Judge: Thomas Falls, Case: 21PSCV00055, Date: 2022-09-02 Tentative Ruling

Case Number: 21PSCV00055    Hearing Date: September 2, 2022    Dept: R

Defendant AFGIS ASSET BACKED SECURITIES, LLC’S ("AFGIS") Motion to Expunge Lis Pendens

Responding Party: Unopposed

Tentative Ruling

All matters are stayed pending appeal.

Background

This is a wrongful foreclosure case. Plaintiff Ih Heen Chang (“Plaintiff”) alleges the following against Defendants Aegis and Ashwood TD Services, LLC (“Defendant Ashwood”): In 2018, Plaintiff entered into a written loan agreement wherein she secured $50,000 secured by the Property. Plaintiff fell behind on her payments. On January 8, 2020, a Notice of Default (“NOD”) and Election to Sell Under Deed of Trust was recorded on the Property. On April 14, 2021, Ashwood recorded a Notice of Trustee’s Sale, setting a trustee’s sale for May 7, 2020. On April 28, 2020, filed for Chapter 13 Bankruptcy. During the course of bankruptcy, Plaintiff made payments to Aegis. The bankruptcy was dismissed on September 10, 2020. Plaintiff and Aegis agreed that if Plaintiff increased the balance owed to $8,000, Aegis would agree to a loan modification. Ashwood proceeded with a foreclosure sale on September 15, 2020. Plaintiff never received notice of this date. On September 23, 2020, Defendant Ashwood, on behalf of Aegis, recorded a Trustee’s Deed Upon Sale. The basis of Plaintiff’s action against Defendants is that:

Because Defendants and its authorized representatives failed to comply with the requirements of the Notice of Default provisions of California Civil Code section 2924, et seq. by not notifying Plaintiff that Defendant had changed its prior trustee under its Deed of Trust, and the Notice of Sale provisions of California Civil Code section 2924, et seq., were violated as she did not receive proper notice of the September 15, 2020 sale date. There was no subsequent incidental right to enforce any deed of trust and proceed with a non-judicial foreclosure. Further, pursuant to California Civil Code section 2923.5, a trustee may not file a Notice of Default pursuant to California Civil Code section 2924, et seq., until thirty (30) days after satisfying the due diligence requirements outlined above. As Plaintiff was never contacted by ASHWOOD TD SERVICES, LLC, the beneficiary, or their agents, they failed to comply with California Civil Code sections 2923.5 and 2924 et seq., and the recorded Notice of Default on Plaintiff’s Property is void.

(First Amended Complaint (“FAC”) ¶¶26, 27) (emphasis added).

On January 22, 2021, Plaintiff filed suit against Defendants and Doe Defendants for:

1.      Wrongful Foreclosure

2.      Promissory Estoppel

3.      Fraud and

4.      Negligent Misrepresentation

5.      Unfair Business Practices

On March 17, 2021, the court sustained with leave to amend Defendant Aegis’s Demurrer to Plaintiff’s Complaint.

On April 5, 2021, Plaintiff filed her First Amended Complaint (“FAC”).

On December 29, 2021, Plaintiff filed a Substitution of Attorney.

On April 15, 2022, Defendant Aegis filed the instant Motion for Summary Judgment (“MSJ”), which the court granted on July 7, 2022.

On July 22, 2022, Plaintiff filed a Notice of Appeal (regarding the MSJ).

On August 1, 2022, Defendant filed its Motion to Expunge the Lis Pendens.

On August 11, 2022, a ‘Notice of Filing of Notice of Appeal was filed.’

Discussion

As Plaintiff has filed a notice of appeal on Defendant’s MSJ, all matters are stayed pending appeal.