Judge: Gail Killefer, Case: 22STCV35576, Date: 2023-11-16 Tentative Ruling
Case Number: 22STCV35576 Hearing Date: November 16, 2023 Dept: 37
HEARING DATE: Thursday, November 16, 2023
CASE NUMBER: 22STCV35576
CASE NAME: Robert Gabriel v. Select Portfolio
MOVING PARTY: Defendants Select Portfolio
Servicing, Inc.; The Bank of New Your Mellon f/k/a The Bank of New York as
Successor in Interest to JP Morgan Chase Banke, N.A. as Trustee, for Ixis Real
Estate Capital Trust 2005-HE2; Mortgage Pass-Through Certificates Series
2005-HE2; and Quality Loan Service Corporation
OPPOSING PARTY: Plaintiff Robert Gabriel
TRIAL DATE: 7 May 2024
PROOF
OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment/Adjudication
OPPOSITION: 2 November 2023
REPLY: 9 November
2023
TENTATIVE:
Defendants’ Motion
for Summary Judgment is granted.
Background
On November 8, 2022, Robert Gabriel (“Plaintiff”) filed a
Complaint against Select Portfolio Servicing, Inc.; The Bank of New Your Mellon
f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank,
N.A. as Trustee, for Ixis Real Estate Capital Trust 2005-HE2; Mortgage
Pass-Through Certificates Series 2005-HE2; Quality Loan Service Corporation
(collectively “Defendants”); and Does 1 to 20.
The Complaint alleges five causes of action: (1)
violation of Civ. Code § 2923.6(c)(1); (2) violation of Civ. Code § 2923.6(f);
(3) violation of Civ. Code § 2923.7; (4) Negligence and Negligence Per Se; and
(5) violation of Bus. & Prof. Code § 17200.
On August 4, 2023, Defendants filed a motion for
summary judgment, or summary adjudication in the alternative. On November 2,
2023, Plaintiff filed opposing papers. Defendants filed a reply on November 9,
2023. The matter is now before the court.
motion
for summary judgment or summary adjudication, in the alternative
I. Legal
Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from the evidence’
and uncontradicted by other inferences or evidence, show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (CCP §
437c(f).)¿¿¿¿¿¿¿¿
¿¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (CCp § 437c(p)(2);¿Aguilar,¿25
Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the
claim “cannot be established” because of the lack of evidence on some essential
element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts
to the plaintiff to show that a “triable issue of one or more material facts
exists as to that cause of action or defense thereto.”¿(Id.)¿¿¿¿¿¿¿
¿¿¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary
judgment motion, the court must therefore consider what inferences favoring the
opposing party a factfinder could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿¿
¿¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.”] [emphasis added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿
II. Evidentiary
Objections
Plaintiff’s Evidentiary Objection to the
Declaration of Shannon J. McGinnis
Objections Nos. 1 to 12 are overruled
III. Request for
Judicial Notice
The Court may take judicial notice of records of any court of
record of the United States. (Evid. Code, § 452(d)(2).) However, the court may
only judicially notice the existence of the record, not that its contents are
the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
On reply, Defendants seek judicial notice of the following:
1)
On July 2, 2021, Plaintiff filed a petition for Chapter 11
Bankruptcy in the United States Bankruptcy Court for the Central District of
California, Case No. 2:21-bk-15466-WB (the “Bankruptcy”). A true and correct
copy of the court docket for Case No. 2:21-bk-15466-WB is attached hereto as Exhibit
1.
2)
On
September 8, 2021, Plaintiff (jointly with BNYM) filed a motion to approve
stipulation for plan treatment concerning the first lien secured by the
property (the “Motion to Approve”), which is the same property at issue in the
current action. Attached to the Motion to Approve is Plaintiff’s and BNYM’s
joint Stipulation for Plan Treatment (the “BK Plan Stipulation”). A true and
correct copy of the Motion to Approve and BK Plan Stipulation, filed as “Doc
29,” is attached hereto as Exhibit 2. Plaintiff does not dispute, in his
Opposition, the authenticity or the contents of the Motion to Approve and the
BK Plan Stipulation.
3)
In
the BK Plan Stipulation, Plaintiff (jointly with BNYM) states that BNYM offered
Plaintiff a modification of his loan, resulting in reduced monthly payments
beginning on September 1, 2021. Plaintiff (jointly with BNYM) further states in
the BK Plan Stipulation that he would direct his payments to SPS, but, that if
the Bankruptcy was dismissed, the Loan would remain in full force in effect.
Plaintiff (jointly with BNYM) also states in the BK Plan Stipulation that the
modification of his Loan would apply permanently upon bankruptcy plan
confirmation. See Exhibit 2.
4)
On
October 5, 2021, the Bankruptcy court approved the Motion to Approve and the BK
Plan Stipulation. A true and correct copy of the Bankruptcy Court’s October 5, 2021,
Order, filed as “Doc 46,” is attached hereto as Exhibit 3. Plaintiff
does not dispute, in his Opposition, the authenticity or the contents of the
Bankruptcy Court’s October 5, 2021, Order.
5)
Plaintiff
filed a motion to voluntarily dismiss his Bankruptcy on September 21, 2022,
which was subsequently granted by the Bankruptcy Court and the Bankruptcy was
closed on October 26, 2022 (Dkt. # 138). A true and correct copy of Plaintiff’s
Motion for Dismissal, filed as “Doc 129,” is attached hereto as Exhibit 4.
Plaintiff does not dispute, in his Opposition, that he moved to voluntarily
dismiss the Bankruptcy (see Exhibit 1).
6)
On
February 17, 2016, Plaintiff filed a complaint against Defendants in the
Superior Court of California for the County of Los Angeles, Case No. BC610742,
which action was dismissed with prejudice on November 14, 2016. A true and
correct copy of the court docket for Case No. BC610742 is attached hereto as Exhibit
5.
7)
On
December 17, 2019, Plaintiff filed suit against Defendants the Superior Court
of California for the County of Los Angeles, Case No. 19STCV45595, which action
was dismissed on May 25, 2021. A true and correct copy of the court docket for
Case No. 19STCV45595 is attached hereto Exhibit 6.
A trial court may properly consider new evidence submitted
with a reply brief ““so long as the party opposing the motion for summary
judgment has notice and an opportunity to respond to the new material.” (Plenger
v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) The court finds that
the evidence is not presented for the first time on reply, as the evidence was
cited in the Declaration of Shannon
J. McGinnis. Moreover, because the evidence concerns Plaintiff’s own bankruptcy
proceedings, Plaintiff cannot allege he was surprised by evidence or denied the
opportunity to respond to the evidence in his opposition.
Accordingly,
Defendants’ request for judicial notice of exhibits 1 to 6 is granted.
IV. Discussion
A. Deficiencies
in Plaintiff’s Response to the Separate Statement
California Rules of
Court, rule 3.1350(f) lays out the requirements for the content of a separate
statement filed in opposition to a motion for summary judgment or summary
adjudication. In responding to the separate statement, the responding party,
“must unequivocally state whether that fact is "disputed" or
"undisputed." An opposing party who contends that a fact is disputed
must state, on the right side of the page directly opposite the fact in
dispute, the nature of the dispute and describe the evidence that supports the
position that the fact is controverted. Citation to the evidence in support of
the position that a fact is controverted must include reference to the exhibit,
title, page, and line numbers.” Here, Plaintiff’s responses to the separate
statement are a variation of “Unintelligible, Disputed” or “Disputed” or “Unintelligible, Disputed Evidentiary
Objection No(s): 3, 10” or are left blank (See e.g., UMF No. 19). Moreover, for
each disputed fact, there is no citation to the evidence that supports the
finding that the fact is disputed.
CCP § 437c(b)(1)
states, in relevant part:¿¿
The opposition papers
shall include a separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating if the opposing
party agrees or disagrees that those facts are undisputed. The statement also shall
set forth plainly and concisely any other material facts the opposing party
contends are disputed. Each material fact contended by the opposing party to be
disputed shall be followed by a reference to the supporting evidence. Failure
to comply with this requirement of a separate statement may constitute a
sufficient ground, in the court’s discretion, for granting the motion.
The fact that Plaintiff failed to cite
any evidence in the separate statement is sufficient grounds for the court to
grant Defendants’ Motion.
In Collins v. Hertz
Corp.¿(2006) 144 Cal.App.4th 64, the appellate court found that the trial
court did not abuse its discretion in striking portions of the plaintiff’s
separate statement on a motion for summary judgment because the separate
statement failed to comply with statutory and procedural requirements. (Id.
at 72.) The court has the discretion to “refuse to proceed with a summary
judgment motion in the absence of an adequate separate statement from the
opposing party. … [T]he proper response in most instances, if the trial court
is not prepared to address the merits of the motion in light of the deficient
separate statement, is to give the opposing party an opportunity to file a
proper separate statement.” (Id. at 74.) After being given another
opportunity, the deficiencies in the separate statement remained and since “the
offending portions of the plaintiffs' separate statement” were stricken, the
result was that “the majority of the defendants' facts were effectively left
undisputed and, on that basis, summary judgment was granted.” (Id. at p.
67.)
Here, the trial court is
prepared to address the motion on the merits because there appears to be a
complete lack of evidence to establish a triable issue of material fact. No evidence is cited in Plaintiff’s response
to the separate statement and in his memorandum and points of authority. “An issue of fact can only be created by
a conflict of evidence.” (Spinner v. American
Broadcasting Companies, Inc. (2013) 215
Cal.App.4th 172, 183 [internal citations and quotations omitted].) Given the lack of
evidence cited by Plaintiff, the court finds that giving Plaintiff another
chance to refile the separate statement would not cure the deficiencies in the
separate statement.
The court will focus on whether
Defendants have met their initial burden of showing no triable issues of fact
exist before considering whether Plaintiff has met his subsequent burden of
showing the existence of a triable issue of material fact. “Thus, where the parties have had
sufficient opportunity adequately to develop their factual cases through
discovery and the defendant has made a sufficient showing to establish a prima
facie case in his or her favor, in 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.)
B. Summary
of Facts
Plaintiff brought this action against Defendants on the ground
that Defendants failed to consider his request for a loan modification that
resulted in the subsequent foreclosure of his home located in Montebello, CA
(the “Property”). Defendants now move for summary judgment, or summary
adjudication in the alternative, on the ground that they did consider
Plaintiff’s multiple Requests for Mortgage Assistance (“RMA”), but most were
denied because under the pooling and servicing
agreement, the loan servicer, Defendant
Select Portfolio Servicing, Inc. (“SPS”), was contractually
restricted from modifying the principal balance, interest rate, or duration of
the Loan (the “Core Terms”). (Pittman Decl. ¶ 10.) On other occasions,
Plaintiff rejected the repayment plan offered (Undisputed Material Fact “UMF”
Nos. 20, 28.)
Defendants
now move for summary judgment.
C. 1st Cause of Action: Violation of Civ.
Code § 2923.6(c)(1)
Civil Code § 2923.6 is part of the
Homeowner Bill of Rights. “If a borrower submits
a complete application for a first lien loan modification…a mortgage servicer…
shall not record a notice of default or notice of sale, or conduct a trustee’s
sale, while the complete first lien loan modification application is pending.”
(Civ. Code § 2923.6(c)). Civil Code § 2924.12(a)(1) states: “If a
trustee’s deed upon sale has not been recorded, a borrower may bring an action
for injunctive relief to enjoin a material violation of Section 2923.55,
2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.”
“The HBOR is principally designed to
ensure that ‘as part of the nonjudicial foreclosure process, borrowers are
considered for, and have a meaningful opportunity to obtain, available loss
mitigation options, if any, offered by or through the borrower's mortgage
servicer, such as loan modifications or other alternatives to foreclosure.’” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 295 citing Civ. Code, §
2923.4.)
Here, the first cause of action pertains
to the October 2022 RMA (the “Thirteenth RMA”) in which Plaintiff stated he
diligently contacted SPS to inquire about his application but was told there
were no retention options available. He was
never given a written determination setting forth the specific round for the
denial of his October 2022 Application. (Compl. ¶¶ 42 – 45.) This led to the
wrongful foreclosure of the Property on December 7, 2022. (Compl. ¶ 47.)
Defendants assert that they satisfied
their obligations under Civil Code § 2623.6 by sending a letter to Plaintiff,
dated October 19, 2022, informing Plaintiff that “the account is ineligible for one or more
resolution options or it is ineligible for the option you selected on the RMA.”
(Pittman Decl. ¶ 27, Ex.
17.) Plaintiff was given the phone number, extension, and name of a Single
Point of Contact (“SPOC”) for SPS and was told to contact them for possible
assistance in finding an alternative resolution option. (Id.) “Civil
Code section 2923.6 does not grant a right to a loan modification. To the
contrary, it ‘merely expresses the hope that lenders will offer loan
modifications on certain terms’ and ‘conspicuously does not require lenders to
take any action.’ [Citation.]” (Intengan v. BAC Home Loans
Servicing LP (2013) 214 Cal.App.4th 1047, 1056.)
The court finds Defendants discharged
their obligation under Civil Code § 2923.6 when, prior to the foreclosure sale,
they informed Plaintiff that his request for loan modification had been denied
and the reasons why. As Defendants have met their burden of showing there is no
triable issue of fact, the burden shifts to Plaintiff. As discussed above, the
Plaintiff has submitted no evidence to show that a triable issue of fact
exists.
Therefore, summary adjudication is
granted as to the first cause of action.
D. 2nd Cause of Action: Violation of Civ.
Code § 2923.6(f)
Civil
Code § 2923.6(f) states:
(f) Following the denial of a first lien
loan modification application, the mortgage servicer shall send a written
notice to the borrower identifying the reasons for denial, including the
following:
(1) The amount of time from the date of
the denial letter in which the borrower may request an appeal of the denial of
the first lien loan modification and instructions regarding how to appeal the
denial.
(2) If the denial was based on investor
disallowance, the specific reasons for the investor disallowance.
(3) If the denial is the result of a net
present value calculation, the monthly gross income and property value used to
calculate the net present value and a statement that the borrower may obtain
all of the inputs used in the net present value calculation upon written
request to the mortgage servicer.
(4) If applicable, a finding that the
borrower was previously offered a first lien loan modification and failed to
successfully make payments under the terms of the modified loan.
(5) If applicable, a description of other
foreclosure prevention alternatives for which the borrower may be eligible, and
a list of the steps the borrower must take in order to be considered for those
options. If the mortgage servicer has already approved the borrower for another
foreclosure prevention alternative, information necessary to complete the
foreclosure prevention alternative.
(Civ.
Code, § 2923.6(f).)
Plaintiff’s
second cause of action is premised on Plaintiff’s October 28, 2020, RMA and
October 14, 2022, RMA sent to Defendant SPS. Defendants assert that regarding
Plaintiff’s October 28, 2020, RMA and October 14, 2022, RMA, they were exempt
from its provisions pursuant to Civil Code § 2923.6(g) which states in relevant
part:
In
order to minimize the risk of borrowers submitting multiple applications for
first lien loan modifications for the purpose of delay, the mortgage servicer
shall not be obligated to evaluate applications from borrowers who have been
evaluated or afforded a fair opportunity to be evaluated consistent with the
requirements of this section, unless there has been a material change in the
borrower's financial circumstances since the date of the borrower's previous
application and that change is documented by the borrower and submitted to the
mortgage servicer.
Defendants present evidence that the
October 28, 2022, RMA was Plaintiff’s Tenth RMA and the October 14, 2022, RMA
was Plaintiff’s Thirteenth RMA, such that Plaintiff has already been afforded
nine prior opportunities to be evaluated for a loan modification. (UMF Nos. 6,
8, 10, 12, 14, 17, 20, and 21.) For each RMA submitted, Defendants present
evidence that they submitted a response outlining why the modification was
denied. (Ibid.) In Rockridge Trust v. Wells Fargo,
N.A. (N.D. Cal. 2013) 985 F.Supp.2d 1110, the district court
similarly read the provision of Civil Code § 2923.6 as being inapplicable to
loan services borrowers who had already evaluated a borrower for a loan
modification. (Id. at p. 1151.) As Defendants have met their burden, and
the burden shifts to Plaintiff to show that twelve RMA submitted did not afford
him a fair opportunity to be evaluated for a loan modification.
Plaintiff
fails to present evidence that he experienced a material change in
circumstances such that Defendants were required to evaluate the October 8,
2020, RMA and October 14, 2022, RMA or that Defendants failed to evaluate the
request. Since Plaintiff fails to show that a triable issue of material fact
exists, summary adjudication is granted as to the second cause of action.
E. 3rd Cause of Action: Violation of Civ.
Code § 2923.7
Civil
Code § 2923.7 requires
the assignment of a single point of contact (“SPOC”) upon request from the
borrower, who is responsible for certain enumerated tasks including
communications regarding foreclosure prevention alternatives. (Civ. Code §
2923.7(a)).
Defendants provide copies of all the letters sent to
Plaintiff containing his SPOC information, including the name, extension, and
email address. (Pittman Decl. ¶ 30, Ex. 18.) The burden shifts to Plaintiff to
show that Defendants did not provide a SPOC or that the SPOC failed to comply
with their statutory duties. Therefore, as Plaintiff fails to present any
evidence to rebut Defendants’ evidence, summary adjudication is granted as to
the third cause of action.
F. 4th and 5th Causes of Action: Negligence
and Violation of Bus. & Prof. Code § 1700 et. seq.
Defendants
assert that Plaintiff’s two remaining causes of action for fail because they
are based on the same facts and statutory violations alleged in the first
through second causes of action.
Plaintiff’s
negligence claim is explicitly and solely predicated upon alleged violations of
Civil Code §§ 2923.6(c)(1), 2923.6(f), and 2923.7. (Compl. ¶ 91.) Similarly,
Plaintiff’s California Business & Professions Code § 17200 claim is
expressly and solely predicated upon alleged violation of Civil Code §§
2923.6(c)(1), 2923.6(f), and 2923.7. (Compl. ¶ 109.)
The
court agrees that Plaintiff’s fourth and fifth causes of action are derivative
of Plaintiff’s first through third causes of action. Therefore, since summary
adjudication was granted as to the first through third causes of action,
Plaintiff’s fourth and fifth causes of action also fail. Thus, summary
adjudication is granted as to the fourth and fifth causes of action.
Defendants’
motion for summary judgment is granted.
Conclusion
Defendants’ Motion for Summary Judgment is granted.
Defendants to give notice.