Calif. Appeals Court: Trial Court Goofed In Early Dismissal Of Homeowner's Challenge To Bankster's F'closure Try; Booted Back Suit Gets 'Green Light'

In Bakersfield, California, KGET-TV Channel 17 reports:

• 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.



• "Filled out the same paperwork over and over again." Mark Demucha says all he wanted was to keep his house. "Sent it to them over and over again. I couldn't give you the exact time frame, but it's ridiculous," he said.

***

• Demucha turned to family friend Michael Finley who happens to be a lawyer. "A company that does not have a legal right to collect mortgage payments should not have the right to foreclose," said Finley.



• Now, in a case that could have far-reaching implications, Demucha and Finley say they have one simple request. "If they are going to take my house, I should be able to see they have a legal right to take it from me," said Demucha.



• "They come to me and want me to have every single piece of paper I was ever supposed to have. But, when I say 'hey where is my promissory note?' they look at me like I'm a thief." That's because Wells Fargo didn't loan Demucha the money to buy his house. Another company called CTX Mortgage, did.

***

• "Why should the bank not still be required to possess a single piece of paper that they are the right place to home the consumer should make the payments?"



• Earlier this month, a state appellate court agreed, overturning a Kern County judge's ruling that Wells Fargo could foreclose on the home. The case is headed back to our county where the same judge will have to decide if Wells Fargo can prove it legitimately holds title to the Demucha's home.

***

• "Wells Fargo essentially ignored them until the fifth district appellate court said Wells Fargo you can't ignore Mark and Sherry Demucha any more," said Finley. The appellate court ruling has arrived back here in Kern County but a hearing has not yet been scheduled.(1)

For more, see 17 News Investigation: Homeowner challenges bank.

For the ruling, see DeMucha v. Wells Fargo Home Mortgage Inc., No. F059476 (Cal. App. 5th Dist. July 5, 2011) (unpublished).

(1) The California appeals court begins its ruling by giving this lesson in 'Sustaining Demurrers 101" (in California, a demurrer is akin to, what courts in other states call, a motion to dismiss) which, hopefully, will help some judges avoid ordering premature dismissals of foreclosure challenges, no matter how anxious beleaguered, overworked, underpaid trial judges may be to move their presumably heavy caseloads along (bold text is my emphasis):

• 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.