Judge: Robert P. Dahlquist, Case: 37-2022-00025674-CU-OR-NC, Date: 2023-11-03 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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SOUTH BUILDING TENTATIVE RULINGS - November 03, 2023
11/03/2023 01:30:00 PM N-29 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Robert P Dahlquist
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Civil - Unlimited Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2022-00025674-CU-OR-NC BIRD ROCK HOME MORTGAGE LLC VS BREAKING GROUND LP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/31/2023
Plaintiff Bird Rock Home Mortgage, LLC's motion for summary adjudication (ROA # 90) is denied.
Plaintiff's request for judicial notice dated July 31, 2023 (ROA # 94) is granted.
Plaintiff moves for summary adjudication of the first (declaratory relief), third (cancellation of instrument), fifth (set aside trustee's sale) and sixth (quiet title) causes of action on the basis that non-judicial foreclosure sales of HOA liens are not subject to the post-auction sales procedures of Civil Code § 2924m. Defendants Delphi Law Group, LLP and Breaking Ground, LP oppose the motion. ROA #'s 102 and 106.
Plaintiff's argument is as follows: Civil Code § 2924m only applies to non-judicial foreclosure sales based on mortgages and deeds of trust. HOA assessment lien sales are neither a mortgage nor a deed of trust. Therefore, defendant Delphi should not have extended bidding under § 2924m. The sale to Breaking Ground is void due to the improper extension the time for bidding after the auction.
Defendants argue: HOA assessment lien sales are subject to the provisions of § 2924m provisions.
Therefore, the sale was properly extended to allow for additional bidding.
This motion presents a legal issue pertaining to the applicability of Civil Code § 2924m to the foreclosure sale conducted in this case.
It appears that there are no published appellate decisions directly on point.
In the absence of directly controlling appellate authority, the court believes that the appellate case that comes closest to addressing the issue at hand is Huntington Continental Townhouse Assn., Inc. v Miner (2014) 230 Cal.App.4th 590, 605- 606. The court agrees with the argument, made by certain defendants in their opposition brief, that under the Huntington Continental case, all of the foreclosure statutes, including § 2924m, are applicable to nonjudicial foreclosure sales conducted by HOA's.
(Opposition Brief, ROA # 102, at pages 9 – 10) The Huntington Continental case quoted the language of Civil Code section 5710, which requires that 'any sale by the trustee' (quotation from the statute) 'shall be conducted in accordance with the Civil Code sections applicable to the exercise of powers of sale in mortgages and deeds of trust' (quotation from the judicial opinion). Huntington Continental, supra, 230 Cal.App.4th at 605 - 606.
While the Huntington Continental case does not specifically address the issue at hand, the court believes Calendar No.: Event ID: TENTATIVE RULINGS
3002883 CASE NUMBER: CASE TITLE: BIRD ROCK HOME MORTGAGE LLC VS BREAKING GROUND LP 37-2022-00025674-CU-OR-NC that the Court of Appeal's analysis in that case is applicable to resolve the issue here.
The court believes that defendants' arguments most closely align with the analysis of the Huntington Continental case, while plaintiff's arguments appear to be inconsistent with the analysis of that case.
Therefore, plaintiff's motion for summary adjudication is denied.
This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.
Calendar No.: Event ID: TENTATIVE RULINGS
3002883