In a 2-1 unpublished opinion, the California Fifth District Court of Appeal reversed an order of dismissal following the sustaining of a demurrer in a post-repossession notice of intent (“NOI”) class action, Tucoemas Federal Credit Union v. See (2012) 2012 WL 5867382. The credit union filed a deficiency action against the borrower following her default on a retail installment contract. The borrower answered and later filed a cross-complaint, alleging the NOI was defective because, among other grounds, “it failed to disclose the address of a third party to whom storage charges were to be paid …” (Id. at * 2.) The borrower attached a copy of the NOI as an exhibit to the cross-complaint. The NOI disclosed that that if the contract were reinstated or the vehicle redeemed, the vehicle would be returned to the borrower at Fresno Auto Dealers Auction and provided its address. A separate section of the NOI disclosed that storage fees were also payable to Fresno Auto Dealers Auction, but omitted any reference of its address. The creditor demurred to the cross-complaint, arguing the copy of the NOI attached to the cross-complaint demonstrated the NOI was compliant. The trial court sustained the demurrer, reasoning that NOI’s contents controlled over any inconsistent allegations in the cross-complaint and that the NOI sufficiently provided the borrower all the information necessary to cure her default. On appeal, the Fifth District reversed. The Court first found that the NOI’s contents were not binding on the borrower and hence the cross-complaint’s allegations could not be disregarded as inconsistent. After making that preliminary finding, the Court held the cross-complaint stated a cause of action as to whether the NOI properly disclosed the address of the auction to whom storage fees must be paid. (Id. at * 5-8.) Although the NOI provided the auction’s address for purposes of retrieving the vehicle after reinstatement or redemption, it did not affirmatively state the same address applied for purposes of paying the auction storage fees. Accordingly, the cross-complaint raised a factual question that could not be resolved on demurrer. The majority did not address whether the credit’s union’s disclosure was legally adequate assuming the evidence would later show that storage fees were to be paid to the same address at which the vehicle could be retrieved following reinstatement or redemption. (Id. at 7, n. 9.) On the other hand, Justice Poochigian reasoned in dissent that the cross-complaint’s bare allegation that the NOI did not repeat the auction’s address was insufficient to state a cause of action as a matter of law. Justice Poochigian noted that the cross-complaint never alleged the address provided for the auction was inaccurate or that a different address applied for purposes of paying storage fees than retrieving the vehicle. Accordingly, in Justicice Poochigian’s view, the borrower could not “overcome the undisputed fact that the address for Fresno Auto Dealers Auction is contained in the entirety of the documents received as the NOI.” For further information regarding this decision, contact Erik Kemp of the Firm’s San Francisco office at ek@severson.com