Judge: David A. Hoffer, Case: 30-2019-1113106, Date: 2022-08-08 Tentative Ruling

Before the Court is the Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues, filed on 12/2/21, by moving party Bayview Loan Servicing, LLC (here “MP”) as to all of the claims presented in the Complaint filed by Plaintiff Donald Karn (“Plaintiff”).  The Motion for Summary Judgment is GRANTED.

On the First Cause of Action (“COA”), the Complaint asserts that the Homeowner’s Bill of Rights (“HBOR”) was violated by MP because it continued with foreclosure steps after he had submitted loan modification applications, and failed to provide a single point of contact (“SPOC”). (Complaint ¶¶ 22-30.)  But even if MP did not fully comply with the HBOR, there is no liability for a technical violation that does not thwart its purposes. (Billesbach v. Specialized Loan Servicing LLC (2021) 63 Cal.App.5th 830, 845.)  Postponing foreclosure and reviewing the borrower for loss mitigation cures any previous HBOR violation. (Billesbach, supra, 63 Cal.App.5th at 847.)  Here, the undisputed facts show that MP never foreclosed, did designate an SPOC, and did consider loss mitigation options for him. (UF 3-10.)  MP has thus shown that, based on the undisputed facts, there was no uncured material violation of the HBOR here.

For COA 2, the Complaint asserts that MP was negligent in its review of his loan modification applications.  (Complaint ¶¶ 32- 36.) But a lender does not owe a borrower a tort duty of care in its review of loan modification applications.  (See Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 915.)  This claim thus fails under Sheen.

As COA 3 asserts a derivative UCL claim, it thus also fails as a matter of law.  (See Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147 [“Because the underlying causes of action fail, the derivative UCL and PAGA claims also fail.”]; Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277 [as UCL claim derivative, it “stands or falls” with the underlying claim].)  Plaintiff has also failed to show any causal connection between any alleged wrongdoing by MP and any economic injury to him, and thus lacks standing for this claim. (See Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 522 [where plaintiff’s home was subject to nonjudicial foreclosure because of a default which occurred before Defendants' alleged wrongful acts, no causal connection shown] disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 935.)  Here, as it is undisputed that Plaintiff had been in default since 2011 (UF 2), he also cannot show standing for this claim.

COAs 4, 5 and 6 are predicated upon alleged oral representations or promises that “as long as he continued to provide the documents requested, the foreclosure sale would not occur,” that in 2018 MP “agreed to conduct a loan modification review…and stop all foreclosure efforts” and that “they would not lose his Home to foreclosure during the modification review.” (Complaint ¶¶ 49, 56, 59, 60, 67.)  But the undisputed facts establish that MP conducted a review and did not foreclose. (UF 6, 7 and 9.) The undisputed facts thus preclude liability on these claims, as the alleged representations that no foreclosure would occur while an application was pending were not false. These claims thus also fail as a matter of law.

As all of the claims presented in the Complaint thus fail here, the Motion for Summary Judgment is GRANTED.

The Request for Judicial Notice filed with the Reply is GRANTED as to the existence of the records under Ev. Code §452(d), but not as to the truth of any disputed facts asserted therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

MP is ordered to submit an appropriate proposed order, in accordance with C.R.C. 3.1312, which comports with this ruling, and give notice.