IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARK DEMUCHA et al.,
Plaintiffs and Appellants,
v.
WELLS FARGO HOME MORTGAGE INC.,
Defendant and Respondent.
-ooOoo-
This case presents a classic example of the longstanding rule that “in passing upon the question of the sufficiency or insufficiency of a complaint to state a cause of action, it is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true or untrue” as “[t]hat is always the ultimate question to be determined by the evidence upon a trial of the questions of fact.” (Colm v. Francis (1916) 30 Cal.App. 742, 752.)
The trial court dismissed this civil action after sustaining the demurrer of respondent Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. (Wells Fargo), to the first amended complaint of appellants Mark and Cheryl DeMucha. Appellants contended in the trial court, as they do on this appeal, that the allegations of their pleading were sufficient to survive demurrer. As we explain, we agree with appellants on all of their causes of action except the second (their attempt to state a cause of action for removal of a cloud on title) and the fourth (their attempt to state a cause of action for intentional infliction of emotional distress). We reverse the judgment, remand the matter to the trial court, and direct that court to overrule respondent’s demurrer as to all causes of action except the second and fourth.
[…]
[ipaper docId=59760112 access_key=key-1a4f4tltiqhl16077q4f height=600 width=600 /]
© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
Thank you for posting as you have so often where more education is emerging as to the whole mortgage / foreclosure situation which is clearly dire and in many ways frightening. Every time a court has to stop and really examine the situation is indeed as many say a “victory” for homeowners, at least for the time being.
But would you kindly comment on the following, which you of course can rephrase if you wish.
As long as original indebtedness is not challenged or held challengable – that is, fraud shown in origination – some alleged lender can always emerge down-line so that even ‘dismissal with prejudice’ against a particular claiming-creditor applies to that particular claiming-creditor. But not to possible successor claimants.
There must be (?) cases where no one was bound in the first place or the binding was satisfied etc.. Wouldn’t that ‘really go a long way showing there can be ‘dismissal with prejudice with finality, and home secured to the homeowner?
Thank you and best wishes, elders.in.foreclosure@gmail.com