Judge Malcolm Mackey, Case 21STCV38558 2023-02-03 Tentative Ruling

Judge: Malcolm Mackey, Case: 21STCV38558, Date: 2023-02-03 Tentative Ruling

Case Number: 21STCV38558 Hearing Date: February 3, 2023 Dept: 55

BAUTISTA v. NATIONSTAR MORTGAGE, LLC 21STCV38558

Hearing Date: 2/3/23, Dept. 55

#4: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION.

Notice: Okay

Opposition

MP: Defendant NATIONSTAR MORTGAGE LLC.

RP: Plaintiffs.

Summary

On 10/20/21, Plaintiffs JUAN G. BAUTISTA AND CARMELA BAUTISTA filed a Complaint.

On 12/6/21, Plaintiffs filed a First Amended Complaint, alleging that, on or about October 5, 2006, they obtained a mortgage loan encumbering their owned residential property at 8744 Burnet Ave No. 2, North Hills, CA, and on or about April 10, 2018, a Notice of Default (NOD) was recorded by NATIONSTAR MORTGAGE, LLC, but Plaintiffs never were contacted about foreclosure alternatives as required under Civil Code Section §2923.5, and ultimately NATIONSTAR wrongfully foreclosed.

MP Positions

Moving party requests an order granting summary judgment against plaintiffs, on grounds including the following:

· Pursuant to the Court’s Order granting Defendant’s Motion to Deem Defendant’s First Set of Requests for Admissions to Plaintiffs Juan Bautista and Carmella Bautista, they admitted they had no loan modification application under review at the time any notice of default or notice of sale was recorded; Plaintiffs’ loan modification application was denied prior to the foreclosure sale and there was no application under review at that time; that Plaintiffs cannot state any claims against Defendant and have no documents to support their claims against Defendant; Plaintiffs have not suffered any injury-in-fact due to Defendant’s actions; Plaintiffs’ FAC is pure conjecture as to the conversation between Non-Profit Alliance of Consumer Advocates and Defendant; and that the foreclosure was held in compliance with applicable statute.

· The Opposition fails to rise a material issue of disputed fact as to any essential element of Plaintiffs’ claims. Plaintiffs failed to adequately address the vast majority of the arguments raised. Plaintiffs provide no evidentiary support for the Opposition and do not dispute almost all of the undisputed facts set forth in Defendant’s Separate Statement.

· Plaintiffs objected to the separate statement only to the extent that Plaintiffs argue they allegedly did not receive certain documentation, and attempt to rely on such conclusory statement to support some of the causes of action in the FAC. (Opp., sep. stmnt., ¶¶ 13, 20-21, 24.).

RP Positions

Opposing parties advocate denying, for reasons including the following:

· The alleged causes of action set forth in the operative Complaint are properly plead.

· Plaintiffs were diligent in applying for a loan modification review, but were prevented by NATIONSTAR from obtaining any real assistance, and lost their home.

· There was no denial letter, yet NATIONSTAR proceeded to schedule sale dates until a foreclosure sale on November 2, 2021.

· The HBOR statute has a requirement that a servicer may not record a notice of default (NOD) until 30 days after contacting the borrower to discuss alternatives to foreclosure. Contact is required 30 days before recording an NOD. E.g., Civ. C. §§ 2923.6, 2932.5. Many federal District Courts have found in other plaintiffs’ favor on such issues.

Tentative Ruling

The motion for summary judgment is granted.

The Court determines that moving party filed evidence shifting the burden of proof, including deemed admissions, and there are no triable issues of material fact, as to each issue raised, including whether there was no loan modification application under review and the foreclosure was in statutory compliance.

Instead of asserting disputes based upon admissible evidence, the opposing separate statement sometimes asserts disputes based on pages of the points and authorities. Further, the opposing separate statement is very equivocal about what correspondence was not received.

Once a moving party has satisfied the initial burden of proof, the burden “shifts to the opposing party to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.” Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411, 1418, disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal. 5th 156, 165.

Assertions in memoranda, which are unsupported by evidence, will not raise a triable issue of material fact. Lyons v. Sec. Pac. Nat’l Bank (1995) 40 Cal.App.4th 1001, 1014, modified 95 C.D.O.S. 9164. “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-84. “[O]pposing evidence that is merely equivocal will not suffice to raise a triable fact issue.” Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565, 1589. Accord Jane D. v. Ordinary Mutual (1995) 32 Cal. App. 4th 643, 654.

Regarding some applicable substantive law, lender advice directly related to loan modification, is within the scope of a conventional role as a lender, and does not support a lender duty in negligence. Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 207. “[W]hen a borrower requests a loan modification, a lender owes no tort duty sounding in general negligence principles to ‘process, review and respond carefully and completely to’ the borrower's application.” Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 948. Distinguishably, Biajanka factors supported a duty against lender defendants that had agreed to consider loan modifications, to timely and carefully process the applications, and to avoid mishandling them. See Alvarez v. Bac Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 948-51. See also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 118 (An opinion concluded that a bank owed borrowers a duty of care, with respect to a loan- modification process, applying the factors of Biakanja v. Irving (1958) 49 Cal.2d 647, 648.)

Finally, the opposition excessively relies on non-governing federal District Court rulings. But California courts are not bound to follow decisions of lower federal courts. People v. Sup. Ct. (2002) 103 Cal. App. 4th 409, 431.