Warner vs. Select Portfolio Servicing Inc

Opposition

Cal. Super. - 4th Dist.March 11, 2016

ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 4 \ O 0 1 O N Wn STEPHEN R. GOLDEN & ASSOCIATES Stephen R. Golden, SBN 163366 600 N. Rosemead Blvd., Suite 100 Pasadena, California 91107 P: (626) 584-7800 F: (626) 568-3529 Email: businesslaw@stephengoldenlaw.com Attorneys for Plaintiffs SHEILA M. WARNER aka Sheila M. Mendoza aka Sheila M. Mendoza Warner, and E L E C T R O N I C A L L Y FI LE D Su pe ri or Co ur t of Ca li fo rn ia Co un ty of Or an ge 05 /0 8/ 20 17 at 02 :0 8: 00 PM Cl er k of th e Su pe ri or Co ur t By Gi ov an ni Ga lo n, De pu ty Cl er k RICHARD N. WARNER aka Richard N. Mendoza SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE SHEILA M. WARNER a/k/a Sheila Mendoza Warner, aka Sheila M. Mendoza Warner, an individual; and RICHARD N. WARNER, a/k/a Richard N. Mendoza an individual, Plaintiff, Vs. SELECT PORTFOLIO INC. , a Corporation; U.S. BANK NATIONAL ASSOCIATION, as Trustee, ON BEHALF OF THE HOLDERS OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES AEG 2006-HE1 ASSET BACKED PASS- THROUGH CERTIFICATES, SERIES AEG 2006-HE1; ALL PERSONS UNKNOWN CLAMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE REAL PROPERTY KNOWN AS “16576 Daisy Ave. Fountain Valley, CA 92708”; and DOES 1 to 50, inclusive SERVICING, Defendants. 1 Case No. 30-2016-00840517-CU-OR-CJC [Unlimited Civil Jurisdiction] PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES [Filed concurrently with Plaintiffs’ 1. Separate Statement of Disputed Fact; 2. Declaration of Sheila M. Warner in Opposition to Motion for Summary Judgment; 3. Declaration of Warner in Opposition to Motion for Summary Judgment; and 4. Evidentiary Objections to Declaration of Rebecca Adelman.] DATE: MAY 22,2017 TIME: 9:00 A.M. DEPT.: CX103 Complaint Filed: December 4, 2015 Trial Date: July 17, 2017 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 (Hon. Ronald L. Bauer) MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTION This case involves a claim against the Defendants by Plaintiffs for failure to comply with Civil Code Section 2923.55 by failing to contact them thirty days prior to proceeding with foreclosure in order to discuss foreclosure alternatives and advise Plaintiffs of their right to a loss mitigation meeting within 14 days. Plaintiff has also alleged that Defendants have violated Business & Professions Code Section 17200 by the failure to comply with the pre-notice foreclosure requirements of Civil Code Section 2923.55. The issue is fairly limited and the primary disputed facts are whether Defendants contacted Plaintiffs and discussed the requirements as they contend they have but which Plaintiffs dispute by claiming they never received the alleged letter from Defendants dated August 31, 2015, nor were they ever advised during the March 30, 2015 telephone call of their Section 2923.55 rights, or did they ever receive the telephone call of September 30, 2015, wherein Defendants allege that they discussed foreclosure alternatives, and other matters, with Plaintiffs. II. STATEMENT OF FACTS This action arises out of unlawful acts related to the Subject Property, located in the State of California, with a legal address of 16576 Daisy Avenue, Fountain Valley, CA 92708 (the “PROPERTY™). On or about May 16, 2006, a Deed of Trust was recorded, which named Plaintiff as Trustor, COUNTRYWIDE HOME LOANS, INC. as Lender, and RECON TRUST COMPANY, a National Association, as Trustee. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (“MERS”) is named as Nominee for Lender and Lenders successor’s and assigns. MERS is also named as Beneficiary under this instrument. Plaintiff 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 alleges at some point during the subsequent years, COUNTRYWIDE’s interest in Plaintiff's mortgage was transferred to Defendant BANK OF AMERICA. On or about 2011, Plaintiff, an employee of the State of California, suffered from statewide budget cuts and had his salary reduced and reduced again, making it difficult for him to continue making his mortgage payments. On February 2, 2011, Plaintiffs obtained a Loan modification under the Home Affordable Modification Program(“Hamp”), which was recorded on March 4, 2011. Due to the modification, the July 2, 2010 Notice of Default was rescinded on February 16, 2011. On or about 2012, Plaintiff continued to suffer financial difficulties, when reduced work hours, furlough days, and the elimination of overtime opportunities, and had no choice but to file for bankruptcy. On November 25, 2015, a new and second Notice of Default was recorded against Plaintiffs’ property. Subsequent to the recording the original Default on July 2, 2010, and the recording of the new Notice of Default on November 25, 2015, a period of over 5 years and 4 months, Plaintiffs’ contend that Defendants never contacted them to discuss their alternative to foreclosure pursuant to Civil Code Section 2923.55. III. PROCEDURAL HISTORY This case was originally filed on December 4, 2015 in this Court but was removed by Defendants to Federal Court before it was remanded back to this Court. After a series of demurrers by Defendants the operable pleading is the Third Amended Complaint which, by stipulation between the parties, contains two causes of action, one for violation of Civil Code Section 2923.55 for failure to contact Plaintiffs to discuss foreclosure alternative thirty days prior to proceeding with foreclosure proceedings, and a cause of action for violation of Business & Professions Code, Section 17200 for unlawful or unfair business practices. The case is currently set for trial on July 17, 2017, and set for a Mandatory Settlement Conference on June 16, 2017. IV. STANDARD OF REVIEW “In order to prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff’s case or establish a complete defense. [Citation.] *** ~ 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 oN ~ O N Wn Pa sa de na , Ca li fo rn ia 91 10 7 N o [\ ®] nN N o N Y p t - - - p- t -_ - - J = N = 3 B N wd [N S - o © co ~ aN wn E S Ww No - In making this determination [whether the facts shown by the parties give rise to a triable issue of material fact], the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” [Citation.]” The Court’s sole function in this context is issue-finding, not issue-determination. The Court must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” Code of Civil Procedure § 437c; Zavala v. Arce, 58 Cal. App. 4" 915, 926 (1997); Molko, supra, 46 Cal.3d at 1107. If a single issue of material fact exists, the motion must be denied. Versa Technologies Inc. v. Superior Court, 78 Cal. App. 3d 237, 240 (1978). “Doubts are resolved against granting the motion.” Brown v. FSR Brokerage, Inc., 62 Cal. App.4" 766, 773 (1998). V. ARGUMENT A. SUMMARY JUDGMENT CAN ONLY BE GRANTED WHEN NO TRIABLE ISSUE EXISTS AS TO ANY MATERIAL FACT Code of Civil Procedure § 437¢(c) states in pertinent part that summary judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” And Code of Civil Procedure § 437c(r) states in pertinent part that subdivisions (a) and (b) which govern regarding timing of the motion, timing of opposition papers and parties’ evidentiary burdens “shall not apply” to unlawful detainer and forcible entry/detainer proceedings. Case law is clear that Summary Judgment can only be granted when no triable issues of material fact exist. =~ Summary judgment may only be granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Villa v. McFerren (1995) 35 Cal. App.4th 733, 741; see also Thatcher v. Lucky Stores, Inc. (2000) 79 Cal. App. 4th 1081, 1086. Plaintiffs have shown facts in their Declarations that are more than sufficient to raise triable issues of material fact in that Plaintiffs contend that Defendants failed to contact Plaintiffs to discuss the required subject matter, including Plaintiffs’ right to request a loss mitigation meeting within 14 days, and to discuss alternatives to foreclosure prior to recording a Notice of Default in 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 Pa sa de na , Ca li fo rn ia 91 10 7 N o [\ ®] N o [\ ®] NN fo m [ a - p - st -_ P d (= =) p - violation of Civil Code Section 2923.55. Although Defendants have attached a Declaration of a custodian of records alleging that Defendants have complied with the statute( to which Plaintiffs have filed an Evidentiary Objections to the Declaration of Rebecca Adelman, filed concurrently herewith) , Plaintiffs deny that the business records are accurate and submit their own Declaration denying that they have been contacted and advised of the statutory requirements of Civil Code Section 2923.55. Thus, triable issues of material fact exist and those issues can only be resolved at trial, The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial. Flowmaster, Inc. v. Superior Court (1993) 16 Cal. App.4th 1019, 1026. See also Ostayan v. Serrano Reconveyance Co., (2000) 77 Cal. App. 4" 1411, 1418. Plaintiffs contend that Defendants have not met their burden of showing that they are entitled to judgment as a matter of law, thus their motion should be denied. B. THE FACT THAT PLAINTIFFS RECEIVED A PRIOR LOAN MODIFICATION DOES NOT EXCUSE DEFENDANTS FROM COMPLYING WITH CIVIL CODE SECTION 2923.55 The cases cited by the Defendants in support of the Motion for Summary Judgment contending that Defendants are excused from the requirements of Civil Code Section 2923.55 are distinguishable from the facts in this case. First, in this case the Notice of Default was recorded on November 25, 2015, over 5 years after the recording of the first Notice of Default on July 2, 2010. (See Declaration of Rebecca Adelman, and Separate Statement of Undisputed Facts, 2., and 14) The long passage of time between the first and second Notices of Default require the compliance with Civil Code Section 2923.55 since Plaintiffs cannot be expected to remember all of the rights explained after the first Notice of Default, if they were ever explained at that time. Furthermore, the intent of the statute is to allow homeowners the opportunity to avoid foreclosure, or at least explore alternative remedies, prior to a lender proceeding with foreclosure. Additionally, the Plaintiffs are entitled to another submission of a loan modification if there has been a change of circumstances In the cases cited by Defendants, the Court’s decisions are based upon facts where the discussions of loan modifications were close enough in time to make any further advisement of foreclosure avoidance remedies unnecessary since the homeowner’s had recently been advised of 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 + ~ O N Wh their rights under Civil Code Section 2923.55. In this case, the Plaintiffs were not advised of their rights(if at all) for almost five years after the loan modification and the long passage of time should not excuse Defendants with complying with the requirements of Section 2923.55 requiring contact by the lender or its servicer and discussion of foreclosure avoidance as set forth in the statute, Second, in this case, not only was there a long passage of time from the date of the first NOD and loan modification, but the original NOD was rescinded on February 16, 2011, thereby creating a new obligation to comply with the statute by advising Plaintiffs of their Section 2923.55 rights, which Plaintiffs contend that Defendants did not do prior to the recording of the new NOD. C. PLAINTIFFS’ CAUSE OF ACTION FOR VIOLATION OF BUSINESS & PROFESSIONS CODE, SECTION 17200 DOES NOT FAIL BECAUSE IT IS DERIVATIVE OF PLAINTIFFS’ CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2923.55 Since Plaintiffs have shown that there is a triable issue of fact with regard to their cause of action for violation of Civil Code Section 2923.55, as discussed above, then since the Business & Professions Code, Section 17200 is derivative of other violations of law, the cause of action should proceed to trial since it is tethered to the violation of Civil Code Section 2923.55 claim. Since the cause of action should proceed to trial to resolve the triable issue of fact as to whether Defendants complied with Section 2923.55, and the Business & Professions Code, Section 17200 is tethered, tied, or derivative of that violation of law, then both remaining cause of action should be allowed to proceed to trial to be determined by the trier of fact. Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal. App. 4" 638, 643 (2008)(section 17200 merely “borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”) (internal quotation marks and citations omitted. D. UNLESS THE STRICT REQUIREMENTS FOR SUMMARY JUDGMENT ARE MET PARTIES TO A LAWSUIT ARE ENTITLED TO A TRIAL Absent proper circumstances for a motion for summary judgment or partial summary judgment, parties to a lawsuit are entitled to a trial, either by the court or by jury. IFS Industries, Inc. v. Stephens (1984) 159 Cal. App. 3d 740, 756. 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 FN ~~ O N Wn Issue finding, rather than issue determination, is pivot upon which summary judgment law turns. Northrop Corp. v. Stinson Sales Corp., (1984) 151 Cal. App. 3d 653, 657. Plaintiffs contend that as Defendants have not met the strict requirements for summary judgment their motion should be denied and this matter should proceed to trial. E. ANY DOUBTS REGARDING A SUMMARY JUDGMENT MOTION MUST BE RESOLVED IN FAVOR OF THE OPPOSING PARTY Case law is well settled that any doubts regarding a summary judgment motion must be resolved in favor of the opposing party. Further, the declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and the Court should focus on issue finding, not resolving issues of fact. Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party; the court focuses on issue finding, and it does not resolve issues of fact. Colores v. Board of Trustees (2003) 105 Cal. App. 4th 1293, 1305. And if the evidence presented is equally conflicting the motion should be denied. In this case, Plaintiffs should have an opportunity to present their cases to the trial of fact at a trial in this matter since the primary facts of this case are in dispute, and to rule on conflicting evidence would not be fair to Plaintiffs, since the evidence that Defendants are offering in support of the Motion based upon business records from a custodian of records who admittedly did not make the notations in the Contact History Reports, which effects the reliability of those notations. Plaintiffs have objected to the admission of this evidence due to fact that it is hearsay, and even if the records are admissible as exceptions to the hearsay rule, which Plaintiffs argue that they are not, that they are inherently unreliable since the custodian of the records did not make the statements. Furthermore, there is direct evidence submitted by Plaintiffs that they did not receive the August 31, 2015 letter Defendants claim that they sent Plaintiffs, and that neither Plaintiff ever discuss the foreclosure avoidance possibilities, or other requirements of Section 2923.55 with anyone at SPS or on behalf of any Defendant prior to the recording of the second and new NOD. 7 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bl vd ., Su it e 10 0 H W ~N Oy Typically, in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute. Kids’ Universe v. In2labs, (2002) 95 Cal. App. 4th 870, 881. In reviewing the burdens the trial court should strictly scrutinize the moving party's papers and construe all facts and resolve all doubts in favor of the party opposing the motion. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Grant-Burton v. Covenant Care, Inc., (2002) 99 Cal. App. 4™ 1361, 1369. And the declarations in opposition to a motion for summary judgment need only disclose the existence of a triable issue. Counter-affidavits and declarations in opposition to motion for summary judgment need not prove the opposition's case; they suffice if they disclose the existence of a triable issue. McManis v. San Diego Postal Credit Union, (1998) 61 Cal. App. 4th 547, 555. The declarations of SHEILA M. WARNER AND RICHARD N. WARNER filed concurrently herewith disclose the existence of triable issues of fact, and specifically, whether or not Defendants complied with the provisions of Civil Code Section 2923.55, or whether the Plaintiffs statements that they never received the statutorily required foreclosure avoidance information. VI. CONCLUSION Based upon the foregoing arguments, Plaintiffs respectfully request that the Court deny the Defendants’ Motion and allow this case to proceed to trial on the disputed issues. Dated: May 8, 2017 STEPHEN R. GOLDEN & ASSOCIATES i on Stephen R. Sh Attorney for the Defendants, SHEILA M WARNER AND RICHARD N. WARNER 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT At to rn ey s at La w “ A S S O C I A T E S 60 0 N. Ro se me ad Bi vd ., Su it e 10 0 60 0 N. Ro se rn ea d Hi ve , Su it e To o" IK PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City and County of Los Angeles, California. I am over the age of 18 and not a party to the within action. My business address is 600 N. Rosemead Blvd, Suite 100, Pasadena, California 91107-2101. On the date set forth below, I served the following document(s) described as: PLAINTIFFS’ OPPOSITON TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION OF ISSUES On the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Attorney Telephone/ Facsimile/Email Party hanon J. McGinnis Tel: {310) 853-6300 Attorneys for effery N. Williams Fax: (310) 853-6333 Defendants Select cott R. Laes jwilliams@wargofrench.com Portfolio Servicing, Inc. and U.S. Bank National Association, as Trustee, on Behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AEG 2006- HEI Asset Backed Pass- Through Certificates, Series AEG 20016-HEI ELLS & FARGO LLP slaes@wargofrench.com 1888 Century Park East, Suite 1520 Los Angeles, CA 90067 DX] (MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. x (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ST EP HE N R. GO LD EN & AS SO CI AT ES 60 0 N. Ro se me ad Bi vd ., Su it e 10 0 Pa sa de na , Ca li fo rn ia 91 10 7 [\ ) N o [\ ®] - - - p k p d - - - p- p - = 5 R = R 3 No - S \O o o ~ aN wn ~ Ww No - oS sealed envelopes or packages designated by the express service carrier, addressed as stated above with fees for overnight delivery paid or provided for. [CJ] (MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed and provided them to a professional messenger service for service. A separate Personal Proof of Service provided by the professional messenger will be filed under separate cover. X] (FACSIMILE) I faxed the documents to the persons at the fax numbers listed. [J (E-MAIL or ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed, I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [1 (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addresses listed above by electronic mail at the email address(s) set forth above pursuant to Fed. R. Civ. P.5. (d)(1). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e- mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed. R. Civ.P.5.(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se. X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [] (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on May 8, 2017, at Pasadena, California. - Stephanie Zuleta 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT