This project was made possible by a grant from the Office of the Attorney General of California, from the National Mortgage Fraud Settlement, to assist California consumers. September 2013 Newsletter The Import & Impact of Glaski v. Bank of America A month has passed since the California Court of Appeal handed down their decision in Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (2013). In that month, the opinion has been published and Bank of America’s petition for rehearing denied. Now binding on all California trial courts, the opinion has attracted much attention and praise in the foreclosure defense world. This article summarizes the court’s major findings, places the decision into the current legal landscape, and analyzes both its potential impact and its limitations. I. The Court’s Conclusions Ultimately, the court’s conclusions are rooted in two basic and related inquiries that clarify (and in some respects simplify) the “authority to foreclose” question in California, at least for the time being. First, does the borrower allege that the foreclosing party was not the beneficiary based on specific facts? Second, if borrower’s claim is based on a failed assignment, was the assignment void, or voidable? If borrowers can allege specific facts showing that the purported beneficiary derived their authority from a void assignment, their claims, under Glaski, may now survive the pleading stage in California courts. A. Alleging that the Assignment Granting the Beneficiary’s Power to Foreclose is Void, is a Specific, Factual Allegation and the Basis for a Valid Wrongful Foreclosure Claim The court divides wrongful foreclosure claims based on an authority to foreclose theory into two categories: 1) borrowers who allege, generally, that the foreclosing entity was not the “true beneficiary
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This project was made possible by a grant from the Office of the Attorney General of
California, from the National Mortgage Fraud Settlement, to assist California consumers.
September 2013 Newsletter
The Import & Impact of Glaski v. Bank of America
A month has passed since the California Court of Appeal handed
down their decision in Glaski v. Bank of America, N.A., 218 Cal. App.
4th 1079 (2013). In that month, the opinion has been published and
Bank of America’s petition for rehearing denied. Now binding on all
California trial courts, the opinion has attracted much attention and
praise in the foreclosure defense world. This article summarizes the
court’s major findings, places the decision into the current legal
landscape, and analyzes both its potential impact and its limitations.
I. The Court’s Conclusions
Ultimately, the court’s conclusions are rooted in two basic and
related inquiries that clarify (and in some respects simplify) the
“authority to foreclose” question in California, at least for the time
being. First, does the borrower allege that the foreclosing party was
not the beneficiary based on specific facts? Second, if borrower’s claim
is based on a failed assignment, was the assignment void, or voidable?
If borrowers can allege specific facts showing that the purported
beneficiary derived their authority from a void assignment, their
claims, under Glaski, may now survive the pleading stage in California
courts.
A. Alleging that the Assignment Granting the Beneficiary’s Power to
Foreclose is Void, is a Specific, Factual Allegation and the Basis for a
Valid Wrongful Foreclosure Claim
The court divides wrongful foreclosure claims based on an authority
to foreclose theory into two categories: 1) borrowers who allege,
generally, that the foreclosing entity was not the “true beneficiary
2
under the deed of trust;” and 2) borrowers who allege, with specific
facts, that the foreclosing entity was not the true beneficiary.1
Borrowers in the first category rarely make it past the pleading stage,
but borrowers in the second group may. In other words, it is not
enough to say “X is not the true beneficiary,” but it may be enough to
allege “X is not the true beneficiary because Y.” If “Y” is a specific,
factual allegation that shows the foreclosing entity did not have the
authority to foreclose, then the claim is viable.
The court then explained that “[o]ne basis for claiming that a
foreclosing party did not hold the deed of trust” is if the assignment
purportedly giving that party foreclosing power is void.2 The court did
not say that attacking a beneficiary’s assignment is the only way to
bring a wrongful foreclosure claim, only that this particular defect,
when alleged with specific facts, is enough to put the authority to
foreclose at issue. Glaski alleged that the assignment of his deed of
trust and note to the WaMu Securitized Trust was void because it
occurred after the trust’s closing date.
B. Standing: Void vs. Voidable Assignment
Many securitization-based wrongful foreclosure claims fail because
the borrowers do not have “standing” to challenge how their loan was
securitized.3 The Glaski court framed this issue simply, focusing on the
assignment: “When a borrower asserts an assignment was ineffective,
a question often arises about the borrower’s standing to challenge the
assignment of the loan (note and deed of trust) –an assignment to
which the borrower is not a party.”4 The court cites federal cases from
1 See Glaski v. Bank of Am., N.A., 218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d 449, 460
(2013). 2 Glaski, 160 Cal. Rptr. 3d at 461 (emphasis added). 3 See, e.g., Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 898-99 (D. Haw. 2011)
(“[C]ourts have uniformly rejected the argument that securitization of a mortgage
loan provides the mortgagor a cause of action.”); Junger v. Bank of Am., N.A., 2012
WL 603262, at *3 (C.D. Cal. Feb. 24, 2012) (“[P]laintiff lacks standing to challenge
the process by which his mortgage was (or was not) securitized because he is not a
party to the PSA.”); Bascos v. Fed. Home Loan Mortg. Corp., 2011 WL 3157063, at *6
(C.D. Cal. July 22, 2011) (“Plaintiff has no standing to challenge the validity of the
securitization of the loan as he is not an investor in of the loan trust.”). 4 Glaski, 160 Cal. Rptr. 3d at 461.
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other circuits,5 and a California Jurisprudence treatise to conclude, “a
borrower can challenge an assignment of his or her note and deed of
trust if the defect asserted would void the assignment.”6 California
courts have largely adopted a knee-jerk reaction to securitization
theories, throwing those claims out because the borrower is not a party
to, or third-party beneficiary of, the assignment agreement (the PSA in
most cases). The Glaski court broke with California precedent in
framing the issue as one of void versus voidable assignments, allowing
theories based on void assignments to survive pleading.
C. A Post-Closing Date Transfer to Trust Renders the Assignment Void
The court had thus far established: 1) Glaski’s attack on the
beneficiary’s assignment was specific enough that it went beyond a
general challenge foreclosing party’s right to foreclose; and 2)
generally, void assignments give a borrower standing to challenge the
loan’s securitization, even though the borrower was not a party to, or
third-party beneficiary of, the PSA. The court then analyzed whether
Glaski’s specific allegations, taken as true, would void the assignment,
giving him standing.
Like many mortgage loans, Glaski’s note and deed of trust were
sold (assigned) to a trust to be bundled with other mortgages, sliced up
and sold again. Through a subsequent FDIC takeover, acquisition, and
more assignments, defendant Bank of America either became the
“successor trustee” to the WaMu trust, or acquired the Glaski deed of
trust from JP Morgan, who bought all of WaMu’s assets from the
FDIC.7 Either way, the possible chains of title are broken because the
transfer from JP Morgan Chase to the WaMu Securitized Trust
occurred long after the closing date of the trust.8
But does a post-closing assignment to a trust render that
assignment void? To answer this question, the Glaski court analyzed
5 Id. (citing Reinagel v. Deutsche Bank Nat’l Trust Co., 722 F.3d 700, at *3 (5th Cir.
2013); Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 291 (1st Cir. 2013)). 6 Glaski, 160 Cal. Rptr. 3d at 461 (emphasis original). 7 Id. 8 Id. The WaMu trust, by its own terms, closed in 2005. Id. at 454. An assignment
recorded in 2008 “stated that JP Morgan transferred and assigned all beneficial
interest under the Glaski deed of trust [and note] to ‘LaSalle Bank NA as trustee for
WaMu [Securitized Trust].’”Id.
4
New York law, which, according to the pleadings, was controlling,9 to
conclude that an assignment transferred after a trust’s closing date is
void, rather than voidable.10
Glaski pled both threshold questions with the requisite specificity:
1) he alleged that Bank of America was not the beneficiary because the
assignment purporting to give it foreclosing power was invalid; and 2)
the assignment was void, not voidable, because the transfer to the
trust occurred after the trust’s closing date. The first point got him
past Gomes, and the second established his standing.
D. Tender
The court addressed the tender issue briefly, but it was still critical
to its ruling and again emphasizes the importance of distinguishing
whether a foreclosure sale is void or voidable. “Tender is not required
where the foreclosure sale is void, rather than voidable, such as when a
plaintiff proves that the entity lacked the authority to foreclose on the
property.”11 Because tender was not required, and because Glaski
stated a cognizable claim for wrongful foreclosure, the court reversed
the trial court’s dismissal of the complaint, and vacated and overruled
the order sustaining the Bank of America’s demurrer.
II. Placing Glaski in the California Foreclosure Landscape
A. Distinguishing Gomes: Specificity
Gomes was probably Glaski’s biggest hurdle. The court dedicated an
entire section of its opinion to differentiate its findings from those in
Gomes.12 The borrower in Gomes also brought a wrongful foreclosure
claim, alleging that the foreclosing entity, MERS, was not the
beneficiary’s nominee because the unknown beneficiary did not appoint
MERS as nominee, or give MERS authorization to foreclose.13 Unlike
9 Id. at 462. 10 Id. at 463 (“[T]he [WaMu trust] trustee’s attempt to accept a loan after the closing
date would be void as an act in contravention of the trust document.”). The closing
date is meant to protect the interests of the trust’s investors because it ensures
REMIC status, exempting investors from federal income tax (with respect to the
trust). Id. at 460 n.12, 463. 11 Id. at 466. 12 Glaski, 160 Cal. Rptr. 3d at 464. 13 Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1152 (2011).
5
Glaski, however, Gomes left his argument there. He did not take the
crucial step of explaining why MERS, who was listed as beneficiary
and nominee in the deed of trust,14 was not the true beneficiary.15
Rather, Gomes alleged that CC § 2924 afforded him the right to “test”
whether MERS had the beneficial interest before the sale took place.16
“Whether” is the key word and the difference between a Gomes claim
and a Glaski claim. Gomes wanted to investigate whether or not MERS
was the beneficiary. By contrast, Glaski alleged that Bank of America
was definitely not the beneficiary because the assignment giving them
beneficiary status was late to the trust, and therefore void. Gomes
asked, “who has the authority to foreclose?” whereas Glaski stated: “X
definitely does not have authority for these reasons . . . .” The Gomes
court found that CC § 2924 provides no right for borrowers to ask
“whether” the foreclosing party had the authority to do so.17
B. Distinguishing Nguyen: Void vs. Voidable
The Glaski court also had to reckon with Nguyen v. Calhoun, 105
Cal. App. 4th 428 (2003), which held that anything outside of the
foreclosure sale process cannot be used to challenge a presumably valid
and complete sale.18 Specifically, the court had to consider whether an
“ineffective transfer to the WaMu Securitized Trust” was an aspect of
the foreclosure sale, or if it fell outside of that sale and was therefore
irrelevant.19 Because the transfer to the trust was fundamental to
Bank of America’s authority to foreclose, and would void the sale itself,
the court decided that the trust transfer was part of the foreclosure
sale and a valid basis for challenging the foreclosure.20
C. Distinguishing Fontenot: Burden Shifting
14 Id. at 1151. 15 Instead, Gomes claimed he “‘d[id] not know the identity of the Note’s beneficial
owner,’” but that whoever “authorized” MERS to foreclose was not the beneficiary or
the beneficiary’s agent. Id. at 1152. He gave no specific reason for believing this,
other than that his loan was “sold . . . on the secondary mortgage market.” Id. 16 Id. 17 Id. at 1155 (“[Section 2924 does not] provide for a judicial action to determine
whether the person . . . foreclos[ing] . . . is indeed authorized.”). 18 See Nguyen v. Calhoun, 105 Cal. App. 4th 428, 441-42 (2003). 19 Glaski, 160 Cal. Rptr. 3d at 466. 20 Id.
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The Glaski opinion nowhere cites Fontenot v. Wells Fargo Bank, N.A., 198
Cal. App. 4th 256 (2011), but it is important to recognize why Glaski came out
differently from that case. As in Glaski, the borrower in Fontenot alleged that an
invalid assignment voided the entire foreclosure transaction.21
Unlike Glaski,
however, Fontenot based her invalid assignment theory, not on specific facts like
a late transfer to a trust, but on the theory that the assignor (MERS) had the
burden to prove the assignment was valid, and could not do so.22
The court
determined that MERS did not bear that burden because nothing in the statutory
scheme regulating nonjudicial foreclosures created that duty: “[A] nonjudicial
foreclosure sale is presumed to have been conducted regularly, and the burden of
proof rests with the party attempting to rebut this presumption.”23
If “‘the party
challenging the trustee’s sale [can] prove such irregularity and . . . overcome the
presumption of the sale’s regularity,’” that could shift the burden to defendant to
show a valid assignment.24
This is precisely what Glaski accomplished: by
pleading specifically that the assignment is void because of the late transfer to the
trust, Glaski rebutted the presumption of regularity, which is all he needed to do at
the pleading stage.
III. The Promise & Limits of Glaski
Glaski cannot be used to bolster every securitization theory. To
employ Glaski principles effectively, advocates should undertake the
same analysis the court did. First, does the borrower simply allege the
foreclosing party does not hold the beneficial interest in the deed of
trust (Gomes), or does the borrower allege that the foreclosing party
could not possibly be the rightful beneficiary because the assignment
giving them that interest was invalid? (Glaski). Second, do the
borrower’s allegations render the assignment void or voidable? If void,
then Glaski could lend support to both the borrower’s standing and
their wrongful foreclosure claim. The HBOR Collaborative will monitor
Glaski’s implications and influence as other courts interpret this
important decision.
21 See Fontenot v. Wells Fargo Bank, N.A., 198 Cal. App. 4th 256, 269 (2011). 22 See id. at 269-70. 23 Id. at 270. 24 Id. (quoting Melendrez v. D & I Inv., Inc., 127 Cal. App. 4th 1238, 1258 (2005)).
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Summaries of Recent Cases25
State Cases
Challenging the Authority to Foreclose Requires Specific
promissory estoppel, and contract claims while current on their
mortgage payments. The court nevertheless found these claims ripe
because borrower’s mortgage payments have increased by over $2,000,
an “economic injury sufficient to satisfy the ripeness inquiry.” Further,
delayed review would drive borrowers closer to foreclosure, and
defendant’s conduct has already occurred, even if the ultimate harm
has not.
22
Borrower’s claims were nevertheless time barred. Usually, statute of
limitations clocks begin when the conduct or transaction transpired.
Under the doctrine of delayed discovery, SOL clocks can toll until the
plaintiff discovered (or had reasonable opportunity to discover) the
misconduct. To take advantage of this tolling, a borrower must show:
1) when and how they made their discovery; and 2) why it was
unreasonable for them to discover the misconduct sooner. Here, the
court dismissed borrower’s claims with leave to amend because
borrowers made no attempt to assert the doctrine besides claiming
that that were unaware of defendant’s fraud until 2011 (the loan
originated in 2007 and they brought suit in 2013).
UCL standing requires a “distinct and palpable injury” that was
caused by the UCL violation. Here, borrower’s alleged injuries—
foreclosure risk, forgone opportunities to refinance, and hiring an
attorney and experts—are not particular enough to constitute UCL
standing. The court advised borrowers to plead the increased mortgage
payments as an injury.
Applying a HOLA preemption analysis to a national bank, this court
nevertheless found borrower’s UCL, fraud, and negligent
misrepresentation claims not preempted. Even though defendant’s
conduct arguably qualifies as “servicing,” and would therefore fall
under the purview of HOLA and OTS regulations, the specific type of
alleged misrepresentation here, promising to honestly and fairly
evaluate borrower’s modification application, “‘rel[ies] on the general
duty not to misrepresent material facts,’” and is not preempted.
To claim negligent misrepresentation, a borrower must show “some
type of legal relationship giving rise to a duty of care” between
themselves and their servicer. Generally, servicers do not owe a duty of
care to a borrower because their relationship does not exceed the usual
lender-borrower relationship. The court cites two exceptions to this
rule. First, if the servicer’s activities go beyond that usual relationship.
Second, if the servicer’s actions meet the conditions of a six-factor test
developed by the California Supreme Court. Here, borrowers’ claim
that defendant attempted to induce them into skipping mortgage
payments so defendant could eventually foreclose, meets both
exceptions. “[W]hen the lender takes action intended to induce a
borrower to enter into a particular loan transaction that is not only
23
intended to protect the lender - the lender’s activities have exceeded
those of a conventional lender.” Additionally, the court found the
dramatic increase in borrower’s mortgage payments a basis for
establishing a duty of care according to the six-factor California
Supreme Court test. The payments were a foreseeable and certain
financial strain, directly resulting from defendant’s
misrepresentations, for which defendant was morally to blame, and
finding a duty of care here is in the public’s interest. Even with this
duty of care though, borrowers need to amend their complaint to meet
the specificity requirements for negligent misrepresentation claims.
HOLA Preemption & Laws of General Applicability
Babb v. Wachovia Mortg., FSB, 2013 WL 3985001 (C.D. Cal. July
26, 2013): The Home Owner’s Loan Act and its attendant OTS
regulations govern federal savings associations. This court adopts the
view that a national bank may assert HOLA preemption defensively if
it purchased a loan that originated with a federal savings associated.
Other California federal district courts have focused on the conduct
being litigated, rather than loan origination, to determine whether
HOLA applies. Here though, Wells Fargo was allowed to assert HOLA
preemption because it acquired a loan originated by a FSA.27
Under HOLA, “state laws of general applicability . . . are preempted if
their enforcement would impact federal savings associations” in
relation to loan-related fees, disclosures and advertising, processing,
origination, or servicing. Here, borrowers based their promissory
estoppel claim on their servicer’s delayed response to the modification
application. The servicer’s actions, though, amounted to loan
“servicing,” expressly preempted under HOLA. Borrowers’ other claims
(breach of contract, breach of implied covenant of good faith and fair
dealing, negligence, negligent and intentional interference with
prospective economic advantage, fraud, and UCL), all based on state
laws of general applicability, were also preempted by HOLA and
27 Also, the court uses “Wachovia” to describe defendant, only noting in the
Background that Wachovia was “later acquired by Wells Fargo.” Even if this court
did adopt the conduct-related approach, it is unclear from the opinion whose
servicing conduct is at issue, Wells Fargo’s or Wachovia’s.
24
dismissed. The court equated the modification process with loan
servicing in every instance.
National Housing Act’s Servicing Standards & Federal
Jurisdiction
Smith v. Deutsche Bank Nat’l Trust, 2013 WL 3863947 (E.D. Cal.
July 24, 2013): Federal courts exercise original jurisdiction over “all
civil actions arising under [federal] law.” The “mere mention” of a
federal law does not, however, automatically bestow federal subject
matter jurisdiction. “A claim arises under federal law ‘only if it
involves a determination respecting the validity, construction, or effect
of such a law and the result of the action depends on that
determination.’” In other words, the federal question must be
“substantial.” While not dispositive, the lack of a private right of action
in the federal law often indicates that federal jurisdiction is
inappropriate. Here, defendant removed borrower’s original state case
to federal court based on a wrongful foreclosure claim, which stemmed
from a violation of the foreclosure prevention servicing requirements in
the National Housing Act. The court agreed that this was too tenuous
a thread on which to base jurisdiction. Neither the NHA nor its
foreclosure prevention provisions provide for a private right of action.
Further, the question before the court – a state based wrongful
foreclosure claim—does not delve into the “validity, construction, or
effect” of the NHA provisions. The case was remanded to the more
appropriate state court.
Breach of Contract and Promissory Estoppel Claims Based on
Modification Offer Letter
Loftis v. Homeward Residential, Inc., 2013 WL 4045808 (C.D. Cal.
June 11, 2013): To plead a breach of contract claim, borrowers must
allege a contract, their performance, defendant’s breach, and damages.
Here, defendant’s congratulatory letter, alerting borrowers of their
modification eligibility, constituted an express contract. The letter
instructed borrowers that they could “accept” the “offer” by (1)
completing and returning the agreement and (2) continuing to make
TPP payments. Borrowers performed by fulfilling these instructions
25
and defendant breached by refusing to modify, and instead, raising the
loan’s interest rate. Damages are often difficult to show, if borrower’s
default, not the servicer’s refusal to modify, led to foreclosure. Here
though, borrowers successfully pled damages by alleging they were
current on their mortgage and TPP payments before defendant raised
their interest rate. It was this raise (contract breach) that led to
increased monthly payments, eventual default, and foreclosure.
Defendant’s statute of frauds defense failed. The offer letter was
printed on defendant’s letterhead and signed, complying with the
statute of frauds: a writing “subscribed by the party to be charged.”
Defendant’s failure to return a signed copy to borrowers does not
change this analysis because the letter already memorialized the
contract in writing, and defendant intended to be bound by the
contract if the borrower fulfilled its requirements.
Borrower’s promissory estoppel claim survives for similar reasons.
First, the offer letter constitutes a clear and unambiguous promise: “if
you comply . . . we will modify your mortgage loan.” Borrowers alleged
lost refinancing, bankruptcy, and sale opportunities, and the court
agreed that this constituted reasonable, detrimental reliance.
Defendant argued that borrowers had time to pursue these
opportunities between the alleged breach and the foreclosure sale. The
court determined potential opportunities occurring after the breach do
not negate reliance.
Correction to August newsletter:
Caldwell v. Wells Fargo Bank, N.A., 2013 WL 3789808 (N.D. Cal.
July 16, 2013).
Original: CC § 2923.6(g) allows for resubmission of an application for
a first lien loan modification. Dual tracking protections therefore do
not protect a borrower who previously defaulted on a modification
plan. Here, the court found the borrower unlikely to prevail on the
merits (for purposes of a TRO request) of her dual tracking claim
despite an alleged change in income, because her default on her first
modification disqualified her from any further modification evaluation.
Revised: CC § 2923.6(g) provides dual-tracking protections for
resubmission of an application for a loan modification if there has been
26
a “material change in the borrower’s financial circumstances since the
date of the borrower’s previous application,” which has been
documented and submitted to the servicer. Here, the court determined
that Wells Fargo evaluated the borrower’s second loan modification
application and denied the application based on its internal policy of
denying second modifications to borrowers who previously defaulted on
a modification constitutes an “evaluation” under HBOR. The borrower
was deemed unlikely to prevail on the merits of her dual tracking
claim because of Wells Fargo’s proper denial under its internal
modification evaluation policy, not because her previous default
disqualified her from HBOR’s dual tracking protections on a second
modification evaluation. Under CC § 2923.6, she was entitled to a
second evaluation because of her change in financial circumstances.
She received an evaluation and was denied.
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COL?\iY OF SASTA CL\RA
APPELL \TE 1>1\'1510;';
THE BANK OF I\CW YORK. ~·tELLON,
Plaintiff and Respond~nt,
v.
VIDAL A. PRECIADO, ET AL
Ddendants and Appellants.
Case Nos. \-12 -:\1'-00 1360 nnd 1- 12 -:\1'-00 \)6\
ORDER
The appcJ! by appellants Vidal Preciado ("Prec iado"), Roland Luke ("Luke"), nnd
Kenm:th I-[cnderson ("Henderson") (collectively, "Appellants") from the un!lIwfu! detainer
judgments entered on M:lfCh Hi, 2012, C;l.mc on regubrly for hearing and was heard and
submitted on August 16. 2013. We hereby hold as follows:
I'roceduraill is tory
This is:m appeal from IWO related unlawful detainer actions. 1 Respondent '1l1e Bank of
New York Mellon ("Bank") is the owner of 1343 State Street, in Alviso, Cali fornia. On July
25,20 11 , B.lnk (lcquired title to this property (It a trustee's sale pursuant to foreclosure upon a
det'd of trusl. TIle property W(lS previously owned by Precbdo and occupied by Appellants.
, Sep:lfn:~ C1~fk 's TrJnscript~ "efe p:l:pnf~d for Case ~os . l-ll-CV -215285 ( A~t1e~1 :':0. , . I 2 ·AI'·QO 1 360) i!.' <:! I. I I·CV ·215 25 S ("preJI 1"0. 1·12·:\ N )O 13 61). I ~ order 10 avoid t o:lfusio:l. the C krk' s T rar\lcrip:.s in Ih~ rNO
elses " ill be eileJ as ""CT-2S6"" nrod ""CT-2SS.~ respectively. A sir.gle Repo:-.er·s Tra.""lsc:i;J: ("RT') "ns pre~ued as the trials took pbee al the SJme lime.
ORDER
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On September 1. 20 11. 113m: sen 'cd :1 wlinen nolice 1o Appellants to qui t and deli \'cr
possession ofl he property witlun three days, 30 d<! ys. or 90 days (depending 0 :1 thei: OCCU~3~Cy
SHlIUS).: After \\';!. iling more ,h.," 90 days, !Junk fi lt'd two unlowful detainer complaints il.g3inst
Appell :!.nl' on December 19, 20 11.3 TIle complaints incom e!l:- described the p:,open)' e..5 being
loc:llcd in San Jose instead of 1\1 \' iso. Appd l:1nts fi led indi\'idua] answers to the complaints.
:md Henderson nnd l uke also filed indivi du:!.I prejudgment cJ3ims of ri ght 10 po15ession,'
Trial on Ihc un!:\w(ul dClaint'T aCliom w:u h!:ld on March lei , 201 2, befo:e Li e
lionomhk- SOCt:.llcS Mnnouki:m.' That same day, It judgment was cnlered in eilch Cil5 C which
I\w:m.led B:mk possession of the property, rent, :md d3m3ges.' lIowe','(:r, \\ h~n th~ 5heriff
sOIl£ht 10 (':-. ::n l1C tltc wri t. it \\';15 disco\'t' red thaI the property w:n incorrectl y lis ted as ~ing in
I 51\n Jose. The sheriff was un:'Lble 10 cxecute the \\Ti t due to this c rro ~. :md Bank moved fo ~ an 12 J ,ex pJ.o"'te or-Jer 10 amend the judgment. On April 13 . 2012. the court enl~red 3.."1 ord~r a:ne::din g 13
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th~ juds~en:.s 10 change the propcny address to Alviso, '
AI Appellants' request. the court st3yed Appell:!.nts' evic tion (or ':0 enys. cp to !:'.d
limiterl civil cases on ~1nrch 16. 201 2. Accordingly. the judgments are apPcJ.b:'!e 10 ti:~
Appclb te Dh"ision.
1/1
: Stt CT .. 2!6. pp. 9 .. !2. CT ·283, pp 9· 12. I 5 : e CT .. 2!6. pp. 1· 12. cr·28~. PI' . 1· 12 • Sec CT .. 2!6. pp 20·25. JO .. J I. CT .. 2&8 , rp 10·N . 27·jO. 45"":6 ) 'On Ihl! Wlle e ly. i'!ecmlo lik d • "Ion l>ful filrec1osu:e =cl jo~ 'SJin il UJlIl ~lI J other c: r:~, Cl:l:J; . (See cr .. 2M. p 20C0 .. W)
StC CT·2!6. pp IjO· ! jO. CT .. 2&8, rp II J· &-I . · See CT .. 286, Pi" 1J2 .. 165. CT ·188. rp SH IS I Sce CT.2S6. P? 166 .. 167.Cr·2n . r? 119 .. 120. • Sn CT·156. p 23J . C T .. 2u' pp. 129·1J2 I' See C1 .286. pj). 26] .. 265. 270·212. CT·::!!. r p 161 .. t6-1. t69 .. 171 .
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OlllER
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On nppcal. Appellants make the following Ilrgumcnts:
I )
2)
J)
4)
111e Appci1n!c Division must conduct an independent review of the entire rt:conl pursuant to People II. Wende ;
"111e SCfyicc Process was liucrcd \\ith gross procedural irregulari ties";
Ihnk of Amctk'a did not produce evidence sufficient to prove that Lite forcdosurc sale was conducted in strict compliance with Civil (ode section 291..: :mc! thll ti tk was duly perfected; and
Uank improperly filed two SCp:l!2.IC unlawful detainer actions fa: the same propeny.
StantianlornCl"iew
In an appeal from an unlawful detainer jUdgment, "(wJc revicw the trial coun's findings
of (:lct to determine whether the)' arc sUfponed by subs1:mtial evidence," (Palm Properry
b ll"eS /l/l i!Jl/S, LLC v. rad~gar (2011) 19'; Cal.App.4th 1419. 1425.) To the extent the trial COUtt
drew conc:lusions of b w based upon its findings of fan, we review those conclusions of law d~
no\'o. (/d. at pp. 1425·1426.)
I' rop!!.'" Y. Wend e is In :tpp licable 10 Ch'il Appc:lls
Ap?ellants' first argument is that the Appellate Division must conduct an independent
rc\'icw oflhe entire record pursuant to People \'. Wendr (1979) 25 Cal.3d 436. Howe\'er. a
Wendt' review only upplics to criminal uppeals. (See In re Sade C. (1996) 13 Cal.4th 952, 98';')
In civil ::tppc31s, the nppellnte coens ue 110/ required to perform an u.'1lSs i5!cd stud\" of
thc record O~ rC\'jcw of the law relevant 10 a p:my's contentions on appeal. (Air CO!lriefl
TIME: 09:00:00 AM JUDICIAL OFFICER PRESIDING: Raymond Cadei
COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE
DATE: 08/22/2013 DEPT: 54
CLERK: D. AheeREPORTER/ERM: BAILIFF/COURT ATTENDANT: C. Chambers
CASE INIT.DATE: 02/29/2012CASE NO: 34-2012-00119643-CU-BC-GDSCASE TITLE: Lovelace vs. Nationstar Mortgage LLCCASE CATEGORY: Civil - Unlimited
EVENT ID/DOCUMENT ID: ,9864587EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOPMOVING PARTY: Nationstar Mortgage LLCCAUSAL DOCUMENT/DATE FILED: Demurrer, 04/15/2013
STOLOAPPEARANCES STOLO
StoloNature of Proceeding: Hearing on Demurrer to Second Amended Complaint TENTATIVE RULING Defendant Nationstar Mortgage LLC's ("Nationstar") demurrer to the second amended complaint("SAC") of Plaintiffs Jeff and Stacey Lovelace (the "Lovelaces") is OVERRULED.
This is a nonjudicial foreclosure case. The court previously sustained Nationstar's demurrers to theoriginal and first amended complaints. The SAC contains a single cause of action for breach of contract.The contract at issue is the Trial Period Plan ("TPP") attached to the SAC as Exhibit C. The Lovelaceshave alleged six different breaches of the TPP and have pleaded each breach as a separate "count"within their breach of contract cause of action. Nationstar demurs on grounds that the allegations fail tostate a cause of action.
In the first count, the Lovelaces allege that that the TPP required them to (1) execute and return theTPP, (2) make certain payments on a temporary basis, and (3) contact Nationstar at the conclusion ofthe trial period so that the latter could perform a "re-review" to determine the Lovelaces' eligibility for apermanent modification. (Nationstar's predecessor in interest--not Nationstar--is actually identified in theTPP, but the Lovelaces allege that Nationstar succeeded to its predecessor's benefits and obligations inthe TPP.) The Lovelaces further allege that they fully performed under the TPP, but that Nationstarfailed to perform the re-review needed to determine eligibility for a permanent modification. Becausethese allegations suffice to state a breach of contract cause of action, Nationstar's demurrer is overruled.
In overruling the demurrer, the court rejects Nationstar's argument that the Lovelaces have merelyalleged oral promises to modify their loan, which Nationstar argues are unenforceable given the statuteof frauds. (See Moving Memo. at 5:8-23 [citing CC § 2922].) Even if some of the Lovelaces' allegationsin the SAC depart from the terms of the TPP, and thus could be considered unenforceable oralpromises, the TPP contains written promises that satisfy the statute of frauds. The TPP provides:
"To accept this offer and enter into the Trial Period Modification, all borrowers must sign both copies ofthe enclosed Trial Period Plan. You must then return BOTH signed copies to us - along with your first
MINUTE ORDER DATE: 08/22/2013 Page 1 DEPT: 54 Calendar No.
CASE TITLE: Lovelace vs. Nationstar Mortgage LLC CASE NO: 34-2012-00119643-CU-BC-GDS
trial period payment in the amount of $2,800.00 - no later than 03/13/11."
(SAC, Exh. C.) The TPP at Exhibit C is signed, and the Lovelaces allege that they made the requiredpayments. The TPP further provides, "Once your final payment has been submitted, contact us for are-review of your modification." The Lovelaces alleges that they made contact when they made their lasttrial payment.
Given that the TPP is a signed, written instrument that imposed a duty upon Nationstar to conduct are-review of the Lovelaces' eligibility at the end of the trial period, Nartionstar's argument that the allegedpromises are unenforceable under the statute of frauds is unpersuasive.
In rejecting Nationstar's statute-of-frauds argument, the court notes Nationstar's argument in the Replythat some of the terms that the Lovelaces allege are part of the TPP are found in a letter to which theTPP is attached. Thus, reasons Nationstar, promises appearing in the letter are not part of the TPP andcannot be used to overcome the demurrer. The court disagrees because the letter can be construed toconstitute a part of and/or explain the TPP.
The letter and accompanying document headed "TRIAL PERIOD PLAN/MODIFICATION AGREEMENT"are numbered sequentially "1" through "4." The final page, where the Lovelaces were required toprovide signatures, contains a header with the words "Page Three" and the words "FORBEARANCEAGREEMENT." Thus, exactly how the letter and attachments interrelate is somewhat ambiguous. Inaddition, the court notes in this regard that the attachment does not contain an integration clause.
Moreover, the letter arguably explains terms in the attachment itself. Thus, for example, where theattachment states that a permanent modification would be forwarded "[i]f/[o]nce we are able to finalizeyour modified loan terms," the letter directed the Lovelaces to contact Nationstar for re-review at the endof the trial period and provided that the trial loan payments "[we]re an estimate of what your payment(s)will be IF we are able to modify your loan under the terms of the program." Read together, theseprovisions could be construed to require the Lovelaces to trigger the re-review, at which time Nationstarwould determine whether the Lovelaces qualified for a permanent modification under applicable programguidelines.
Suffice it to say that, at this point in the case, the court cannot conclude as a matter of law that the letterplays no role in establishing the terms of the TPP. Thus, the court rejects Natonstar's corollaryargument that the parol evidence bar precludes reference to the letter.
Likewise, the court rejects Nationstar's argument that the written promise to conduct a re-review canonly be construed as an "agreement to agree in the future." (Moving Memo. at 6:8-16.) The TPP can beconstrued to obligate Nationstar to perform a re-review to determine whether the Lovelaces qualified fora permanent loan modification. (See SAC, Exh. C at 1 ["You are eligible for the [TPP...¶...] The monthlytrial period payments...are an estimate of what your payment(s) will be IF we are able to modify yourloan under the terms of the program"] [ellipses added].) Thus, although the TPP does not represent anagreement that the Lovelaces would qualify for a permanent modification, it can be construed torepresent an agreement that Nationstar would perform the re-review to determine whether the Lovelacesqualified for a permanent modification under program guidelines. Because such a construction does notreduce the TPP to an agreement to agree in the future, Nationstar's contrary argument is unavailing.
Next, Nationstar argues that the demurrer should be sustained because the written TPP was not basedupon new legal consideration. (See Moving Memo. at 6:18-7:2.) The Lovelaces, however, allege thatthey expended time to submit financial documentation in order to obtain the TPP. (See SAC, ¶ 47.) TheTPP can be construed to support this allegation. (See SAC, Exh. C at ["The monthly trial periodpayments are based on the income information that you previously provided"].) At least one court has
MINUTE ORDER DATE: 08/22/2013 Page 2 DEPT: 54 Calendar No.
CASE TITLE: Lovelace vs. Nationstar Mortgage LLC CASE NO: 34-2012-00119643-CU-BC-GDS
held that, in the context of a trial loan modification, time and energy expended to submit financialdocumentation is consideration sufficient to support a breach of contract cause of action. (See Ansanelliv. JP Morgan Chase Bank, N.A. (C.D. Cal., Mar. 28, 2011) 2011 U.S. Dist. LEXIS 32350, at *9-11 [citingCalifornia cases].) Given the Lovelaces' allegation that they expended time and energy to theirdetriment, the court rejects Nationstar's "no new consideration" argument.
Next, Nationstar argues that the law does not require them to offer a permanent loan modification. Thecourt need not reach this issue because the Lovelaces have pleaded a breach of contract cause ofaction based on Nationstar's alleged failure to re-review their eligibility for a permanent modification.Whether that re-review would have resulted in the Lovelaces' qualification for a permanent modificationunder applicable guidelines involves factual issues that the court cannot currently decide. The factremains, however, that the Lovelaces have alleged a promise that Nationstar did not perform and whichdeprived the Lovelaces of an opportunity to qualify for a permanent modification. Liberally construingthese allegations, as the court must on demurrer, the Lovelaces have stated a breach of contract causeof action.
The court notes that it must overrule Nationstar's demurrer if the allegations state a cause of action onany theory. Although the Lovelaces have formatted the SAC into separate counts, each count is merelya portion of a single cause of action for breach of contract. Because the first count based upon thealleged failure to conduct the re-review states a cause of action, it is irrelevant whether other counts alsostate causes of action. Indeed, the court cannot sustain a demurrer to a mere count or other portion of acause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) If Nationstar wishedto eliminate discrete counts in the SAC, it was required to file a motion to strike, not a demurrer. (Id. at1682-1683.)
Nationstar argues next that the demurrer should be sustained because the Lovelaces have not allegeddamages resulting from any breach. As previously discussed, the Lovelaces have alleged detriment inthe form of lost time and energy associated with the submission of financial records. Absent authority forthe proposition that such detriment cannot constitute damage as a matter of law, the court rejectsNationstar's no-damage argument.
Finally, Nationstar argues that the demurrer should be sustained because the Lovelaces impermissiblyadded co-defendants without leave of court. The Lovelaces counter that they were required to name thenew defendants as indispensable parties. Whether or not the Lovelaces were required to obtain leave ofcourt to add the new defendants to the SAC, the court is not persuaded that any failure to do so entitlesNationstar to an order sustaining a demurrer. Nationstar has no evident standing to demur on behalf ofthe newly named defendants. Moreover, it is unclear that the allegations relative to the newly nameddefendants bear upon the question whether the Lovelaces have stated a cause of action againstNationstar. And to the extent Nationstar wished to strike allegations directed against newly nameddefendants as improper, it was required to file a motion to strike not a demurrer. Accordingly, theallegations directed at newly named defendants do not lead the court to sustain Nationstar's demurrer.
Nationstar's request for judicial notice of recorded land documents is UNOPPOSED and GRANTED. Intaking judicial notice of these documents, the court accepts the fact of their existence, not the truth oftheir contents. (Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)
Counsel are advised that the Sacramento County Superior Court's Local Rules were revised andrenumbered as of 01/01/13. When giving notice of the court's tentative ruling system, counsel shouldcite Local Rule 1.06, not former Local Rule 3.04.
Nationstar is directed to file its answer no later than September 3, 2013.
MINUTE ORDER DATE: 08/22/2013 Page 3 DEPT: 54 Calendar No.
CASE TITLE: Lovelace vs. Nationstar Mortgage LLC CASE NO: 34-2012-00119643-CU-BC-GDS
The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice isrequired.
COURT RULING There being no request for oral argument, the Court affirmed the tentative ruling.
STOLO
MINUTE ORDER DATE: 08/22/2013 Page 4 DEPT: 54 Calendar No.
MINUTE ORDER DATE: 08/22/2013 Page 4 DEPT: 54 Calendar No.
TIME: 09:00:00 AM JUDICIAL OFFICER PRESIDING: Raymond Cadei
COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE
DATE: 08/19/2013 DEPT: 54
CLERK: D. Ahee, K. PratchenREPORTER/ERM: S. Adams CSR# 12554BAILIFF/COURT ATTENDANT: C. Chambers
CASE INIT.DATE: 06/07/2013CASE NO: 34-2013-00144866-CU-WE-GDSCASE TITLE: Rogers vs. OneWest Bank FSBCASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Preliminary Injunction
STOLOAPPEARANCES STOLOAldon L Bolanos, counsel, present for Plaintiff(s).Deanna Rogers, Plaintiff is present. Walter Dauterman, counsel, present for the Plaintiff.Elizabeth Rogers was present.Tiffany Rochet, counsel, present telephonically for the Defendant.
StoloNature of Proceeding: TRO OSC RE: Preliminary Injunction TENTATIVE RULING Plaintiff Deanne Rogers' motion for preliminary injunction is GRANTED.
Plaintiff moves for an injunction preventing Defendant OneWest Bank FSB or its agents from taking anyaction to sell, transfer, encumber, or otherwise interfere in any manner whatsoever to her title to herhome at 8340 Linderhof Way, Sacramento, CA 95828.
This is an action for violation of the California Homeowner Bill of Rights (Civ. Code §§2923.6 and2923.7.) Plaintiff alleges that violated the Homeowner Bill of Rights by dual-tracking her into foreclosurewith multiple points of contact.
CCP Section 527 generally authorizes a court to enter a preliminary injunction. "To obtain a preliminaryinjunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harmthat it will suffer if an injunction is not issued pending an adjudication of the merits. Past Californiadecisions further establish that, as a general matter, the question whether a preliminary injunction shouldbe granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits,and (2) the relative balance of harms that is likely to result from the granting or denial of interiminjunctive relief." (White v. Davis (2003) 30 Cal.4th 528, 554.)
"[T]he party seeking the injunction must present sufficient evidentiary facts to establish a likelihood that itwill prevail." (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Board (1994) 23Cal.App.4th 1459, 1478.) In support of her motion, Plaintiff presents evidence that on April 15, 2013 shecontacted Defendant regarding a possible loan modification. (Declaration of Deanna Rogers ("RogersDeclaration"), ¶ 3.) On April 23, 2013, Plaintiff received a Residential Mortgage Assistance ("RMA")
MINUTE ORDER DATE: 08/19/2013 Page 1 DEPT: 54 Calendar No.
CASE TITLE: Rogers vs. OneWest Bank FSB CASE NO: 34-2013-00144866-CU-WE-GDS
package from Defendant. (Id., Ex. 1.) Plaintiff sent a completed package on May 6, 2013. (Id., ¶4, Ex.2.) On May 10th, John from OneWest called and left Plaintiff a voicemail indicating that he would be thesingle point of contact and that the application was being processed. (Id. ¶5.) Plaintiff attempted toreturn John's call on multiple occasions, but her call was not returned. (Id.) On May 29, 2013, Plaintifffound the Notice of Trustee's sale posted to her door. (Id. ¶6.) In response, Plaintiff phoned Defendantsand spoke with Brian Fearon who indicated that he would be the single point of contact and that her loanwas being processed and no further documents were required. (Id. ¶ 7.) Mr. Fearon refused to considerpostponing the Trustee's Sale. (Id.) On June 5, 2013, Plaintiff called Defendant to check on the statusof her application. She spoke with "Donita" who indicated that she was the single point of contact andthat no additional paperwork would be required. (Id. ¶8.) Plaintiff later received a call from Donitarequesting that she resubmit her information directly to the underwriter. (Id. ¶9.) Plaintiff has notreceived any notification that her loan modification had been denied or rejected. (Id. ¶ 11.)
Plaintiff argues that Defendant's conduct violated various provisions of the recently-enacted HomeownerBill of Rights. Plaintiff contends that Civil Code §2923.6(c) prohibits a lender from recording a notice ofdefault or notice of sale, or conducting a trustee's sale while a loan modification application is pending. Alender must make a written determination that the borrower is not eligible for a loan modification before itmay proceed with the foreclosure process. (Civil Code §2923.6(c)(1).) Plaintiff also argues thatDefendant violated the "single point of contact" rule which provides that "upon request from a borrowerwho requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish asingle point of contact and provide to the borrower one or more direct means of communication with thesingle point of contact." (Civ. Code §2923.7(a).)
Civ. Code §2923.6
In opposition, Defendant argues that it did not receive Plaintiff's RMA by May 28, 2013 (day of the Noticeof Trustee's Sale was recorded.) Defendant correctly notes that the RMA package attached as Exhibit 2to Plaintiff's declaration is not signed or dated. (See Rogers Declaration, Ex. 2.) Plaintiff's declarationstates that she mailed the RMA on May 6, 2013.
Defendant further argues that in November 2012, Plaintiff applied for, but was denied a HAMP loanmodification because she had insufficient income to qualify for the modification. (Declaration of CharlesBoyle ("Boyle Decl."), ¶ 8.) Plaintiff's HAMP application was denied in April 2013. (Id. ¶ 9.) Accordingto Defendant, pursuant to Civ. Code §2923.6(g), it was not obligated to re-review Plaintiff for a loanmodification without sufficient showing that Plaintiff's financial condition changed since her HAMP denial.Civ. Code §2923.6(g) provides
In order to minimize the risk of borrowers submitting multiple applications for first lien loan modificationsfor the purpose of delay, the mortgage servicer shall not be obligated to evaluate applications fromborrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lienloan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity tobe evaluated consistent with the requirements of this section, unless there has been a material changein the borrower's financial circumstances since the date of the borrower's previous application and thatchange is documented by the borrower and submitted to the mortgage servicer.
(Civ. Code §2923.6(g).)
In reply, Plaintiff argues that Civ. Code §2923.6(g) does not apply here because the Homeowners' Bill ofRights does not apply retroactively to a 2012 loan modification request. While the Homeowners' Bill ofRight was effective January 1, 2013, the Court is not convinced that the retroactivity doctrine applieshere. (See e.g. Michael J. Weber Living Trust v. Wells Fargo Bank, N.A. (N.D. Cal. Mar. 25, 2013) 2013U.S. Dist. LEXIS 41797, *11-12 [because Plaintiff had not demonstrated that there was a material
MINUTE ORDER DATE: 08/19/2013 Page 2 DEPT: 54 Calendar No.
CASE TITLE: Rogers vs. OneWest Bank FSB CASE NO: 34-2013-00144866-CU-WE-GDS
change in his financial circumstances since his last denial in June 2012, Plaintiff had not demonstratedthat it is likely to succeed on its Homeowners' Bill of Rights causes of action.].) Moreover, as draftedCiv. Code §2923.6(g) applies to evaluations made prior to January 1, 2013.
Given the above, for the purposes of this motion only, the Court finds that Plaintiff has not shown alikelihood of prevailing on her Civ. Code §2923.6 cause of action.
Civ. Code §2923.7
In opposition, Defendant argues that it assigned Ben Work as Plaintiff's single point of contact and "loancounselor" as noted in Defendant's letters sent on May 31, June 6, June 14 and June 25. (See BoyleDecl., ¶ 12.) According to Defendant, Plaintiff concedes that she took it upon herself to contact variousrepresentatives at OneWest before she was assigned a single point of contact. (Opposition, 4:28-5:1.)
"The single point of contact provision. . . is intended to prevent borrowers from being given therunaround, being told one thing by one bank employee while something entirely different is beingpursued by another. Under the legislation, the single point of contact must be responsible for, amongother things, "[h]aving access to current information and personnel sufficient to timely, accurately, andadequately inform the borrower of the current status of" his loan modification request and "[h]avingaccess to individuals with the ability and authority to stop foreclosure proceedings when necessary."(Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 904-905 [internal citations omitted].)
In reply, Plaintiff proffers a May 20, 2013 email from Brian Fearon from OneWest seeking updatedinformation on Plaintiff's application. (Reply Declaration of Deanna Rogers, Ex. 1.) Plaintiff responded,and on May 29, 2013, Mr. Fearon directed Plaintiff to reapply for HAMP. (Id.) Plaintiff contends that thisemail demonstrates that Defendant received the completed loan modification application as early asMay 20, 2013 and that Mr. Fearon was another point of contact.
The Court finds that for the purposes of this motion only, that Plaintiff has presented sufficientevidentiary facts to establish a likelihood that she will prevail. (Tahoe Keys Property Owners' Assn.,supra, 23 Cal.App.4th at 1478.) Given the May 20th email, it appears that Mr. Fearon was Plaintiff'ssingle point of contact. Although Mr. Fearon directed Plaintiff to reapply for HAMP, "the single point ofcontact shall remain assigned to the borrower's account until the mortgage servicer determines that allloss mitigation options offered by, or through, the mortgage servicer have been exhausted or theborrower's account becomes current." (Civ. Code §2923.7(c).) Thus, it appears that Mr. Fearon shouldhave remained Plaintiff's single point of contact because he had not yet determined that all lossmitigation options had been exhausted. Based on the foregoing, the Court concludes that Plaintiff hasmet her burden to demonstrate alikelihood of prevailing on the merits of her claims.
Balance of the Harms
The Court agrees that Plaintiff will undoubtedly suffer great injury if her residence is sold. Accordingly,the relevant factors favor Plaintiff, and the court will grant the motion for preliminary injunction.
Bond is set in the amount of $10,000.
The prevailing party shall prepare a formal order for the Court's signature pursuant to C.R.C. 3.1312.
Although the notice of motion provided notice of the Court's tentative ruling system as required by LocalRule 1.06, the notice does not comply with the current rule. Moving counsel is directed to review theLocal Rules, effective January 1, 2013.
MINUTE ORDER DATE: 08/19/2013 Page 3 DEPT: 54 Calendar No.
CASE TITLE: Rogers vs. OneWest Bank FSB CASE NO: 34-2013-00144866-CU-WE-GDS
COURT RULING The matter was argued and submitted. The Court affirmed the tentative ruling. The $10,000 bond to beposted by close of business on 8/20/13.
STOLO
MINUTE ORDER DATE: 08/19/2013 Page 4 DEPT: 54 Calendar No.
MINUTE ORDER DATE: 08/19/2013 Page 4 DEPT: 54 Calendar No.
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107
CIVIL LAW & MOTION
Deutsche Bank National Trust Company vs Robert Pastor et al
Case No: 1417736
Hearing Date: Fri Aug 09, 2013 9:30
Nature of Proceedings: Motion: Quash/Dismiss UD Complaint
This is an unlawful detainer action following a foreclosure sale. The property at
issue is located at 25 Canejo Road, Santa Barbara, California 93103. Plaintiff
Deutsche Bank National Trust Company acquired the property at a public auction
on September 29, 2011. Plaintiff’s ownership is evidenced by a trustee’s deed upon
sale that was recorded with the Santa Barbara County Recorder’s Office on October
4, 2011. On March 11, 2013, plaintiff caused to be served on defendant Robert
Pastor, a tenant at the property, a written notice requiring him to vacate the
premises within 90 days. On May 16, 2013, plaintiff caused to be served on
defendant Brooke Robbins, also a tenant at the property, a written notice requiring
her to vacate the premises within 30 days. Plaintiff alleges that Brooke Robbins’s
parents, Vincent and Virginia Robbins, the former owners of the property, still
occupy the property and therefore the code section requiring 90 days’ notice to
vacate did not apply to Brooke Robbins.
Defendants Robert Pastor and Brooke Robbins now move for an order quashing
service of the summons on the ground that Brooke Robbins was not served with the
notice to vacate at least 90 days prior to the filing of the unlawful detainer action on
June 25, 2013. Defendants also contend that the two notices to vacate that were
served on them are void because they did not contain the mandatory language to
tenants concerning reclaiming abandoned property.
A defendant may file a motion to quash service of the summons and complaint on
the ground that the court lacks jurisdiction. Code of Civil Procedure Section 418.10
provides, in relevant part:
“(a) A defendant, on or before the last day of his or her time to plead or within any
further time that the court may for good cause allow, may serve and file a notice of
Tuesday, September 24, 2013 12:00pm to 1:30pm Pacific Time
1.5 Hours of MCLE Credit
Reserve your webinar seat! Register now!
This free webinar will introduce the basic structure of the federal Home Affordable Modification Program (HAMP) and place it in the context of other available modification programs. We will review topics including eligibility, how modifications are done, and servicer requirements for timing and notice. Updates on recent developments will be included. Presenter: Alys Cohen, staff attorney, National Consumer Law Center
The HBOR Collaborative is comprised of San Francisco-based housing advocacy center, the National Housing Law Project (NHLP), and its project partners, Western Center on Law & Poverty, the National Consumer Law Center, and Tenants Together. The HBOR Collaborative is funded by the Office of the California Attorney General under the national Mortgage Settlement. The HBOR Collaborative offers free training, technical assistance, litigation support, and legal resources to California’s consumer attorneys and the judiciary on all aspects of the new California Homeowner Bill of Rights (HBOR). The goal of the Collaborative is to ensure that California’s homeowners and tenants receive the intended benefits secured for them under the Homeowner Bill of Rights by providing legal representation with a broad array of support services and practice resources. To learn more about California HBOR and all upcoming trainings, consumer attorneys should go to http://calhbor.org/. Register here or at the HBOR Collaborative for this training. After registering, you will receive a confirmation email containing information about joining the webinar. System Requirements: PC-based Attendees: Require Windows 8, 7, Vista XP, or 2003 Server, Mac-based Attendees: Require Mac OSX 10.6 or newer, Mobile attendees: IPhone, IPad, Android phone or Android tablet. Questions? If you need help registering for this webinar, please contact [email protected]
REPRESENTING HOMEOWNERS & TENANTS UNDER THE HOMEOWNER BILL OF RIGHTS
This free training will be held at:
Sierra Curtis Neighborhood Association 2791 24th Street, Sacramento
The HBOR Collaborative presents a free all-day training on the nuts and bolts of representing tenants and homeowners under California’s Homeowner Bill of Rights (HBOR). The training will cover HBOR basics and provide practical tips for representing clients. HBOR became effective on January 1, 2013 and codifies the broad intentions of the National Mortgage Settlement’s pre-foreclosure protections. It also provides tenants in foreclosed properties with a host of substantive and procedural protections. The training will cover the interplay of HBOR with NMS, CFPB servicing rules, and the Protecting Tenants at Foreclosure Act. We will also discuss HBOR’s attorney fee provisions. Registration information will be available in mid-September. The HBOR Collaborative, a partnership of four organizations, National Housing Law Project, National Consumer Law Center, Tenants Together and Western Center on Law and Poverty, offers free training, technical assistance, litigation support, and legal resources to California’s consumer attorneys and the judiciary on all aspects of the new California Homeowner Bill of Rights, including its tenant protections. The goal of the Collaborative is to ensure that California’s homeowners and tenants receive the intended benefits secured for them under the Homeowner Bill of Rights by providing legal representation with a broad array of support services and practice resources.
To contact the HBOR Collaborative team or for more information on our services for attorneys, please visit http://calhbor.org/
The HBOR Collaborative and its services, including this free training for attorneys, are funded by a grant from the Office of the Attorney General of California from the National Mortgage Settlement to assist California consumers. This training would not be possible without the invaluable support of our partners the California State Bar and Housing Opportunities Collaborative.
Note: Please visit our web site at www.calhbor.org for information on