Not of Demurrer and Demurrer to Ud

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NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN MATEO, SOUTHERN JUDICIAL DISTRICT

LIMITED JURISDICTION

HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee

Plaintiff, v.

; and DOES 1 through 100, inclusive,

Defendants.

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

Case No.: (Unlawful Detainer)

NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; AND DECLARATION OF TIMOTHY F. UMBREIT

Filed concurrently with Request for Judicial Notice; [Proposed] Order; and Proof of Service

Hearing Date: December 1, 2009Time: 9:01 A.M.Dept.: LM UD Complaint Filed: November 6, 2009

Related Case: CIV12359

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on December 1, 2009 at 9:01 A.M. or as soon thereafter as

the matter may be heard in Department LM of the above-referenced Court, located at 400 County

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NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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Center, Redwood City, California 94063, Defendants

will, and hereby do, demur to Plaintiff HSBC BANK USA (“HSBC”) Unlawful Detainer

Complaint on the following grounds:

1. Plaintiff HSBC does not have the legal capacity to sue pursuant to Code of Civil

Procedure § 430.10(b).

2. Since Plaintiff lacks standing to commence an unlawful detainer action against

Defendants as it fails the “real party in interest” requirement, “the pleading does not state facts

sufficient to constitute a cause of action” on behalf of the proper specific plaintiff pursuant to

Code of Civil Procedure § 430.10(e).

This Demurrer is made pursuant to the provisions of Code Civil Procedure §§ 430.10(b)

and 430.10(e), and is based upon this Notice; the attached memorandum of points and authorities;

declaration of _______________________-in support thereof; the concurrently-filed request for

judicial notice of Defendants’ Complaint court file; the records, files, and pleadings in this action;

and such further evidence and argument the Court may consider at hearing.

Respectfully submitted,

DATED: November 18, 2009

By ______________________________________

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TABLE OF CONTENT

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TABLE OF CONTENT

TABLE OF AUTHORITIES………………………………………………………………..…... ii

MEMORANDUM OF POINTS AND AUTHORITIES………………………………………... 1

STATEMENT OF FACTS ………………………………................................................. 1

SUMMARY OF ARGUMENT…………………………………………………………... 3

ARGUMENT……………………………………………………………………………... 4

I. DEFENDANTS MAY BASE THIS DEMURRER ON THEIR JUDICIALLY-NOTICEABLE WRONGFUL FORECLOSURE COMPLAINT.…………………….......................................................................... 4

II. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE PURSUANT TO CODE OF CIVIL PROCEDURE § 430.10(b)…......................... 4

III. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED BECAUSE THE UD COMPLAINT FAILS TO STATE A CAUSE OF ACTION PURSUANT TO CODE OF CIVIL PROCEDURE § 430.10(e)………………………………………………………... 7

CONCLUSION………………………………………………………………………………….. 7

DECLARATION OF TIMOTHY F. UMBREIT IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT........................... 9

[PROPOSED] ORDER– Filed Separately

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER – Filed Separately

PROOF OF SERVICE –Filed Separately

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TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES

CALIFORNIA STATUTES:

Civil Code § 2924Civil Code § 2932.5Code of Civil Procedure § 430.10(b) Code of Civil Procedure § 430.10(e)Code of Civil Procedure § 430.30 Code of Civil Procedure § 430.70Evidence Code § 452 Evidence Code § 453

CASES:

Blank v. Kirwan (1985) 39 Cal.3d 311 Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599County of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996Parker v. Bowron, (1953) 40 Cal.2d 344W ashington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

Plaintiff’s Complaint provides that Defendants, as trustors, conveyed the subject property

at _______________________________________(the “Property” or “Home”) to a Trustee by a

Deed of Trust executed and recorded in the San Mateo County Recorder’s Office on September

19, 2006 (“Deed of Trust”) to secure payment of said trustors’ Promissory Note. See, Plaintiff’s

Complaint, ¶4(A). Thereafter, as alleged by Plaintiff, the Trustee of said Deed of Trust sold and

conveyed title to the Property to Plaintiff, HSBC, “pursuant to the foreclosure and sale of the

[Property], under the power of sale contained in the Deed of Trust and in compliance with Civil

Code § 2924”. Plaintiff’s Complaint ¶4(B).

On October 21, 2009, Plaintiff caused to be served a written 3/90-Day Notice stating that

Plaintiff had purchased the Property and demanded that all persons vacate the premises.

On November 6, 2009, Defendants filed an action for wrongful foreclosure in San Mateo

Superior Court, Southern Judicial District, Unlimited Jurisdiction, Case No.

CIV______________, naming HSBC as one of the defendants (“Defendants’ Wrongful

Foreclosure Complaint” or “Defendants’ Complaint” or “Defendants’ Verified Complaint”);

attached to the concurrently-filed Request for Judicial Notice as Exhibit A). Concurrently with

this Demurrer, and in support thereof, Defendants request this Court to take judicial notice of

Defendants’ Wrongful Foreclosure Complaint pursuant to Evidence Code §§ 452 and 453 and

Code of Civil Procedure §§ 430.30 and 430.70.

Defendants’ Verified Complaint includes claims for setting aside the Trustee Sale,

canceling the Trustee’s Deed, Quiet title, and declaratory and injunctive relief, while alleging,

inter alia, the following:

1) On or about September 14, 2006 Defendants entered into a written agreement with

American Mortgage Express, Corp. for the financing of Defendants’ loan for the

purchase of their Home. Defendants for valuable consideration, as borrowers, made,

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executed, and delivered to American Mortgage Express, Corp. a written promissory

note in the total amount of $960,000.00.

2) To secure payment of the principle sum and interest as provided in the Note and as part

of the same transaction, Defendants, as trustors, executed and delivered to Mortgage

Electronic Registration Systems, Inc. (“MERS”) as beneficiary, a Deed of Trust dated

September 14, 2006 (the “Deed of Trust”), by the terms of which Plaintiffs, as trustors,

conveyed to Alliance Title of San Mateo, as trustee, the Property. The Deed of Trust

was recorded on September 19, 2006.

3) On or about February 23, 2009, MERS assigned all beneficial interests under the Deed

of Trust to INDYMAC BANK FSB (“INDYMAC”) (hereinafter referred to as the

“Assignment of Deed of Trust”). Although executed in February, 2009, the

Assignment of Deed of Trust was recorded only later, on August 26, 2009.

4) On or about March 10, 2009, Defendants INDYMAC and/or REGIONAL SERVICE

CORPORATION and/or LPS DEFAULT and/or LPS AGENCY caused to be recorded

a Notice of Default and Election to Sell on Defendants’ Property. Although

REGIONAL SERVICE CORPORATION claimed to be “either the duly appointed

Trustee, the substitute Trustee or acting as agent for Beneficiary under [the Deed of

Trust]”, no such indication is to be found in the Official Records in the Office of the

Recorder of San Mateo County, California.

5) On or about June 18, 2009, Defendants received a Notice of Trustee Sale from

REGIONAL SERVICE CORPORATION stating that a Trustee Sale of the Property is

set to take place on July 8, 2009. The Trustee Sale was later postponed to September

14, 2009 and a notice thereon was sent to Defendants.

6) On September 14, 2009, REGIONAL SERVICE CORPORATION and/or LPS

DEFAULT and/or LPS AGENCY conducted a Trustee Sale of the Property. The

Property was purportedly sold to HSBC as Trustee for BCAP LLC 2006-AA2 (while

INDYMAC serves as a Servicer of BCAP LLC 2006-AA2), allegedly or presumably,

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under the power of sale contained in the aforementioned Deed of Trust. The Trustee’s

Deed Upon Sale of the Property was recorded on October 7, 2009.

7) In their Wrongful Foreclosure Action, Defendants allege, inter alia, violations of

California law and Federal executive orders in improperly holding the sale of

Defendants’ Home and in wrongfully executing, delivering, and recording Trustee’s

Deed on the Property, as set forth below.

On November 6, 2009, concurrently with Plaintiffs’ filing of their Complaint or

immediately thereafter, HSBC, the purported purchaser of the Property in a Trustee Sale, filed this

Unlawful Detainer action (“UD Complaint”) against Defendants.

On or about November 15, 2009, Defendants were served with Plaintiff’s UD Complaint.

SUMMARY OF ARGUMENT

In their UD Complaint, Plaintiff explicitly held itself as an entity qualified to commence

this Unlawful Detainer action against Defendants. Plaintiff’s Complaint ¶1. However, it appears

on the face of the UD Complaint and Defendants’ Verified Complaint, which is judicially-

noticeable by this Court, that:

Plaintiff HSBC is not a real party in interest; Title has not been perfected in Plaintiff since

the title to the Property was not conveyed to Plaintiff under the power of sale contained in the

Deed of Trust and/or was not conveyed in compliance with Civil Code § 2924; Plaintiff HSBC

lacks capacity and standing to sue; and, Plaintiff’s Complaint fails to state facts sufficient to

constitute cause of action on behalf of the proper specific plaintiff, pursuant to Code of Civil

Procedure 1 §§ 430.10(b) and 430.10(e).

Therefore, Defendants’ Demurrer must be sustained without leave to amend and Plaintiff’s

Complaint dismissed.

1 Hereinafter referred to as “CCP”.

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ARGUMENTI

DEFENDANTS MAY BASE THIS DEMURRER ON THEIR JUDICIALLY-NOTICEABLE WRONGFUL FORECLOSURE COMPLAINT

CCP § 430.10 provides in pertinent part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer … as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (b) The person who filed the pleading does not have the legal capacity to sue” (emphasis added).

In turn, CCP § 430.30(a) states:

When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading (emphasis added).

A demurrer may challenge the legal sufficiency of an opponent's pleading based on

defects that appear on the face of the pleading under attack and/or from matters outside the

pleading that are judicially noticeable. See, Blank v. Kirwan (1985) 39 Cal.3d 311, 318; County

of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996, 1008-1009, as modified.

Concurrently with their Demurrer, Defendants are filing a Request for Judicial Notice of

said Wrongful Foreclosure Complaint pursuant to Evidence Code §§ 452 and 453. Under CCP §

430.30, Defendants may base their Demurrer on the judicially-noticed Wrongful Foreclosure

Complaint court file.

IITHIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED

BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE PURSUANT TO CODE OF CIVIL PROCEDURE § 430.10(b)

Plaintiff HSBC filed this UD Complaint on or about November 6, 2009, concurrently with

or immediately after Defendants filed their Wrongful Foreclosure Complaint naming HSBC as

defendant. Defendants’ Verified Complaint alleges the following:

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INDYMAC (allegedly, HSBC’s predecessor in interest) had no legal capacity to

commence, execute, or cause to be executed a Trustee Sale. As a result of the Office of Thrift

Supervision’s March 19, 2009 Order, which appointed the FDIC as the receiver for INDYMAC,

INDYMAC became an “inactive institution” and no longer in existence on March 19, 2009.

INDYMAC, a defunct corporation, had no authority and legal capacity to initiate a trustee sale as

of March 19, 2009. The only one who had such authority was the receiver, FDIC;

Since INDYMAC was unauthorized to conduct a trustee sale, its purported agents,

REGIONAL SERVICE CORPORATION and/or LPS DEFAULT and/or LPS AGENCY were

unauthorized to do so as well;

Also, INDYMAC issued an unauthorized Notice of Default and Election to Sell as

INDYMAC did so before the Assignment of Deed was duly acknowledged and recorded, as

required by Civil Code § 2932.5;

REGIONAL SERVICE CORPORATION was never dully appointed as a substitute

Trustee and nonetheless acted as such;

INDYMAC, REGIONAL SERVICE CORPORATION, LPS DEFAULT and LPS

AGENCY thus failed to comply with or misrepresented their compliance with the requirements

under Civil Code § 2924 as they were not authorized to conduct a Trustee Sale and unlawfully

issued a Notice of Default and Election to Sell, a prerequisite thereto;

Since the underlying sale was unlawful, the Trustee’s Deed Upon Sale delivered to HSBC

is invalid and void. Further, HSBC is still subject to any deficiencies in the underlying Trustee

Sale because HSBC is not a bona fide purchaser, as it was already the beneficial owner of the

underlying obligation, whatever that might be and as such, did not exchange any consideration for

the so called Trustee’s Deed; HSBC did not acquire any interest in the property through a sale; did

not pay fair consideration or for that matter did not pay any consideration; was not a bona fide

purchaser; had, at all times, notice both actual and constructive of defects in the underlying Note,

Deed of Trust and the defects on the on the face of the documents recorded in the public records;

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More specifically, HSBC had constructive notice of the defects alleged by Defendants

because the chain of title of the Property in the Official Records in the office of the Recorder of

San Mateo County, California clearly shows that a Notice of Default was recorded before Power

of Sale ever vested in INDYMAC, i.e. before the Assignment of Deed of Trust was “duly

acknowledged and recorded” (Civil Code §2932.5). Further, HSBC as Trustee for BCAP LLC

Trust 2006-AA2 cannot be said to qualify as a bona fide purchaser without notice since

INDYMAC serves as a Servicer of BCAP LLC Trust 2006-AA2, which may indicate that the

transfer of the Property from INDYMAC to HSBC was part of a well calculated scheme between

INDYMAC and HSBC to sanitize the Note. And finally, on January 15, 2009, Defendants,

through counsel, sent INDYMAC a Qualified Written Request (“QWR”) to put them on notice

that Defendants are concerned about their mortgage and believe there may have been, or may be

some discrepancies or violations in the originating, closing, terms or servicing of their Home loan.

Once in receipt of the aforementioned QWR, INDYMAC had an affirmative duty to give notice

to, inter alia, HSBC.

In light of the foregoing in Defendants’ Verified Complaint and attachments thereto, which

are judicially-noticeable, it appears title to the Property was not conveyed to Plaintiff under the

power of sale contained in the Deed of Trust and/or was not conveyed in compliance with Civil

Code § 2924. Thus, title has not been perfected in Plaintiff and Plaintiff is not a real party in

interest.

A plaintiff lacks standing to sue if it not is a real party in interest. See, e.g., W ashington

Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 669 [citing Color-Vue, Inc. v. Abrams

(1996) 44 Cal.App.4th 1599, 1604]. Plaintiff’s lack of legal standing is pertinent to the question

whether Plaintiff’s UD Complaint sufficiently states a cause of action, see infra.

There is a difference between the capacity to sue, which is the right to come into court, and

the standing to sue, which is the right to relief in court (see Color-Vue, Inc. v. Abrams, id), in the

instant case Plaintiff HSBC also lacks the capacity to sue as HSBC is subject to any deficiencies

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in the underlying Trustee Sale and its alleged-predecessor in interest, INDYMAC, which similarly

lacks such legal capacity.

Therefore, Plaintiff falls squarely within the objectionable grounds stated in CCP §

430.10(b). Accordingly, Plaintiff’s Complaint cannot stand and must be dismissed.

IIITHIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED

BECAUSE THE UD COMPLAINT ALSO FAILS TO STATE A CAUSE OF ACTIONPURSUANT TO CODE OF CIVIL PROCEDURE § 430.10(e)

CCP § 430.10 provides in pertinent part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer … to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action” (emphasis added).

A general demurrer should be sustained if a party is not the proper party to bring suit. See

Parker v. Bowron, (1953) 40 Cal.2d 344, 350-351.

Here, the pleading does not meet the cause of action requirement because plaintiff lacks

standing to sue, as Plaintiff is not a real party in interest (see, supra). This is also why Plaintiff’s

ability to state a claim is stymied.

Therefore, the Court cannot move forward with the merits of the case and Defendants’

Demurrer should be sustained without leave to amend.

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CONCLUSION

FOR THE FOREGOING REASONS, Defendants respectfully request that this Court

sustain Defendants’ Demurrer without leave to amend.

Respectfully submitted,

Dated: November 18, 2009

9DECLARATION OF TIMOTHY F. UMBREIT

IN SUPPORT OF DEFENDANTS’ DEMURRER TO UNLAWFUL DETAINER COMPLAINT

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DECLARATION OF IN SUPPORT OF

DEFENDANTS’ DEMURRER TO UNLAWFUL DETAINER COMPLAINT

I, ____________________________, hereby declare the following:

1. I am an attorney at law, duly licensed to practice before all of the courts of the State

of California and am an employee of__________________________, attorneys of record for

Defendants ________________________and _________________________________. I have

personal knowledge of the facts contained in this declaration and if called as a witness, I could and

would testify competently to these matters under oath.

2. Defendants filed an action for wrongful foreclosure in San Mateo Superior Court,

Southern Judicial District, Unlimited Jurisdiction, on November 6, 2009 alleging, inter alia,

violations of California law and Federal executive orders in improperly holding the sale of

Defendants’ Home and in wrongfully executing, delivering, and recording Trustee’s Deed on

Defendants’ Property.

3. On November 6, 2009, concurrently with Defendants’ filing of their Complaint or

immediately thereafter, the purchaser of the Property in the Trustee Sale, HSBC, filed an Unlawful

Detainer action against Plaintiffs in San Mateo Superior Court, Southern Judicial District, Limited

Jurisdiction.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed on November 18, 2009 at Los Angeles, California.

______________________Declarant

PROPOSED ORDER

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Attorneys for DefendantsJON JON MANUEL and MARIA VICTORIA MANUEL





Plaintiff, v.


Defendants.

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

Case No.:

[PROPOSED] ORDER

Date: December 1, 2009Time: 9:01 A.M.Dept: LM

Complaint Filed: November 6, 2009

Related Case: CIV489367 (Unlimited)

PROPOSED ORDER

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TO ALL PARTIES AND THEIR COUNSELS OF RECORD:

IT IS HEREBY ORDERED THAT:

Defendants Demurrer to the Unlawful Detainer Complaint is hereby sustained without

leave to amend.

IT IS FURTHER ORDERED THAT:

_______________________________________________________________________________

_______________________________________________________________________________

_______________________________________________________________________________

DATE: _________________________ __________________________________

Judge of the Superior Court

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Attorneys for Defendants





Plaintiff, v.


Defendants.

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

Case No.: (Unlawful Detainer)

PROOF OF SERVICE OF DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF TIMOTHY F. UMBREIT; [PROPOSED] ORDER; REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT; AND EXHIBIT A

Hearing Date: December 1, 2009Time: 9:01 A.M.Dept.: LM UD Complaint Filed: November 6, 2009

Related Case: CIV489367

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PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is

On November 18, 2009, I served the following document described as REQUEST FOR JUDICIAL NOTICE on all interested parties in this action by placing [X] a true copy [ ] the original thereof enclosed in sealed envelopes addressed as follows:

SEE ATTACHED SERVICE LIST[ ] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error

was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a record of the transaction.

[X] (BY MAIL, 1013a, 2015.5 C.C.P.)

[ ] I deposited such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid.

[ ] I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

[ ] (BY PERSONAL SERVICE) I caused the foregoing envelope to be delivered by hand to the addressee on the attached Service List.

[ ] (BY FEDERAL EXPRESS ) I caused the foregoing envelope to be delivered by xxxx FEDEX

[X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

[ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

Executed on November 18, 2009 at Los Angeles, California.

_______________________________

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SERVICE LIST

Attorney(s) for Plaintiff, HSBC

Not of Demurrer and Demurrer to Ud

Documents

Transcript of Not of Demurrer and Demurrer to Ud