Judge: Armen Tamzarian, Case: 24STCV02211, Date: 2025-03-26 Tentative Ruling
Case Number: 24STCV02211 Hearing Date: March 26, 2025 Dept: 52
Defendants’ Motion for Summary
Judgment or, in the Alternative, Summary Adjudication
Defendants Specialized Loan
Servicing LLC (SLS); Mortgage Electronic Registrations Systems, Inc. (MERS); and
The Bank of New York Mellon F/K/A The Bank of New York as Indenture Trustee for
CWHEQ Revolving Home Equity Loan Trust, Series 2006-1 (BONY) move for summary
judgment of this action by plaintiff Josue Benitez. In the alternative, defendants move for summary
adjudication of each cause of action.
Legal Standard for Summary Judgment or
Adjudication
Summary judgment should be
granted where no triable issues of fact exist and the moving party is entitled
to judgment as a matter of law. (CCP §
437c(c); Villa v. McFerren (1995) 35
Cal.App.4th 733, 741.) Courts use a
three-step analysis: “(1) identify the issues framed by the pleadings; (2)
determine whether the moving party has negated the opponent’s claims; and (3)
determine whether the opposition has demonstrated the existence of a triable,
material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.)
1st Cause of Action: Violation of Civil
Code § 2924(a)(6)
Defendants are entitled to
summary adjudication of plaintiff’s first cause of action. Civil Code section 2924, subdivision (a)(6)
provides, “An entity shall not record or cause a notice of default to be
recorded or otherwise initiate the foreclosure process unless it is the holder
of the beneficial interest under the mortgage or deed of trust, the original
trustee or the substituted trustee under the deed of trust, or the designated
agent of the holder of the beneficial interest.” (Accord Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 927 (Yvanova) [“the trustee may”
foreclose “only at the direction of the person or entity that currently holds
the note and the beneficial interest under the deed of trust—the original
beneficiary or its assignee—or that entity’s agent”].)
Plaintiff’s first cause of
action alleges defendants “were not the beneficial holder of the trust and the
May 2022 assignment to Bank of New York Mellon is void” (Comp., ¶ 31) and they
foreclosed on his home via “a 2nd lien that they did not have any ownership
interest in” (id., ¶ 32).
Defendants present undisputed
evidence that they were holders of the beneficial interest under the deed of
trust, the trustees, or their designated agents. In 2006, plaintiff executed a promissory note
secured by a deed of trust. (Ortega
Decl., ¶ 7.a, Ex. 1.) The deed
identifies MERS as the beneficiary under the deed of trust “acting solely as a
nominee for Countrywide Bank, N.A.” (Id.,
p. 2.) In 2022, MERS assigned its
beneficial interest in the deed to BONY.
(Ortega Decl., ¶ 7.b, Ex. 3.) The
assignment of deed of trust was recorded with the Los Angeles County Recorder’s
Office. (Ibid.) BONY then substituted Affinia Default
Services, LLC, as the new trustee.
(Ortega Decl., ¶ 7.c, Ex. 4.) The
substitution of trustee was also recorded with the County. (Ibid.) On January 17, 2023, Affinia, through its
designated agent SLS, recorded a notice of default and election to sell. (Ortega Decl., ¶ 11, Ex. 9.) On April 21, 2023, Affinia, through SLS, recorded
a notice of trustee sale under deed of trust.
(Id., ¶ 13, Ex. 11.)
The evidence thus shows that,
at the time of the foreclosure, BONY held the beneficial interest, Affinia was
the trustee, and SLS acted as their agent.
They had the power to foreclose. Plaintiff
attempts to dispute these facts by asserting, “The required notices were not
properly served upon Plaintiff, since the notices were posted at an address
that is not affiliated with Plaintiff, so MERS could not lawfully assigned
[sic] the entirety of its beneficial interest to BONY pursuant to an Assignment… Furthermore, MERS and BONY conspired against
Plaintiff by not properly serving the said notices upon Plaintiff, with the
intent to defraud Plaintiff of his home.”
(Opp. to Separate Statement, No. 3.)
None of that pertains to
whether defendants had the power to foreclose on the property. “[A] borrower can generally raise no
objection to assignment of the note and deed of trust. A promissory note is a negotiable instrument
the lender may sell without notice to the borrower. [Citation.]
The deed of trust, moreover, is inseparable from the note it secures,
and follows it even without a separate assignment.” (Yvanova, supra, 62 Cal.4th at p. 927,
italics added.) A borrower may only
challenge an assignment if it is “not merely voidable but void.” (Id. at p. 943.) Plaintiff neither explains any legal theory
nor alleges any facts nor provides any evidence that the assignment to BONY or
the substitution of trustee were void.
2nd Cause of Action: Violation of Civil
Code §§ 2924b & 2924f
Defendants are entitled to
summary adjudication of plaintiff’s second cause of action. Civil Code sections 2924b and 2924f set forth
requirements for a notice of default and a notice of sale, including service
and recording of the notices, in nonjudicial foreclosure. Plaintiff’s complaint alleges, “Plaintiff
never received a copy of the notice of default that was recorded on his
property via mail, certified mail, posting or otherwise” (Comp., ¶ 37) and “never
received a copy of the notice of trustee’s sale” (¶ 38).
Defendants present undisputed evidence they complied with Civil
Code sections 2924b and 2924f. “On May
20, 2022, SLS sent Plaintiff a delinquency letter, notifying Plaintiff that the
Loan was in default… .” (Ortega Decl., ¶
10, Ex. 8.) The letter was addressed to
plaintiff at the subject property, 220 West 50th Street, Los Angeles, CA
90037. (Ibid.) After the notice of default was recorded, “on
January 25, 2023, the NOD was mailed to Plaintiff at the Property address via
First Class Mail and Certified Mail. Again,
on February 7, 2023, and February 14, 2023, the same was sent to the Property
address via the same method.” (Lemus
Decl., ¶ 5, Ex. C.)
After the notice of trustee sale was recorded, it was “sent
to Plaintiff at the Property address via First Class Mail and Certified Mail on
April 26, 2023, which is 22 days before the date of the trustee’s sale.” (Lemus Decl., ¶ 7, Ex. D.) “The NOS also was published in the Daily
Commerce on April 28, 2023, May 5, 2023, and May 12, 2023 … and it was also
posted at the Property on April 28, 2023.”
(Id., ¶ 8, Exs. F-G.)
Defendants attached photographs of the notice of sale posted at the gate
in front of the property. (Id.,
Ex. G.)
Plaintiff attempts to dispute
this evidence in three ways. First, his
declaration states he did not receive the notice of default or notice of
trustee’s sale, either by mail or posting.
(Benitez Decl., ¶¶ 9, 10, 13-15.) Whether the borrower “actually received”
required notice is not a material dispute of fact that precludes summary
judgment. (Knapp v. Doherty
(2004) 123 Cal.App.4th 76, 88.) “The
trustor need not receive actual notice of the trustee’s sale so long as
notice is provided to the trustor that is in compliance with the statute.” (Ibid.) Trustees are not required to guarantee
delivery to the trustor.
Second,
plaintiff contends defendants mailed documents to the wrong address. He states, “Upon review of the exhibits from
the defendants for this motion on hundreds of documents that were allegedly
mailed to me, the documents indicate a mailing address of 14545 Victory Blvd.,
Suite 401, Van Nuys, CA 91411. I do not know
what this address is for and this address is not affiliated with me.” (Benitez Decl., ¶ 11.) The documents mailed to that address,
however, do not include the notice of default or notice of trustee’s sale. The documents sent to the wrong address were a
“welcome letter” from SLS (Ortega Decl., Ex. 5), loss mitigation letters (id.,
Ex. 6), and loan modification offers (id., Ex. 7), and one of two copies
of the May 20, 2022 default notice (id., Ex. 8). That notice was sent to plaintiff both at the
address on Victory Blvd. (id., p. 1) and at the subject property (id.,
p. 3).
Failing to send the welcome
letter, loss mitigation letters, or loan modification offers to the right
address does not constitute a violation of Civil Code sections 2924b or 2924f. Those communications are only required under
the Homeowner Bill of Rights, which “shall apply only to a first lien mortgage
or deed of trust… .” (Civ. Code, §
2924.15, subd. (a).) It does not apply
to the subject deed of trust because it is a second lien. The first page of the deed of trust states at
the bottom, “This deed of trust is second and subject to a first deed of trust
recording concurrently.” (Ortega Decl.,
Ex. 1, p. 2.) Plaintiff’s complaint
acknowledges the foreclosure was on “the 2nd lien (subject loan).” (Comp., ¶ 16; see ¶¶ 24-26.)
Third, plaintiff purports to
dispute the amount of the debt. In his
declaration, plaintiff states, “I dispute the amount that they foreclosed upon
my house. Between the Notice of Default
and the Notice of Trustee’s Sale, my loan balance went from $117,000.00
approximately to $171,000.00. I dispute
these amounts as well.” (Benitez Decl.,
¶ 17.)
A statement under penalty of
perjury that something is disputed does not constitute evidence demonstrating a
genuine dispute of material fact. “[I]n
order to avert summary judgment the plaintiff must produce substantial
responsive evidence sufficient to establish a triable issue of material fact on
the merits of the defendant’s showing.”
(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163; accord Wiz
Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11 [“the
opposition to summary judgment will be deemed insufficient when it is
essentially conclusionary, argumentative or based on conjecture and speculation”].)
Plaintiff cannot avoid summary judgment
merely by stating the conclusion that he disputes defendants’ evidence.
3rd Cause of Action: Quiet Title
Defendants are entitled
to summary adjudication of this cause of action. “In
a quiet title action the plaintiff must prove his title in order to
recover.” (Preciado v. Wilde (2006)
139 Cal.App.4th 321, 326.) Plaintiff
alleges the basis of his title is that the nonjudicial foreclosure was invalid. (Comp., ¶¶ 43-44.) For the reasons discussed above, defendants
establish the foreclosure was valid, and plaintiff presents no evidence to the
contrary.
4th Cause of Action: Wrongful Foreclosure
Defendants
are entitled to summary adjudication of this cause of action. “The basic elements of a tort cause of action
for wrongful foreclosure track the elements of an equitable cause of action to
set aside a foreclosure sale. They are:
‘(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully
oppressive sale of real property pursuant to a power of sale in a mortgage or
deed of trust; (2) the party attacking the sale (usually but not always the
trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the
trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the
amount of the secured indebtedness or was excused from tendering.’ ” (Miles v. Deutsche Bank National Trust Co.
(2015) 236 Cal.App.4th 394, 408.)
The
undisputed facts show plaintiff cannot establish the first element. As discussed above, the record includes no
evidence that there was anything illegal, fraudulent, or willfully oppressive
about the foreclosure.
Disposition
Defendants Specialized
Loan Servicing LLC; Mortgage Electronic Registrations Systems, Inc.; and The
Bank of New York Mellon F/K/A The Bank of New York as Indenture Trustee for
CWHEQ Revolving Home Equity Loan Trust, Series 2006-1’s motion for summary
judgment is granted.