Minyard, Bryn S vs. Pennymac Loan Services, LLC

Case No.: VCU335033 Date: August 24, 2026 Time: 8:30 A.M. Dept. 9-The Honorable Nathan D. Ide

Motion: Demurrer Tentative Ruling: To overrule the demurrer to the second, third, fourth, fifth, and sixth causes of action; to sustain the demurrer with leave to amend as to the first and seventh causes of action; Plaintiff shall have ten (10) days to file an amended complaint.

Facts In this matter, Plaintiff sues Defendant for five violations of the Homeowner's Bill of Rights, unfair business practices under Business and Professions Code section 17200 and for wrongful foreclosure.

Plaintiff alleges that, on or about July 24, 2018, Plaintiff obtained a mortgage loan memorialized by a deed of trust in the amount of $200,809 as to 615 North Helene Street, Tulare CA 93724 ("Subject Property"). (Complaint P.P. 1,10 - Ex. A.) The deed of trust was assigned September 19, 2024. (Complaint P.11 - Ex. B.)

Plaintiff further alleges he began to suffer from financial hardship at the end of 2024 and called Defendant at the end of January 2025 asking for help to avoid losing the Subject Property. (Complaint P.P.12, 13.) Plaintiff alleges Defendant "advised they could help and they would send him some documents to fill out in furtherance of a loan modification." (Complaint P.14.)

Plaintiff alleges nothing was sent from Defendant and instead, on March 28, 2025, a Notice of Default and Election to Sell Under a Deed of Trust was recorded in the Tulare County. (Complaint P.P.15, 16 - Ex. C.)

Plaintiff further alleges he "requested assistance several times prior to the NOD being recorded and no paperwork for him to fill out was every provided. Nor was a single point of contact ever assigned to him" and "every time he called [Defendant] they transferred him to different people within the loss mitigation department and every person he spoke with told him he simply needed to fill out the paperwork because his numbers (given verbally) appeared to qualify him for a loan modification." (Complaint P.P.17, 18.) Plaintiff alleges again nothing was sent to him. (Complaint P.18.)

Further, Plaintiff pleads that on July 8, 2025, a Notice of Trustee's Sale was recorded. (Complaint P.19 - Ex. D.) On or about October 10, 2025, Plaintiff alleges he "submitted a complete loan modification based on a material change in his financial condition request to DEFENDANTS and requested the appointment of a Single Point of Contact ("SPOC") to assist him in the loan modification process" and never received a denial or other determination as to the modification application. (Complaint P.P.20, 21.) Plaintiff alleges he was never advised the sale was moving forward. (Complaint P.22.)

On these facts, Plaintiff alleges violations of Civil Code sections 2923.5, 2923.7, 2924.9, 2923.6(c), and 2923.6(e). Further, that these violations, and other allegations, support a cause of action under Business and Professions Code section 17200. Finally, that Defendant engage in wrongful foreclosure.

Defendant demurrers to each cause of action, and seeks judicial notice of the recorded documents. Defendant argues Plaintiff's own allegations demonstrate no violation of the HBOR and that Plaintiff is not entitled to injunctive relief. Further, that no unlawful, unfair or fraudulent act is pled to support of the UCL claim. Finally, that Plaintiff failed to allege tender and that Defendant was entitled to foreclosure based on Plaintiff's default.

In opposition, Plaintiff notes that while the Court may take judicial notice of the recorded documents, it cannot accept the truth of the matters asserted therein and therefore each HBOR cause of action is sufficiently pled. Further, that these HBOR violations support the UCL claim and that Plaintiff has alleged tender was excused.

Authority and Analysis The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.) It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins.

Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip.

Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Uncertainty "[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty "because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The Court, under this standard, does not find the complaint uncertain.

Judicial Notice Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22 recognizes the Court may take judicial notice of existence of document in court file, but can only take judicial notice of truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. Here, the recorded documents, including a declaration by Defendant, are subject to judicial notice but the Court cannot accept the truth of the facts contained therein.

HBOR and Injunctive Relief Defendant argues first that Plaintiff is not entitled to injunctive relief on the HBOR claims. However, demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 ["A demurrer must dispose of an entire cause of action to be sustained."].) Therefore, the Court will evaluate the arguments as to each cause of action and sustain or overrule the demurrer to each cause of action as a whole.

First Cause of Action - Civil Code section 2923.5 Civil Code section 2923.5 states that a mortgage servicer "...shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure" before recording a notice of default and prescribes a certain manner for doing so. (Civ. Code, Sec. 2923.5.) Further, "[a] notice of default...shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower..., or that no contact was required." (Civ.

Code, Sec. 2923.5, subd. (b).) Civil Code section 2923.5 states that a notice of default may be recorded when a mortgage servicer has not contacted a borrower "provided that the failure to contact the borrower occurred despite the due diligence of the mortgage servicer." (Civ. Code, Sec. 2923.5, subd. (e).) The section provides different definitions of "due diligence" to satisfy these requirements. (Civ. Code, Sec. 2923.5, subd. (e)(1)-(5).) "After a trustee's deed upon sale has been recorded, a mortgage servicer...shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.5 ... where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale." (Civ.

Code, Sec. 2924.19, subd. (b).)

Here, the Court agrees that Defendant's declaration in the recorded document cannot rebut the allegation that Plaintiff received no mail or messages and otherwise refused to communicate with Plaintiff. However, as noted above Civil Codes section 2923.5(e)(1)-(5) provides various methods of satisfying due diligence. The complaint fails to address these alternative due diligence means, as the complaint only alleges a failure to communicate and/or contact Plaintiff. Specifically, the Court notes the due diligence requirement appears satisfied via posting a prominent link on a website that does not appear to involve communicating, refusing to communicate or attempting to contact Plaintiff. (Civ.

Code Sec.2923.5(e)(5).) As such, the Court sustains the demurrer to the first cause of action with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint as to this cause of action.

Second Cause of Action - Civil Code section 2923.7 Civil Code section 2923.7 requires that, "[w]hen a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact." (Civ. Code, Sec. 2923.7(a).) The single point of contact is responsible for "1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options. (2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application. (3) Having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative. (4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any. (5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary." (Civ.

Code, Sec. 2923.7, subd. (b).)

Defendant demurrers on the basis that the allegations lack specificity. The allegations include that Plaintiff submitted a complete loan modification and requested the single point of contact on or about October 10, 2025. (Complaint P.29.) Plaintiff alleges, more generally, that as of March 28, 2025 (the date of recording as to the notice of default) he requested assistance several times prior thereto and no single point of contact was assigned. (Complaint P.17.) Paragraph 18 alleges he was transferred to different persons in the loss mitigation department. (Complaint P.18.) "We adopt instead the view stated by federal district courts that have held the phrase ' "upon request" simply indicates when the SPOC must be assigned (i.e., upon the borrower's request for a foreclosure prevention alternative, as opposed to the borrower's selection of a foreclosure prevention alternative).'" (Morris v.

JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 301.) "'The purpose of the act that added this section is to ensure that, as part of the nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower's mortgage servicer, such as loan modifications or other alternatives to foreclosure.'" (Id. at 305.)

As such, the Court finds the allegations that Plaintiff requested the single point of contact as alleged in paragraphs 17 and 18 and that none was assigned thereto sufficient under Morris. The statutory remedies available require a material violation, defined as "...one that affected the borrower's loan obligations, disrupted the borrower's loan modification process, or otherwise harmed the borrower.' [Citation.]" (Id. at 296-297, 304.) Plaintiff's theory appears to be that the failure to assign the contact point resulted in a delay of Plaintiff's loan modification application process, which is sufficient under the above.

While Defendant notes the single point of contact can consist of "an individual or team of personnel," the Court does not find that the allegation "every time he called PL they transferred him to different people within the loss mitigation department and every person he spoke with told him he simply needed to fill out the paperwork" indicates that a single point of contact team was assigned to Plaintiff. As such, the Court overrules the demurrer to the second cause of action.

Third Cause of Action - Civil Code section 2924.9 Civil Code section 2934.9 requires that, "within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclosure prevention alternatives shall send a written communication to the borrower that includes all of the following information: (1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives. (2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative. (3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative." (Civ. Code, Sec. 2924.9, subd. (a).)

Here, Plaintiff alleges the notice of default was recorded March 28, 2025 and that Plaintiff received no mail or messages as to alternatives prior to foreclosure. (Complaint P.34, 35.) Defendant argues that, despite this allegation, Plaintiff thereafter spoke with Defendant's representative and eventually submitted a loan modification application in October 2025 and therefore no material violation has occurred. Further, Defendant cites to Hernandez v. Shellpoint Mortg. Servicing (C.D.Cal. Feb. 5, 2026, No. 5:25-cv-03431-AH-MARX) 2026 U.S.Dist.LEXIS 24600, at *12-13 which states: "Given that Plaintiffs were able to submit a completed loan modification application three days after the Subject NOD was recorded, it is unclear from the Complaint how Defendants' alleged failure to communicate to Plaintiffs about alternatives within five days materially harmed Plaintiffs.

For instance, Plaintiffs do not plead what additional or different actions they would have taken had they received such information within five days. [*13] Cf. Warren, 671 F. Supp. 3d at 1045 (finding Plaintiff plausibly pleaded a material violation of section 2924.9 where Plaintiff alleged that if he had received such communications, "he would have taken action to avoid the foreclosure of the subject property with other lending sources")."

Here, Plaintiff alleges he was unable to complete the loan modification application until approximately 6 months after the notice of default was recorded and therefore, the Court does not find Hernandez completely applicable here. The complaint further pleads "If PLAINTIFF had received such contact and communication, she would have taken action to avoid the foreclosure of the Subject Property with other lending sources." (Complaint P.27.) Therefore, the Court overrules the demurrer to the third cause of action.

Fourth Cause of Action - Civil Code section 2923.6(c) Under Civil Code Sec. 2923.6(c), "If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs: (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired. (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification."

Plaintiff alleges the Property was sold March 5, 2026. (Complaint P.32.) Further. Plaintiff alleges that on October 10, 2025, he submitted a complete loan modification application. (Complaint P.30.) Further, that Plaintiff never received a denial or other determination as to the application. (Complaint P.21.) The Court does not find the allegation that Defendant, prior to the October 2025 submission of the modification application, failed to provide a single point of contact and thereby delayed or otherwise impeded Plaintiff's prior loan modification efforts are contradictory.

Plaintiff has sufficiently alleged the submission of a completed loan application, that no decision was made as to the application and that the foreclosure sale proceeded despite the pending application. This appears sufficient under this cause of action. Therefore, the Court overrules the demurrer to the fourth cause of action.

Fifth Cause of Action - Civil Code section 2923.6(e) Civil Code section 2923.6, subd. (e) provides: "If the borrower's application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee's sale until the later of: (1) Thirty-one days after the borrower is notified in writing of the denial. (2) If the borrower appeals the denial pursuant to subdivision (d), the later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fails to timely submit the first payment or otherwise breaches the terms of the offer."

Here, Defendant argues, in similar fashion to the above, that Plaintiff's allegations are contradictory as to the completion of a loan modification application in October 2025 (Complaint P.36) and that Plaintiff alleges the application was incomplete. (Complaint P.31 - Page 5.) For the same reasons as above, the Court does not find this pleading contradictory. Plaintiff alleges a complete loan modification application submitted in October 2025, that no response to the application was provided, and that the Property was sold without the opportunity to appeal the denial. This appears sufficient to allege a violation of subsection (e) and the Court overrules the demurrer to this cause of action.

Sixth Cause of Action - Business and Professions Code section 17200 To prevail on this claim, the Plaintiff must prove the Defendants engaged in an "unlawful, unfair, or fraudulent business act or practice." (Bus. & Prof. Code, Sec. 17200.) This section "'borrows' violations from other laws by making them independently actionable as unfair competitive practices." (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143, A "violation of another law is a predicate for stating a cause of action under the UCL's unlawful prong." (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) If there is no violation of another law, defendant cannot be held liable for an "unlawful" business practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610

Here, as the Court has found sufficient violations above of the HBOR as to the second, third, fourth and fifth causes of action which constitute unlawful acts or practices. As such, the Court overrules the demurrer to the sixth cause of action.

Seventh Cause of Action - Wrongful Foreclosure The elements of wrongful foreclosure are "(1) the defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the secured indebtedness or was excused from tendering. [Citation.]" (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062; See also Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 408.)

Here, Defendant argues that Plaintiff has failed to allege he tendered the amount due. However, Plaintiff notes the allegation that "PLAINTIFF is excused from the tender requirement because of DEFENDANTS violations of Civ. Code Sec.2923 and 2924 as stated herein." (Complaint P.60.) Plaintiff cites to Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062 which notes: "Recognized exceptions to the tender rule include when (1) the underlying debt is void, (2) the foreclosure sale or trustee's deed is void on its face, (3) a counterclaim offsets the amount due, (4) specific circumstances make it inequitable to enforce the debt against the party challenging the sale, or (5) the foreclosure sale has not yet occurred."

Plaintiff seeks to apply the first exception, that the above stated violation of sections 2923 and 2924 void the debt. The Court's ruling above has found sufficient allegations as to violations of 2923.7, 2924.9, 2923.6(c), and 2923.6(e). However, the Court lacks a connection between violations of these sections, which appear to provide for, in some instances, monetary damages or injunctive relief, and the remedy of voiding the debt.

Plaintiff also cites to Barrionuevo v. Chase Bank, N.A. (N.D. Cal. 2012) 885 F.Supp.2d 964, 977, stating that tender is not required as to dual tracking claims. However, Barrionuevo indicates that the language of the trust deed determines "whether it contains "conclusive presumption language in the deed" regarding notice defects that would render the sale merely voidable as opposed to void." (Id. at 971.) Specifically, Barrionuevo notes: "As was explained in Tamburri, when a notice defect is at issue, it is not the extent of the defect that is determinative.

Rather, "what seems to be determinative" is whether the deed of trust contains a provision providing for a conclusive presumption of regularity of sale. Little, 188 Cal. App. 3d at 1359, 233 Cal. Rptr. 923. "Where there has been a notice defect and no conclusive presumption language in the deed, the sale has been held void." Id. In contrast, "[w]here there has been a notice defect and conclusive presumption language in a deed, courts have characterized the sales as 'voidable.'" Id. Tamburri, 2011 U.S.

Dist. LEXIS 144442, 2011 WL 6294472 at *5. In Little, the court considered a deed provision stating "[t]he recitals in such Deed of any matters, proceedings and facts shall be conclusive proof of the truthfulness and regularity thereof" to be conclusive presumption language. Little, at 1360. In this case, the Barrionuevos' deed of trust provides no such conclusive presumption language. Therefore, "the Court cannot conclude, at least at this juncture, that the sale is merely voidable wherein tender would be required."

Ottolini v. Bank of America, No. C-11-0477 EMC, 2011 U.S. Dist. LEXIS 92900, 2011 WL 3652501, at *4 (N.D.Cal. Aug. 19, 2011); see also Tamburri, 2011 U.S. Dist. LEXIS 144442, 2011 WL 6294472 at *5." (Id. at 971.)

The Court lacks a sufficient allegation in the complaint as to whether the deed of trust contains language as in Little as to a conclusive presumption of the regularity of sale term and whether the alleged notice defects render the sale voidable or void. Therefore, the Court sustains the demurrer to the seventh cause of action with leave to amend as to the tender and excuse issues. Plaintiff shall have ten (10) days to file an amended complaint as to this cause of action.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Brambila, Leonor vs. Familia Partida, LLC, a California Limited Liability Company et al