Judge Malcolm Mackey, Case 22STCV07129 2022-10-20 Tentative Ruling

Judge: Malcolm Mackey, Case: 22STCV07129, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV07129 Hearing Date: October 20, 2022 Dept: 55

AVILA v. SPECIALIZED LOAN SERVICING 22STCV07129

Hearing Date: 10/20/22, Dept. 55

#7: MOTION FOR CONSOLIDATION OF CASES.

Notice: Okay

No opposition

MP: Plaintiff

RP:

Summary

On 2/28/22, Plaintiff MAYRA AVILA filed a Complaint alleging: The third assignee of the Deed of Trust as to a loan, Defendant SPECIALIZED LOAN SERVICING, LLC, offered Plaintiff no alternatives to home foreclosure, and denied her a short sale. Defendant MEB LOAN TRUST 11, U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE, failed to advise Plaintiff in writing within 30 days that the Deed of Trust was assigned to a third party, and that it is the new owner or assignee of the debt, in violation of Title 15 U.S.C. § 1641(g).

The causes of action are:

1. VIOLATION OF CIV. CODE § 2923.5;

2. VIOLATION OF CIV. CODE § 2924(a)(1);

3. VIOLATION OF CIV. CODE § 2923.6(c);

4. VIOLATION OF CIV. CODE § 2923.7;

5. VIOLATION OF CIV. CODE § 2924.9;

6. VIOLATION OF CIV. CODE § 2924.10;

7. WRONGFUL FORECLOSURE;

8. INTERPLEADER PURSUANT TO CODE CIV.PROC. §386, CIV. CODE §§ 2924j AND 2924k;

9. UNFAIR BUSINESS PRACTICES, VIOLATION OF BUS. & PROF. CODE § 17200, ET SEQ.;

10. CANCELLATION OF WRITTEN INSTRUMENTS, CIV.CODE § 3412.

MP Positions

Moving party requests an order consolidating this case with an unlawful detainer case, No. 22PDUD00560, on grounds including the following:

· Plaintiff will suffer irreparable injury without the benefit of discovery procedures normally available to litigants in other civil actions.

· This action is a civil proceeding affecting ownership to the subject real property, which is the subject property in the unlawful detainer case.

· The only triable issue in an unlawful detainer proceeding is the right to possession of the premises along with any damages that result from the unlawful detention.

· Alternatively, the Court should explore other options including the option to sever and separately try the issue of title and wrongful foreclosure to the real property in this action.

Tentative Ruling

The motion is denied.

“Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.” L.A.S.C.L.R. 3.3(g)(1).

An order determining whether to consolidate is discretionary. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App. 4th 976, 978.

Courtrooms assigned to specialize in unlawful detainer actions are well suited, with the skills and resources for expedited handling when statutorily required, and are authorized to address foreclosure-related challenges to title. " 'Unlawful detainer is a unique body of law and its procedures are entirely separate from the procedures pertaining to civil actions generally.' ” Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1424.

Because of the summary nature of unlawful detainer proceedings, ordinarily affirmative defenses may not be asserted, except ones that are directly relevant to the issue of entitlement to possession. Fish Constr. Co. v. Moselle Coach Works (1983) 148 Cal. App. 3d 654, 658.

In unlawful detainer actions, lessees may litigate issue of title based upon statutory provisions related to foreclosures. Old Nat’l Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465; Cal. Livestock Prod. Credit Ass'n v. Sutfin (1985) 165 Cal. App. 3d 136, 141 n.2. An exception to the general rule that title cannot be tried in unlawful detainer involves certain purchasers of property, where property was sold under a power of sale contained in a deed of trust. Malkoskie v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 973.

“[H]omeowners cannot be evicted, consistent with due process guaranties, without being permitted to raise the affirmative defenses which if proved would maintain their possession and ownership.” Asuncion v. Sup. Ct. (1980) 108 Cal.App.3d 141, 146 (“Accordingly, title to the property is inevitably in issue in this unlawful detainer action,…”). Trying title in the unlawful-detainer action was required, after denial of a motion to consolidate a tenant’s case placing title in issue. Greenhut v. Wooden (1982) 129 Cal. App. 3d 64, 70. See also Teich v. Arms (1907) 5 Cal. App. 475, 479 (tenants may show the landlord's title expired after the beginning of the lease). Homeowners cannot be evicted without being accorded some type of procedural due process (e.g., consolidating actions, or staying unlawful detainer), as to raising issues which, if proved, would show their possession and ownership. Old Nat’l Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 466. Where issues of title are complex, then an unlawful detainer action properly is treated as an ordinary civil action, but would be improperly handled as a summary proceeding. Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 389-95.