Judge Joel R Wohlfeil, Case 37-2023-00046379-CU-OR-CTL 2024-01-26 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00046379-CU-OR-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Real Property Demurrer / Motion to Strike 37-2023-00046379-CU-OR-CTL REITER COOK VS PHH MORTGAGE CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 12/11/2023

The general Demurrer (ROA # 28) of Defendants PHH Mortgage Corporation ('PHH'), U.S. Bank National Association, as Trustee for Wachovia Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-WMC1 (erroneously sued as US Bancorp d / b / a U.S. Bank National Association, as Trustee for Wachovia Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-WMC1) ('US Bank'); and Western Progressive Trustee, LLC, dba Western Progressive, LLC (erroneously sued as Western Progressive, LLC) ('Western Progressive') (collectively 'Defendants') to Complaint filed by Plaintiffs Jennifer Reiter-Cook and James Cook (collectively 'Plaintiffs'), is OVERRULED.

Defendants are ordered to file and serve Answer within twenty (20) days of this hearing.

This ruling is based on the analysis set forth below.

Defendants' Request (ROA # 30) for judicial notice is GRANTED.

1st COA: VIOLATION OF CIVIL CODE 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).

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 ....') Although, the Complaint describes contacts and communications between Plaintiffs and PHH, these communications (as alleged) did not include specific loss mitigation options or assess Plaintiffs' financial condition. The alleged incomplete contact could have been a contributing factor in the ultimate decision to deny the loan modification. As alleged, this caused delay which prevented Plaintiffs from exploring other options to avoid foreclosure. The general Demurrer is overruled on this basis.

2nd COA: VIOLATION OF CIVIL CODE 2923.7 Calendar No.: Event ID: TENTATIVE RULINGS

3064505 CASE NUMBER: CASE TITLE: REITER COOK VS PHH MORTGAGE CORPORATION [IMAGED] 37-2023-00046379-CU-OR-CTL '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).

'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).

As discussed above, only a 'material violation' will support a cause of action. Civ. Code 2924.12(a).

It is unclear from the allegations whether PHH assigned a single person or team to serve as a point of contact in communications with Plaintiffs. However, even if this did occur, the facts alleged demonstrate a violation because the requested loan modification was denied by a point of contact that lacked knowledge about Plaintiffs' financial situation and the available alternatives to a foreclosure.

As discussed above, it is alleged that this violation could have been a contributing factor in the ultimate decision to deny the loan modification. As alleged, this caused delay which prevented Plaintiffs from exploring other options to avoid foreclosure. The general Demurrer is overruled on this basis.

3rd COA: PROMISSORY ESTOPPEL 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.

The Complaint sufficiently alleges the promised loan modification plan. In addition, reliance and injury are alleged. As alleged, Plaintiffs delayed pursuing other avenues of relief while they waited for confirmation of the modification plan. Whether the promise is sufficiently definite, and whether Plaintiffs caused the delay and denial are questions of fact that cannot be determined via this Demurrer. The general Demurrer is overruled on this basis.

4th COA: VIOLATION OF BUSINESS & PROFESSIONS CODE 17200 This cause of action is predicated on the unlawful and unfair conduct alleged within causes of action 1 - 3. As a result, sufficient facts are alleged supporting the unfair competition.

Plaintiff must have suffered an 'injury in fact' and have 'lost money or property as a result of such unfair competition' to have standing to pursue either an individual or a representative claim under the California unfair competition law. Bus. & Prof. Code 17204 and Hall v. Time Inc. (2008) 158 Cal. App. 4th 847, 849.

Paraph 83 within this cause of action of the Complaint sufficiently alleges injury that resulted from the lost opportunity to modify the loan or timely seek other avenues to avoid foreclosure. The general Demurrer is overruled on this basis.

Calendar No.: Event ID: TENTATIVE RULINGS

3064505