Case Number: 20STCV32233    Hearing Date: August 23, 2022    Dept: 49

Gabriel Mardelli v. Nationstar Mortgage, et al.

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:               Defendant Nationstar Mortgage LLC

RESPONDING PARTY(S): Plaintiff Gabriel Mardelli (unopposed)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff Gabriel Mardelli signed a Mortgage Note secured by a Deed of Trust with Bank of America on June 26, 2009.  That Deed of Trust was then transferred to Defendant Nationstar Mortgage LLC.  Plaintiff alleges he fell behind on his mortgage payments and Defendant recorded a Notice of Default. While Plaintiff was out of town, he alleges Defendant changed the locks on the property and hired movers to remove items from Plaintiff’s property.  Plaintiff alleges that on June 4, 2020, Defendant sold Plaintiff’s property at a Non-Judicial Foreclosure sale, in violation of the Sallie Mae/Freddie Mac foreclosure moratorium on loans backed by their firm.  Plaintiffs asserts causes of action for (1) Wrongful Foreclosure, (2) Claim and Delivery, (3) Monies Had and Received, and (4) Conversion.

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiff has not opposed the motion.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is GRANTED.

Defendant’s Alternative Motion Summary Adjudication is MOOT.

The current FSC (9/14/22) and Trial Date (9/21/22) is ADVANCED AND VACATED.

Moving party to give notice.

DISCUSSION:

Motion for Summary Adjudication

I.                    Evidentiary Objections

There are no objections to evidence submitted.

II.                 Judicial Notice

Pursuant to Defendant’s request, the court takes Judicial Notice of Defendant’s Exhibits 1 through 6.

III.              Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak.  Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.  

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2).

Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication.  Code Civ. Proc. § 437c(o)(1)-(2).  A defendant meets its burden by showing that “one or more elements of a cause of action . . . cannot be established.”  Id.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.  Parol evidence cannot be used to supply unwritten details of an arrangement between the parties.  Friedman v. Bergin (1943) 22 Cal.2d 535, 539.

When a defendant moves for summary judgment or adjudication on the basis of an affirmative defense, the defendant has the burden of establishing the undisputed facts support each element of the affirmative defense.  Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-68.

IV.              Analysis

As framed by the pleading, Plaintiff Gabriel Mardelli signed a Mortgage Note secured by a Deed of Trust with Bank of America on June 26, 2009.  (Compl. 15.) That Mortgage was backed by Sallie Mae/Freddie Mac. (Id. 16.) Subsequently, the Deed of Trust was transferred to Defendant Nationstar Mortgage LLC.  (Id. 15.) Plaintiff alleges he fell behind on his mortgage payments and Defendant recorded a Notice of Default. (Id. 17.)  While Plaintiff was out of town, he alleges Defendant changed the locks on his property and hired movers to remove items from the property. (Id. 21, 22.) Plaintiff alleges that on June 4, 2020, Defendant sold Plaintiff’s property at a Non-Judicial Foreclosure sale, in violation of the Sallie Mae/Freddie Mac foreclosure moratorium on loans backed by their firm.  (Id. 23.) Plaintiff further asserts that the sale yielded monies that exceeded the amount that was owed to Defendants.  (Id.)

On December 8, 2021, Defendant served Plaintiff with its First Set of Requests for Admission (“RFAs”). (SUF ¶ 19.) Plaintiff’s responses were due no later than January 11, 2022. Plaintiff did not respond to the RFAs. (SUF ¶ 21.) On January 18, 2022, Defendant filed a motion to have the Court deem the RFAs admitted. (SUF ¶ 22.) The Court granted this motion on February 24, 2022.  Defendant served notice of the Court’s ruling on March 15, 2022. (SUF ¶ 24.)  

Based on this fact, Defendant asserts that Plaintiff admits that he has suffered no injury as a result of any actions or inactions on the part Defendant, and that Plaintiff has no evidence that Defendant is in possession of any excess funds resulting from the Trustee Sale. (SUF ¶ 25, 28.) Further, Plaintiff admits that he has no viable claims against Defendant for any of the causes of action set forth in the Complaint and that he is not entitled to either monetary or equitable relief. (SUF ¶ 26, 30.)  

1.      First Cause of Action (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.’ ” [Citation.] (Sciarratta v. U.S. Bank Nat'l Assn. (2016) 247 Cal. App. 4th 552, 561–62.)

Plaintiff claims the June 4, 2020, Trustee Sale was illegal because (a) Defendant violated “California Civ. Code §2933.55 by failing to designate an authorized agent to contact the borrower in person or via telephone to assess the borrower’s financial situation prior to foreclosing against the PROPERTY,” and “California Civ. Code § 2933.6 [and] § 2933.7” for failing to establish a single point of contact to discuss with Plaintiff alternatives to foreclosure.[1] (Compl. ¶¶ 27, 28.) 

Section 2923.55 requires lenders to contact—or attempt to contact—a borrower facing foreclosure prior to filing a notice of default. (Civ. Code, § 2923.55.) The lender “shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure” or otherwise try “with due diligence to contact the borrower as required by this section.” (Id.) Defendant presents evidence that on October 23, 2019, CRC recorded the Notice of Default against the Subject Property indicating that Defendant tried with due diligence to contact Plaintiff regarding the Loan to discuss loss mitigation options.  (SUF ¶ 10.)

The Civil Code also requires that “upon request from a borrower who 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.)  

Defendant presents evidence that it assigned a single point of contact as early as April 2019, and updates were sent in May 2019, October 2019, December 2019, February 2020, March 2020, and April 2020. (SUF ¶ 8.)

Defendant also argues the federal foreclosure moratorium did not apply to vacant or abandoned properties, and that Plaintiff’s property was vacant.  Defendant presents evidence that at the time of the foreclosure, the Subject Property had been vacant for several months, as verified on January 16, 2020, February 18, 2020, March 17, 2020, April 22, 2020, and May 15, 2020.  (SUF ¶ 13.)

Finally, Defendant argues Plaintiff has admitted to suffering no damages.  Plaintiff admitted that he did not suffer “any injury in fact” or “loss of any income or property” due to the acts or omissions by Defendant. (SUF ¶ 25.)

Based on the above, Defendant has met its initial burden to establish it is entitled to judgment as a matter of law.  This shifts the burden to Plaintiff to establish the existence of a dispute of material fact.  By failing to oppose, Plaintiff has not met his burden.

2.      Second Cause of Action (Claim and Delivery); Third Cause of Action (Monies had and Received); Fourth Cause of Action (Conversion)[2]

Plaintiff’s causes of action for claim and delivery, conversion, and monies had and received are all based on the alleged surplus of funds Defendant possessed after the foreclosure sale.

The elements of conversion are “(1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]” (Regent All. Ltd. v. Rabizadeh (2014) 231 Cal. App. 4th 1177, 1181.) An action for claim and delivery is a provisional remedy that is an alternative to a damages action for conversion. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 651, pp. 107–108.) It is a method of recovering property that is wrongfully being withheld by another. (Ibid.) The elements of such a claim are (1) the plaintiff's right to possession of the property; (2) the defendant's wrongful possession; and (3) damages as a result of the wrongful withholding. (Id. at § 651, pp. 109–110, §§ 653–659, pp. 111–115.)  The only difference between the elements of claim and delivery and conversion is the remedy sought. (5 Witkin, supra, Pleading, § 651, p. 109.) The essential elements for an action for monies had and received are: (1) statement of indebtedness of a certain sum, (2) the consideration made by plaintiff, and (3) non-payment of the debt. 4 WITKIN, CAL. PROCEDURE Pleading, § 508.

Defendant first argues the claim and delivery and conversion causes of action fail because there is no specific sum of money in dispute. (Tsai v. Wang (N.D. Cal. June 14, 2017, No. 17-cv-00614-DMR) 2017 U.S. Dist. LEXIS 91797, at *38 [“as a rule, money is not the subject of [a claim and delivery action] unless it be marked or designated in some manner so as to make it specific as regards its capability of identification.”]; Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 235 [plaintiff card players could not identify specific sums of money that a gambling club had unlawfully converted from them by allegedly allowing other card players to cheat at the club].) 

The specific sum in dispute here is the surplus of funds purportedly arising from the foreclosure sale that exceeds the amount owed to Defendant under the deed of trust.  This court notes that unlike the authority cited by Defendant, the amount in question here could be specifically identified.  Thus, Defendant’s first argument is unconvincing.

Defendant next argues Plaintiff has admitted that he has no facts to support the allegation that Defendant is in possession of any surplus funds from the Trustee Sale. (SUF ¶ 28.) Further, Defendant says it is not in possession of any excess funds from the Trustee Sale. (SUF ¶ 18.) After the Trustee Sale, Defendant received a check from CRC in the amount of $273,568.37. (SUF ¶ 17.) Moreover, Defendant says this was the amount due on the loan at the time of the Trustee Sale. (Id.)  Thus, Defendant presents evidence there is no surplus.  (Id.) Defendant also notes that Plaintiff has admitted that he suffered no damages by admitting that he did not suffer “any injury in fact” or “loss of any income or property” due to the acts or omissions by Defendant.  (SUF ¶ 25.)

Finally, regarding Plaintiff’s allegations that Defendant sent movers to the property, Defendant denies that it hired any movers to enter the Subject Property and remove Plaintiff’s personal property. (SUF ¶ 7.) Defendant also notes that Plaintiff admits that he has suffered no “loss of…property.” (SUF ¶ 25.) 

Based on the above, Defendant has met its initial burden to demonstrate it is entitled to judgment as a matter of law on each cause of action. Plaintiff has not opposed the motion, and thus, has not established the existence of a dispute of triable fact.

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   August 23, 2022                                            ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.