A Bakersfield homeowner is taking on a bank, in a battle that could have sweeping implications for people facing foreclosure.
Mark Demucha wants Wells Fargo to prove it owns his home loan. And, if his lawsuit is successful, it could set a legal precedent that slows or even stops foreclosures across the state.
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.
Brian Burnett has signed mortgage documents using the job titles listed below during the approximate same period of time. All of these were notarized in Travis County, Texas, where IndyMac Mortgage Services is located. IndyMac Mortgage Services is now a division of One West Bank.
A certified signer for Mortgage electronic Registration Systems, Inc. was authorized to sign on behalf of the affiliated mortgage entity that employed him. Burnett, for example, would have been authorized to sign as an officer of MERS, as nominee for IndyMac Bank.
MERS signers were never authorized to sign on behalf of all other lenders.
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