Judge Joel R Wohlfeil, Case 37-2023-00046379-CU-OR-CTL 2023-12-14 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00046379-CU-OR-CTL, Date: 2023-12-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/14/2023 03:00:00 PM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Other Real Property OSC - Non-Sanction 37-2023-00046379-CU-OR-CTL REITER COOK VS PHH MORTGAGE CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The Motion (ROA # 15, 16, 21, 22) of Plaintiffs JENNIFER REITER COOK and JAMES COOK ('PLAINTIFFS') for a Preliminary Injunction to restrain DEFENDANTS PHH MORTGAGE CORPORATION, U.S. BANCORP d / b / a U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR WACHOVIA MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSETBACKED CERTIFICATES, SERIES 2005- WMC1 and WESTERN PROGRESSIVE, LLC (collectively 'DEFENDANTS') from foreclosing PLAINTIFFS' primary residence located at 2385 Treehouse St, Chula Vista, CA 91915 ('PROPERTY'), is GRANTED.

During the pendency of this action Defendants are restrained and enjoined from selling the property located at 2385 Treehouse Street, Chula Vista, CA 91915. Plaintiffs are ordered to submit a proposed order.

Plaintiffs must post an undertaking or, in the alternative, make the monthly mortgage payments within 5 days of the date of this hearing, as discussed below.

The Court considers two interrelated questions in deciding whether to issue a preliminary injunction: (1) is Plaintiff likely to suffer greater injury from a denial of the injunction than Defendant is likely to suffer from its grant; and (2) is there a reasonable probability that Plaintiff will prevail on the merits. Robbins v. Superior Court (1985) 38 Cal. 3d 199, 206; Code Civ. Proc. 526(a).

The Court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors.

Butt v. State of California (1992) 4 Cal. 4th 668, 678.

A preliminary injunction is appropriate when pecuniary compensation would not afford adequate relief; or where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. Code Civ. Proc. 526(a).

A preliminary injunction amounts to a mere interlocutory order to maintain the status quo pending a determination of the action on its merits. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 191.

The burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1481.

The potential loss of unique real property is sufficient to establish irreparable harm such that money Calendar No.: Event ID: TENTATIVE RULINGS

3053042 CASE NUMBER: CASE TITLE: REITER COOK VS PHH MORTGAGE CORPORATION [IMAGED] 37-2023-00046379-CU-OR-CTL damages are an inadequate legal remedy. See Baypoint Mortgage Corp. v. Crest Premium Real Estate Etc. Trust (1985) 168 Cal. App. 3d 818, 825 ('[g]iven the drastic implications of a foreclosure, it is not surprising to find courts quite frequently granting preliminary injunctions...').

This action involves ownership of unique real property in which Plaintiffs reside. This supports the irreparable harm prong.

Regarding the probability of prevailing, the first cause of action alleges a violation of Civil Code section 2923.5. A mortgage servicer 'shall not record a notice of default' until the mortgage servicer has contacted the borrower 'to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.' Civ. Code 2923.5(a).

Paragraph 4 of the declaration of Plaintiff Jennifer Reiter Cook states that in March, 2023, Plaintiffs 'contacted PHH to discuss loss mitigation options. A PHH agent discussed the options of a repayment plan with a $7,500.00 required down payment. We showed interest in this offer, the PHH agent confirmed they must verify the plan and that we will receive an offer via mail.' Paragraph 6 states: 'A few weeks later, we contacted PHH again to discuss the repayment plan. A PHH agent informed us that we were not approved for a repayment plan as of March 20, 2023. In fact, we were not qualified for any mortgage assistance.' Paragraph 9 states: 'On July 11, 2023, WESTERN, on behalf of PHH and US BANK, recorded a Notice of Default ... against the PROPERTY.' Paragraph 11 states: '... [N]o Defendant, including PHH or US BANK, contacted us by telephone or in person, as required by code, assessed my finances, or explored all non-foreclosure options. We haven't received a missed call or voice message from Defendants attempting to contact us ....' Paragraph 14 states: 'PHH also confirmed that there were no loss mitigation options available for us, though PHH had not reviewed our financials or hardship.' Plaintiff's declaration admits there was contact to explore options to avoid foreclosure, and this occurred more than 30 days before the Notice of Default was recorded. It makes no difference that Defendants did not make the initial contact with Plaintiffs because the contact did, in fact, take place and options were explored. On the other hand, the evidence presented by Plaintiffs suggests this contact was incomplete because PHH did not assess Plaintiffs' financial situation in conjunction with exploring ways to avoid foreclosure.

Only a 'material violation' will support a cause of action. Civ. Code 2924.12(a); see also Castillo v. Wells Fargo Bank, N.A. (N. D. Cal., July 17, 2015, No. C-15-2353 MMC) 2015 WL 13425101, at *1 ('The First Case of Action... is subject to dismissal, as Castillo fails to allege sufficient facts to support a finding that the alleged violations of the California Homeowner Bill of Rights ('HBOR') were 'material,' e.g., that any such violation prejudiced Castillo's ability to obtain a loan modification ....).

The failure to address Plaintiffs' financial situation could have been a contributing factor in the ultimate decision to deny the loan modification. The basis for this decision can only be known by Defendant PHH, but it has not submitted any evidence in opposition to this Motion. In the absence of any contradictory evidence, Plaintiffs have sufficiently demonstrated a probability of prevailing on the first cause of action.

The second cause of action alleges a violation of Civil Code section 2923.7. 'When a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.' Civ. Code 2923.7(a).

Calendar No.: Event ID: TENTATIVE RULINGS

3053042 CASE NUMBER: CASE TITLE: REITER COOK VS PHH MORTGAGE CORPORATION [IMAGED] 37-2023-00046379-CU-OR-CTL 'The single point of contact shall remain assigned to the borrower's account until the mortgage servicer determines that all loss mitigation options offered by, or through, the mortgage servicer have been exhausted or the borrower's account becomes current.' Id. at (c).

'For purposes of this section, 'single point of contact' means an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in subdivisions (b) to (d), inclusive. The mortgage servicer shall ensure that each member of the team is knowledgeable about the borrower's situation and current status in the alternatives to foreclosure process.' Id. at (e).

The declaration of Plaintiff Jennifer Reiter Cook does not specify whether or not a SPOC was assigned when Plaintiffs initially contacted Defendant PHH in March 2023. Plaintiffs do not specify whether they communicated with different individuals or teams of personnel during their multiple contacts with PHH.

Therefore, Plaintiffs have not satisfied their burden of demonstrating a probability of prevailing on the second cause of action.

Regarding the third cause of action, promissory estoppel applies whenever a promise which the promissor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance would result in an injustice if the promise were not enforced. Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal. App. 4th 1661, 1671, 1672.

The elements of a promissory estoppel claim are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his or her reliance. Id. at 1672.

Paragraph 4 of the Reiter Cook declaration evidences the promised loan modification plan. In addition, there is evidence of reliance and injury: Plaintiffs delayed in pursuing other avenues of relief while they waited for confirmation of the modification plan. In the absence of any contradictory evidence, Plaintiffs have sufficiently demonstrated a probability of prevailing on the third cause of action.

'On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.' Code Civ. Proc. 529(a).

Defendants request an undertaking amount of $34,669.88, which is equal to the default amount. In the alternative, Defendants request that Plaintiffs should be ordered to make their monthly mortgage payments pending the completion of this litigation, in the amount of $2,509.86. The reply brief does not address this issue. Both the undertaking amount and the alternative payments appear to be reasonable.

Plaintiffs will be permitted to elect either option. The undertaking or the first (December) monthly payment must be tendered within 5 days of this hearing. If Plaintiffs do not timely satisfy this condition, the Motion is DENIED and Defendants may resume the foreclosure proceeding.

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