Dismissal Of Wrongful Foreclosure Action Reversed.

The appellate court reversed the sustaining of a demurrer to plaintiff’s complaint for wrongful foreclosure. In support of the demurrer, defendants sought judicial notice, which was granted, of the notice of default, including the attached declaration of someone named Samantha Jones, which stated the bank “tried with due diligence to contact [plaintiff] in accordance with California Civil Code Section 2923.5.” Plaintiff’s opposition to the demurrer argues she never spoke with Jones or heard any recordings from Jones or the bank, communicated with Jones or received any communication from Jones. The appellate court noted:  “Civil Code section 2923.5, requires not only that a declaration of compliance be attached to the notice of default, but that that the bank actually perform the underlying acts (i.e., contacting the borrower or attempting such contact with due diligence) that would constitute compliance. While judicial notice could be properly taken of the existence of Jones’ declaration, it could not be taken of the facts of compliance asserted in the declaration.” The court further pointed out that a demurrer is not the proper format for disposing of any evidentiary issues. The appeals court construed the allegations of the complaint broadly and concluded plaintiff stated a cause of action for wrongful foreclosure based on defendants’ noncompliance with section 2923.5. Intengan v. BAC Home Loans Servicing LP  (Cal. App. First Dist., Div. 5;  March 22, 2013) 214 Cal.App.4th 1047.