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New Cases of Interest - November 5, 2013
Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75. In this action a borrower contended that their mortgage lender's nominee, MERS, didn't have the authority to act to execute the lender's interest including the right to foreclose, seeking to enjoin a nonjudicial foreclosure. The court of appeal disagreed, but the case may be limited to the facts and the nature of the pleading with the court holding that the borrowers could not presumptively challenge MERS authority to initiate foreclosure proceedings but were required to allege a specific factual basis for their claims. While there were some alleged foreclosure irregularities, the borrowers had not alleged any harm that flowed from those irregularities.
Cho v. Chang (2013) 219 Cal.App.4th 521. This is a SLAPP case. In this situation an employee sued a coworker for sexual harassment and related claims and the coworker filed a cross-complaint for defamation and intentional infliction of emotional distress. The trial court granted in part the motion to strike, striking those allegations which were protected and allowing the others to remain. The court of appeal affirmed noting that when a cause of action combines allegations of conduct that are protected with allegations of conduct that are not protected, the trial court may strike the allegations concerning the protected activity while allowing the unprotected conduct allegations to remain.
Aspiras v. Wells Fargo Bank (2013) 219 Cal.App.4th 248. A borrower brought a cause of action for fraud, negligent misrepresentation and violation of the unfair competition law against a bank alleging that the bank had induced them to provide various loan modification packages, but took no action on any of them and expecting that the bank was going to do something, the borrowers had allowed the property to be foreclosed upon and sold at a trustee sale, and that the borrowers were thereby damaged. The trial court dismissed the action with prejudice. The court of appeal affirmed, holding that the borrower's deficient pleading would not support the claims for fraud and negligent misrepresentation. Their allegations lacked the required specifics of who at the bank had made representations to them and what the authority of that person was to make representations on behalf of the bank. There was also no valid complaint under the unfair competition law because there was no allegation that the bank's actions offended a public policy tethered to an underlying constitutional, statutory or regulatory provision.