Judge: Martha K. Gooding, Case: 21-01188818, Date: 2023-08-14 Tentative Ruling
Motion for Summary Judgment and/or Adjudication
The Motion by Defendants Fay Servicing, LLC’s (“FAY”), Cam X1 Trust (“CAM”), and Entra Default Solutions, LLC (“Entra Default”) (collectively “Defendants”) for summary judgment on Plaintiff Urbana Foote’s Second Amended Complaint (“SAC”) is granted.
Evidentiary Objections
Plaintiff’s evidentiary objections are all overruled. They do not comply with CRC Rule 3.1354, which provides that the objections must follow one of two specified formats and:
…Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:
(1) Identify the name of the document in which the specific material objected to is located;
(2) State the exhibit, title, page, and line number of the material objected to;
(3) Quote or set forth the objectionable statement or material; and
(4) State the grounds for each objection to that statement or material.
The objections are not formatted correctly. They are not numbered or organized in such a way that the objectionable statements are identified and reproduced.
Alternatively, the objections are overruled on the merits.
Defendants’ objections are overruled as to Nos. 1-31, 48-61, and 63-67. There is no legal support for objections to portions of a separate statement or to another party’s objections.
Defendants’ objections numbered 32-47, 62, and 69 are sustained. Nos. 68 and 70 are overruled.
Requests for Judicial Notice
Defendants’ request for judicial notice of Exs. A-E is granted.
Plaintiff’s request for judicial notice is granted as to Ex. 1 and denied as to Exs. 2-4.
Summary Judgment Standard
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)
Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Discussion
As an initial matter, the Court notes that Plaintiff’s separate statement is defective. Plaintiff does not state whether the facts are disputed or undisputed. She also does not cite to any evidence in the separate statement.
Pursuant to CCP section 437c(b)(3), the opposition papers must include a separate statement responding to each of the material facts the moving party contends to be undisputed, and identifying any other material facts the opposing party contends are disputed. Each material fact must be followed by a reference to supporting evidence. (See also Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115 (“Without a separate statement of undisputed facts with references to supporting evidence … it is impossible … to demonstrate the existence of disputed facts”); Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal.App.5th 126, 131, fn. 1 (opposition separate statements must cite to facts and evidence for evidence to be considered by court).)
Given that Plaintiff failed to file a proper separate statement, she does not meet her burden, as the opposing party, to establish any triable issues of material fact.
First Cause of Action for Wrongful Foreclosure
The elements of a wrongful foreclosure cause of action are: (1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal. App. 5th 943, 948.)
Defendants’ evidence includes declarations from Reilly Wilkinson (counsel), Katie Milnes (VP of Entra Default) and Janet Gioella (FAY Litigation Representative).
Wilkinson authenticates evidence showing that Plaintiff and her husband were aware of and had notice of the foreclosure sale. Specifically, documents filed in the bankruptcy action, including Plaintiff’s own declaration and an application for stay, show this. (Wilkinson Decl., ¶ 2)
Katie Milnes is a Vice President of Entra Default, and also the Custodian of Records. (Milnes Decl., ¶ 1.) She provides evidence that an Assignment of Deed of Trust was recorded on 6/19/12 evidencing that CAM was the current payee under the loan via a promissory note previously executed by Plaintiff and her husband, and that the loan was secured by a first deed of trust on the property. (Milnes Decl., ¶ 2, Exs. A-C.) Because the loan was delinquent, Entra Default recorded a notice of default and election to sell. The notice of default shows all mailings required under Civil Code section 2924 et seq. were sent. (Milnes Decl., ¶ 3, Ex. D.) After Plaintiff failed to cure the default, on 2/16/21, Entra Default recorded a Notice of Trustee’s Sale, which shows all mailings required under Civil Code section 2924 et seq. were sent. (Milnes Decl., ¶ 4., Ex. E.) Due to Plaintiff’s bankruptcy filings, the foreclosure sale had to be continued multiple times. (Milnes Decl., ¶¶ 5-6, Exs. F-G.) The foreclosure sale occurred on 10/19/21, which was the date noticed by Entra Default; the property was sold to CAM Trust. (Milnes Decl., ¶ 7, Ex. H.)
Janet Gioello is a Litigation Representative of Fay Servicing, LLC, and also the Custodian of Records for FAY. (Gioello Decl., ¶ 1.) She states that FAY was the previous loan servicer on a $544,000 loan made to Plaintiff, secured by a deed of trust on the subject property. The deed of trust was assigned to CAM on 6/5/20 pursuant to an Assignment of Deed of Trust recorded on 6/19/12. The deed of trust was foreclosed on 12/6/21 on behalf of CAM. (Gioella Decl., ¶ 2, Ex. A.)
Ms. Gioello authenticates the 11/12/19 transfer of loan to US Bank (the prior lender and CAM’s predecessor) dated 11/12/19; the June 2020 transfer of loan to CAM and notice of same that was sent to Plaintiff; evidence of FAY’s attempts to contact Plaintiff regarding the delinquency on the loan and potential foreclosure alternatives via telephone and letters; Entra Default’s substitution as foreclosure trustee and its notice of default; and a copy of the Trustee’s Deed upon Sale of the Property. (Giogello Decl., ¶¶ 4-8, Exs. B-L.)
This evidence contradicts Plaintiff’s allegations in the Second Amended Complaint that FAY and CAM fraudulently concealed the foreclosure sale (SAC, ¶ 57); the sale was illegal (SAC, ¶ 58); the substitution of trustee naming Entra Default was fraudulent (SAC, ¶¶ 71, 92); Plaintiff was not given proper notice of the sale (SAC, ¶ 88); and Plaintiff was not contacted to discuss foreclosure alternatives (SAC, ¶ 91).
In addition, given the evidence, Plaintiff cannot show prejudice, which is an essential element of this claim.
The second
element--prejudice--is met where an irregularity in the proceeding adversely
affects the trustors' ability to protect their interest in the property.
“Prejudice,” however, “is not presumed from ‘mere irregularities’ in the
process.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th
256, 272, 129 Cal.Rptr.3d 467 [slight defects in timing of notice of sale and
in statement of date of default were not prejudicial].)
(Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 11; see also Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 48–49 (finding no prejudice where it was undisputed that plaintiffs defaulted on their loan and plaintiffs could not show that the foreclosure sale would have been averted but for the alleged deficiencies in the foreclosure process).)
Furthermore, Plaintiff’s allegations of forged signatures do not establish a wrongful foreclosure in light of case law that holds that where there is an unauthorized assignment, the beneficiary suffering the loss of the loan is the injured party, not the debtor. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271-72; 7 Cal.Jur.3d (2011) Assignments, § 43, p. 70; Jenkins v. JPMorgan Chase Bank (2013) 216 Cal.App.4th 497, 514-515.)
Based on the above, the Court finds that Defendants have shown that there are no triable issues of fact as to Plaintiff’s claim of wrongful foreclosure.
Second Cause of Action for Cancellation of Instrument
An action may be brought to cancel a written instrument that is void or voidable when there is a reasonable apprehension that if it is left outstanding it may cause a serious injury. (Civ. Code, § 3412; Thompson v. Ioane (2017) 11 Cal. App. 5th 1180, 1193–1194.)
Defendants submit evidence of valid assignments and transfers, as well as substitutions of trustees. (Gioella Decl., ¶¶ 1-8, Exs. A-L, Defendants’ RFJN, Ex. A-C.)
Plaintiff fails to submit any admissible evidence to contract this or to support her allegations in the SAC that a number of documents related to her claims (all the assignments, substitutions of trustee, notices, etc.) were forged or are fraudulent. (SAC, ¶¶ 113-114.)
In addition, Plaintiff does not submit evidence of “serious injury,” as her obligations under the Note (regardless of the alleged fraudulent and void actions) would remain unchanged. (See Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 819.)
As a result, there are no triable issues of fact with respect to Plaintiff’s Second Cause of Action.
Third Cause of Action for Quiet Title
The elements of quiet title are: (1) plaintiff's title and its basis (2) the existence of adverse claims to that title. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1010.)
As discussed above, there are no triable issues of fact with respect to the wrongful foreclosure cause of action. It is not disputed that CAM has proper title. Based on that, Plaintiff cannot establish she has title to the property, and her quiet title claim fails.
Fourth Cause of Action for Violation of Civil Code Section 2924f
Civil Code Section 2924f provides that before any sale of a property can be made, notice shall be posted at least 20 days before the date of the sale.
Defendants have submitted evidence demonstrating they complied with section 2924f. (See Milnes Decl., ¶¶ 4, 6, Ex E (shows both the posting of the Notice and publication in the Fullerton News Tribune).)
Plaintiff does not controvert this. Thus, there are no triable issues of material fact as to this cause of action.
Fifth Cause of Action for Violation of the HBOR, Civil Code Section 2923.5
Civil Code section 2923.5 provides that before recording a notice of default, the mortgage servicer shall contact the borrower and provide options for avoiding foreclosure.
Defendants have submitted evidence that this was done. Specifically, Gioella declares there were multiple attempts to contact Plaintiff in accordance with section 2923.5. (Gioella Decl., ¶¶ 4-6, Ex. D-E, G.)
Plaintiff’s (late-filed) declaration, in which she states she did not receive a certified letter, does not create an issue of material fact. There is evidence that such a letter was sent. (Civ. Code, §§ 2923.55(b)(2), (f).)
As a result, there are no triable issues of fact as to whether Defendants violated Civil Code section 2923.5.
Sixth Cause of Action for Unfair Business Practices
The Sixth Cause of Action incorporates all prior paragraphs (Compl. ¶ 177) and alleges that each of the Defendants engaged in certain listed “deceptive business practices.” (Id. ¶ 179.)
Because all of Plaintiff’s other claims fail, the UCL claims fail as well. (See Wolski v. Fremont Investment and Loan (2005) 127 Cal.App.4th 347, 357 [a cause of action for violation of Bus. and Prof. Code § 17200 fails where it is predicated on a violation of law that also fails]; Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 [same]; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182 [“A bar against an action may not be circumvented by recasting the action as one under Business and Professions Code section 17200.”].)
Based on the foregoing, the Court grants Defendants’ motion for summary judgment.
Defendant are ordered to give notice.