Judge: Stephen I. Goorvitch, Case: 20STCV31991, Date: 2022-07-27 Tentative Ruling

Case Number: 20STCV31991    Hearing Date: July 27, 2022    Dept: 39

Harry Abramson, et al. v. Wells Fargo Bank, N.A., et al.

Case No. 20STCV31991

Plaintiffs’ Motion to Set Aside Dismissal

            Plaintiffs Harry Abramson and Lynn Abramson (“Plaintiffs”) filed this action following the foreclosure of their property.  On May 9, 2005, Plaintiffs entered into a written loan agreement with Wells Fargo Bank, N.A. (“Wells Fargo”) for $776,250, secured by a deed of trust on the property.  (Complaint, ¶ 6.)  Due to financial difficulties with Plaintiffs’ business, they sought to modify the terms of their loan in or about 2016.  (Id., ¶¶ 7-8.)  In May 2016, Wells Fargo denied the request for modification based in part on an “NPV” calculation.  (Id., ¶ 9.)  In July 2016, Plaintiffs’ agent requested verification of the amount owed and details on the NPV calculation, but neither request was answered.  (Id., ¶¶ 9-10.)  On or about August 10, 2016. Wells Fargo advised Plaintiffs’ agent that they would stop the foreclosure and grant a loan modification if they made a principal payment of $300,000.  (Id., ¶ 11.)  Plaintiffs prepared a new loan modification proposal, but it was rejected.  (Id., ¶¶ 11-12.)  Plaintiffs’ agent called Wells Fargo, and its representative said that a mistake had been made.  (Id., ¶ 12.)  Wells Fargo’s representative advised Plaintiffs to submit a new loan modification package, which they did.  (Id., ¶ 13.)  Wells Fargo’s representative represented that the foreclosure sale, set for August 29, 2016, would be canceled.  (Id., ¶ 13.)  The foreclosure sale proceeded on August 29, 2016.  (Id., ¶ 1.) 

Plaintiffs filed this action on August 21, 2020, asserting the following causes of action: (1) Violation of the homeowners’ bill of rights, (2) Violation of the rules under the Dodd-Frank Act, (3) Breach of contract, (4) Breach of the duty of good faith and fair dealing, (5) Fraudulent conduct, (6) Violation of the provisions of the Truth in Lending Act and the Real Estate Settlement Procedures Act, and (7) Unfair competition in violation of Business and Professions Code, section 17200.  Defendants demurred arguing primarily that the claims are time-barred.  Defendants filed a reply brief referencing an untimely opposition by Plaintiffs.  No opposition brief was filed with the Court. 

The Court posted a tentative order sustaining the demurrer without leave to amend two days in advance of the hearing.  (See Court’s Minute Order, dated April 14, 2021.)  The Court provided notice: “Any party who does not appear at the hearing shall waive the right to be heard and shall submit to entry of this order.”  (Ibid.)  The hearing was noticed for April 14, 2021, at 9:00 a.m., but Plaintiffs did not appear.  (Ibid.)  The Court held the case until the end of the calendar, which was 9:45 a.m., but Plaintiffs still had not appeared.  (Ibid.)  Therefore, the Court adopted the tentative order and sustained the demurrer without leave to amend. 

On May 10, 2021, Plaintiffs filed a Notice of Appeal.  On July 13, 2021, the District Court of Appeal for the Second District dismissed the appeal.  The remitter issued on September 15, 2021.  Then, on April 20, 2022, Plaintiffs filed the instant motion to set aside the dismissal.  The motion states:

The Plaintiffs move to vacate the prior dismissal of May 5, 2021 based on equitable principals [sic] which the defendant violated with its outrageous conduct and lies that resulted in the plaintiffs losing their home of many years and substantial equity.

(Plaintiffs’ Motion, p. 1.)  The motion provides no basis to set aside the dismissal. 

Nor does the Court have authority to do so.  Per Code of Civil Procedure section 473, subdivision (b), a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).)  The party must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) 

            The Court dismissed this case on April 14, 2021.  The District Court of Appeal issued its remitter on September 15, 2021.  This motion was filed on April 20, 2022, which is over six months from the Court’s order dismissing the case and the District Court of Appeal’s order returning jurisdiction to this case. 

            Based upon the foregoing, Plaintiffs’ motion is denied.  Defendant’s counsel shall provide notice and file proof of such with the Court.