California Court of Appeal

In a lawsuit to stop the foreclosure of plaintiff's home, alleging that it was initiated on behalf of an entity to which the deed of trust was never validly assigned, the trial court's sustainment of defendant's demurrer without leave to amend is affirmed where the causes of action for cancellation of instruments, foreclosure by entity lacking a beneficial interest, and declaratory relief fail: 1) the causes of action were "barred as a matter of law" because there is no recognized cause of action that allows a borrower to test the legal authority of the entity initiating nonjudicial foreclosure proceedings in a suit brought before the foreclosure sale occurs (a "preemptive action"); 2) plaintiff lacked standing; and 3) plaintiff's contention that defendant lacked authority to enforce the Deed of Trust was contradicted by matters subject to judicial notice.

Appellate Information

• Published 2016/05/09

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• HUMES

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• California Court of Appeal

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