintiffs that it would,

and (c) by directing the Trustee under the Deed of Trust to pursue a non-

judicial foreclosure sale. Complaint ¶ 66.

Every contract imposes upon each party a duty of good faith and fair

dealing in its performance and its enforcement.” Carma Developers, Inc. v.


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Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371, 6 Cal.Rptr.2d 467, 826 P.2d 710

(1992) (quoting Restatement (Second) of Contracts § 205). “The covenant of

good faith finds particular application in situations where one party is

invested with a discretionary power affecting the rights of another. Such

power must be exercised in good faith." Marsu, B.V. v. Walt Disney Co., 185

F.3d 932, C.A.9 (Cal.1999). A “breach of a specific provision of the contract

is not a necessary prerequisite” to a breach of an implied covenant of good

faith and fair dealing. Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2

Cal.4th 342, 371, (1992).

Plaintiffs’ allegations should be construed liberally. Accordingly,

Defendants’ Demurrer to the Complaint’s fifth cause of action should be

overruled.

E. Plaintiffs Can State a Sixth Cause of Action for Violation of the Dodd-

Frank Act, 15 U.S.C., Section 1482 (a) and (b)

As point out in the Factual Background section, above, and as set forth

in paragraphs 30 and 70 of the Complaint, Plaintiffs allege that Defendants

have failed to approve Plaintiffs for a permanent loan modification after

providing two temporary loan modifications. Notably, it is not clear whether

Defendants have actually denied Plaintiffs for a permanent loan modification.

The IndyMac Mortgage Services division letter date March 21, 2011,

only states that Plaintiffs are not eligible for HAMP, but “could be considered

under an internal loan modification program.” Meanwhile, a foreclosure sale

date was set. As such, Plaintiffs’ are being effectively denied a loan

modification, which gives rise to Defendants’ duty to explain such denial per


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the Dodd-Frank Act.

Defendants assert that the Dodd-Frank Act does not apply since the

Act had not even been enacted when the Hanoka’s were denied a permanent

loan modification. However, again, Defendants counsel is attempting to

establish modification denial, when no Defendant lender or servicer has

issued any letter denying a permanent loan modification, and no such final

denial has been alleged. Rather, it is the looming pendency of the

foreclosure that is creating an effective denial, and which gives rise to a duty

that OneWest explain the loan modification status.

F. Plaintiffs Can State a Seventh Cause of Action for

Declaratory Relief

In the Seventh Cause of Action, Plaintiffs request that the Court review

and interpret the various Loan, Note and foreclosure documents, and declare

that Defendants are not entitled to foreclose.

As supported by Plaintiffs’ other causes of action, Plaintiffs have

alleged that present and actual controversies exist as to whether Defendants

have adequately complied with several federal and state statutes.

Accordingly, since Plaintiffs have adequately pled facts sufficient to support a

cause of action for Declaratory Relief, Defendants' Demurrer thereto should

be denied.

VII. CONCLUSION

For all the foregoing reasons, Defendants partial Demurrer to Plaintiffs'

Complaint, should be overruled and/or denied.

To the extent that this Court grants any part of Defendants’ Demurrer,


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then the Court should also grant Plaintiffs leave to file a First Amended

Complaint to cure any defects, or add more specificity.

Law Office of Brian P. Ballo

Dated: June 9, 2010 ____________________________

Brian P. Ballo, Esq.Attorney for Plaintiffs Jill and Steve Hanoka


http://www.cfaw.com/los-angeles/

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PROOF OF SERVICE

HANOKA v ONEWEST BANK

OC Superior Court, Case No. 30-2010-00469171

I reside in the County of Orange, State of California. I am over the age of 18 and am not a party to the within action. My address is 120 Vantis, Suite 300, Aliso Viejo, CA 92656.

On June 9, 2011, I served Plaintiffs' Opposition to Defendants' Demurrer to Plaintiffs' Complaint, on:

Andrew Miller, Esq.Allen, Matkins, et. al.515 South Figueroa Street, Ninth FloorLos Angeles, CA 90071

_XX_ By Mail: I caused such envelope(s) to be deposited in the mail at my business address, addressed to the addressee(s) designated. I am readily familiar with the company’s collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Irvine, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this affidavit.

XX_ By Email: at [email protected]

____ By Federal Express Overnight: I caused such envelope(s) to be delivered via Federal Express Overnight courier service to the addressee(s) designated.

____By Hand Delivery: I caused said envelope to be delivered by hand to the addressee(s) designated.

I declare under penalty of perjury under the laws of the State of California that all the foregoing is true and correct. Executed this 9th day of June 2011.

_________________________ Brian Ballo, an Individual


mailto:[email protected]

http://www.cfaw.com/los-angeles/

hanoka v onewest bank opp to demurrer 6-7-11

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