Judge Malcolm Mackey, Case 22STCV07129 2023-04-28 Tentative Ruling

Judge: Malcolm Mackey, Case: 22STCV07129, Date: 2023-04-28 Tentative Ruling

Case Number: 22STCV07129 Hearing Date: April 28, 2023 Dept: 55

AVILA v. SPECIALIZED LOAN SERVICING 22STCV07129

Hearing Date: 4/28/23, Dept. 55

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

Notice: Okay

Opposition

MP: Defendants

RP:

Summary

On 2/28/22, Plaintiffs 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 plaintiffs 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 parties request an order granting summary judgment, of summary adjudication of claims, against plaintiffs, on grounds including the following:

· Plaintiffs admitted, by admission requested deemed admitted on 10/19/22, that they have no facts to support any of their ten causes of action. Plaintiffs have also admitted that they have suffered no damages.

· Plaintiffs fail to establish a triable issue of material fact on any of their failed statutory claims, because Plaintiffs fail to establish any wrongdoing by Defendants and fail to establish any defect with the foreclosure process.

· Plaintiffs defaulted on this loan in 2010. Plaintiffs applied for a loan modification in 2021, but were found ineligible. Because the loan remained in default, it was subject to foreclosure, which occurred in February 2022, nearly 12 years after Plaintiffs defaulted. The property was sold to a bona fide purchaser.

RP Positions

Opposing parties advocate denying, on bases including the following:

· Each claim of the Complaint alleges sufficient facts to state a cause of action.

· Due to negligent servicing of the loan modification request, plaintiffs lost their home, even though they submitted a complete package and fulfilled the requirements for assistance, even attempting to get caught up on payments, as clearly alleged in the Complaint.

Tentative Ruling

The motion is granted.

The Court determines that moving parties’ proof negates Plaintiff’s pleading, and there is no evidence or separate statement with the opposition in order to raise any triable issues of material fact, as to each issue raised, including whether defendants caused any wrongful foreclosure (e.g., Cynthia Wallace decl., ¶¶ 2 -13).

The opposing memorandum unhelpfully addresses the sufficiency of the allegations, instead of evidence that is the subject of a motion for summary judgment or adjudication.

Complaint allegations are not evidence, because pleadings are merely formal allegations. San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal. App. 4th 1736, 1744; Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal. App. 4th 220, 241.

“[I]f all the papers submitted by the parties show there is no triable issue of material fact and the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)), the court must grant the motion for summary judgment.” Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1320. Accord Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1409.

Finally, the opposition fails to discuss the effect of admission requests ordered deemed admitted.

Where a party never responded to requests for admissions, and never filed a motion for relief based on mistake, inadvertence or excusable neglect (CCP § 2033.280(a)(2)), an order deeming admitted the requests is conclusive, and may not be contested with evidence in dispute. People v. $2,709 United States Currency (2014) 231 Cal. App. 4th 1278, 1285–86 (citing St. Mary v. Sup.Ct. (2014) 223 Cal.App.4th 762, 775).