Professional Documents
Culture Documents
under the deed of trust; and 2) borrowers who allege, with specific
facts, that the foreclosing entity was not the true beneficiary.1
Borrowers in the first category rarely make it past the pleading stage,
but borrowers in the second group may. In other words, it is not
enough to say X is not the true beneficiary, but it may be enough to
allege X is not the true beneficiary because Y. If Y is a specific,
factual allegation that shows the foreclosing entity did not have the
authority to foreclose, then the claim is viable.
The court then explained that [o]ne basis for claiming that a
foreclosing party did not hold the deed of trust is if the assignment
purportedly giving that party foreclosing power is void.2 The court did
not say that attacking a beneficiarys assignment is the only way to
bring a wrongful foreclosure claim, only that this particular defect,
when alleged with specific facts, is enough to put the authority to
foreclose at issue. Glaski alleged that the assignment of his deed of
trust and note to the WaMu Securitized Trust was void because it
occurred after the trusts closing date.
B. Standing: Void vs. Voidable Assignment
Many securitization-based wrongful foreclosure claims fail because
the borrowers do not have standing to challenge how their loan was
securitized.3 The Glaski court framed this issue simply, focusing on the
assignment: When a borrower asserts an assignment was ineffective,
a question often arises about the borrowers standing to challenge the
assignment of the loan (note and deed of trust) an assignment to
which the borrower is not a party.4 The court cites federal cases from
See Glaski v. Bank of Am., N.A., 218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d 449, 460
(2013).
2 Glaski, 160 Cal. Rptr. 3d at 461 (emphasis added).
3 See, e.g., Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 898-99 (D. Haw. 2011)
([C]ourts have uniformly rejected the argument that securitization of a mortgage
loan provides the mortgagor a cause of action.); Junger v. Bank of Am., N.A., 2012
WL 603262, at *3 (C.D. Cal. Feb. 24, 2012) ([P]laintiff lacks standing to challenge
the process by which his mortgage was (or was not) securitized because he is not a
party to the PSA.); Bascos v. Fed. Home Loan Mortg. Corp., 2011 WL 3157063, at *6
(C.D. Cal. July 22, 2011) (Plaintiff has no standing to challenge the validity of the
securitization of the loan as he is not an investor in of the loan trust.).
4 Glaski, 160 Cal. Rptr. 3d at 461.
1
10
Glaski, however, Gomes left his argument there. He did not take the
crucial step of explaining why MERS, who was listed as beneficiary
and nominee in the deed of trust,14 was not the true beneficiary.15
Rather, Gomes alleged that CC 2924 afforded him the right to test
whether MERS had the beneficial interest before the sale took place.16
Whether is the key word and the difference between a Gomes claim
and a Glaski claim. Gomes wanted to investigate whether or not MERS
was the beneficiary. By contrast, Glaski alleged that Bank of America
was definitely not the beneficiary because the assignment giving them
beneficiary status was late to the trust, and therefore void. Gomes
asked, who has the authority to foreclose? whereas Glaski stated: X
definitely does not have authority for these reasons . . . . The Gomes
court found that CC 2924 provides no right for borrowers to ask
whether the foreclosing party had the authority to do so.17
B. Distinguishing Nguyen: Void vs. Voidable
The Glaski court also had to reckon with Nguyen v. Calhoun, 105
Cal. App. 4th 428 (2003), which held that anything outside of the
foreclosure sale process cannot be used to challenge a presumably valid
and complete sale.18 Specifically, the court had to consider whether an
ineffective transfer to the WaMu Securitized Trust was an aspect of
the foreclosure sale, or if it fell outside of that sale and was therefore
irrelevant.19 Because the transfer to the trust was fundamental to
Bank of Americas authority to foreclose, and would void the sale itself,
the court decided that the trust transfer was part of the foreclosure
sale and a valid basis for challenging the foreclosure.20
C. Distinguishing Fontenot: Burden Shifting
Id. at 1151.
Instead, Gomes claimed he d[id] not know the identity of the Notes beneficial
owner, but that whoever authorized MERS to foreclose was not the beneficiary or
the beneficiarys agent. Id. at 1152. He gave no specific reason for believing this,
other than that his loan was sold . . . on the secondary mortgage market. Id.
16 Id.
17 Id. at 1155 ([Section 2924 does not] provide for a judicial action to determine
whether the person . . . foreclos[ing] . . . is indeed authorized.).
18 See Nguyen v. Calhoun, 105 Cal. App. 4th 428, 441-42 (2003).
19 Glaski, 160 Cal. Rptr. 3d at 466.
20 Id.
14
15
The Glaski opinion nowhere cites Fontenot v. Wells Fargo Bank, N.A., 198
Cal. App. 4th 256 (2011), but it is important to recognize why Glaski came out
differently from that case. As in Glaski, the borrower in Fontenot alleged that an
invalid assignment voided the entire foreclosure transaction.21 Unlike Glaski,
however, Fontenot based her invalid assignment theory, not on specific facts like
a late transfer to a trust, but on the theory that the assignor (MERS) had the
burden to prove the assignment was valid, and could not do so.22 The court
determined that MERS did not bear that burden because nothing in the statutory
scheme regulating nonjudicial foreclosures created that duty: [A] nonjudicial
foreclosure sale is presumed to have been conducted regularly, and the burden of
proof rests with the party attempting to rebut this presumption.23 If the party
challenging the trustees sale [can] prove such irregularity and . . . overcome the
presumption of the sales regularity, that could shift the burden to defendant to
show a valid assignment.24 This is precisely what Glaski accomplished: by
pleading specifically that the assignment is void because of the late transfer to the
trust, Glaski rebutted the presumption of regularity, which is all he needed to do at
the pleading stage.
III.
See Fontenot v. Wells Fargo Bank, N.A., 198 Cal. App. 4th 256, 269 (2011).
See id. at 269-70.
23 Id. at 270.
24 Id. (quoting Melendrez v. D & I Inv., Inc., 127 Cal. App. 4th 1238, 1258 (2005)).
21
22
25
Cases without Westlaw citations can found at the end of the newsletter.
and diligent effort, he executed post and mail service. The trial court
accepted this statement as evidence of compliance with CC 1162, but
the appellate division reversed. The statute indicates that post and
mail is the last available method of service, not the first. Since the
affidavit does not specifically assert that personal service was ever
attempted, the trial court erred in assuming that service complied with
CC 1162. Further, defendants appeal based on defective service was
not barred because they failed to assert it as an affirmative defense.
Proper service is an essential [UD] element and tenants general
denial of each statement in the complaint put service at issue.
Post-foreclosure UD plaintiffs must also demonstrate duly perfected
title and compliance with CC 2924 foreclosure procedures. CCP
1161a. Duly perfected title encompasses all aspects of purchasing the
property, not just recorded title. The trial court relied on plaintiffs
trustees deed upon sale, showing plaintiffs purchased the property at
the foreclosure sale. The court ignored contradicting testimony alleging
that the property was sold to the loans servicer, not plaintiff. Further,
to prove compliance with section 2924, the plaintiff must necessarily
prove the sale was conducted by the trustee. Here, the trustees deed
upon sale identifies one trustee, but the DOT identifies another. The
trial court erred in accepting the recorded trustees deed upon sale as
conclusive evidence of compliance with 2924, and the appellate
division reversed.
TPP Requires Servicer to Re-review Borrower for Permanent
Modification
Lovelace v. Nationstar Mortg. LLC, No. 34-2012-00119643-CU-BCGDS (Cal. Super. Ct. Sacramento Co. Aug. 22, 2013): Borrowers must
allege performance, breach, consideration, and damages to plead a
breach of contract claim. Here, borrowers sufficiently alleged each
element and defendants demurrer was overruled. The predecessor
servicer sent borrowers a TPP agreement and letter, requiring
borrowers to sign and return the agreement, make their payments,
and contact the servicer when the TPP ended, so servicer could rereview them for a permanent modification. Borrowers performed all
aspects of the contract, but Nationstar, the current servicer, breached
by refusing to re-review them for a modification. To show
9
their claim. Here, even though borrowers pled their 2923.5 claim
with sufficient specificity, they failed to provide sufficient evidence to
show that they are likely to prevail on the merits. Defendant offered
evidence of a diligent effort to contact borrowers, and of actual contact.
Defendant produced copies of letters allegedly sent to borrowers
offering to discuss financial options regarding their loan. The letters
also memorialize several telephone conversations with borrowers.
Borrowers argument that these phone conversations were initiated by
them, not by the servicer, as required by statute, was deemed likely
unmeritorious by the court, which denied the PI.
Dual Tracking: PI Granted on 2011 Application
Ware v. Bayview Loan Servicing, LLC, 2013 WL 4446804 (S.D.
Cal. Aug. 16, 2013): In California federal district courts, a party
seeking a preliminary injunction must show they are likely to succeed
on the merits, to suffer irreparable harm without the PI, that the
balance of equities tips in their favor, and that the PI serves the public
interest. Here, borrowers sought a PI to prevent the foreclosure of their
property, alleging three separate violations of HBORs dual tracking
provision. First, they claimed that defendants cursory denial of their
short sale application violated CC 2923.6(f), which requires servicers
to identify reasons for a denial. The measure only applies to loan
modifications however, not short sales, so this claim was deemed
unlikely to prevail on the merits. Second, borrowers claimed they
should be granted dual tracking protections on their second
modification application because they sent a letter to their servicer
asserting an increase in routine expenses. This barebones
description of a change in financial circumstances does not constitute
documentation under CC 2923.6(g). Lastly, borrowers alleged a
dual tracking violation based on 2013 foreclosure actions, which
occurred before defendant made a determination on borrowers 2011
modification application. Defendant pointed to their internal policy of
denying modifications to borrowers in bankruptcy (which borrowers
were in, from 2011-2013) as proof of the evaluation and denial. The
court determined that this policy did not, by itself, constitute an
evaluation for purposes of CC 2923.6. To proceed with a foreclosure
after HBOR became effective, defendant had to expressly deny
borrowers 2011 modification application. Because borrowers are likely
15
16
First & Second TPP Agreements as Distinct Bases for Fraud &
Promissory Estoppel Claims; Pre-HBOR Authority to Foreclose
Theory
Alimena v. Vericrest Fin., Inc., 2013 WL 4049663 (E.D. Cal. Aug. 9
2013): Deceit (a type of common law fraud) requires: 1)
misrepresentation; 2) knowledge of falsity; 3) intent to defraud; 4)
justifiable reliance; and 5) causal damages. In this case, borrower
successfully pled several counts of intentional misrepresentation based
on separate misrepresentations by their servicer, Citimortgage.
Borrowers first TPP agreement misrepresented Citis intentions
because it required borrowers to make timely TPP payments and
maintain documentation, and bound Citi to consider them for a
permanent modification if those conditions were met something Citi
never did. Citis alleged conduct during the modification process (oral
and written promises, assurances, etc.), coupled with their ultimate
refusal to consider borrowers for a permanent modification, shows
knowledge and intent to defraud. Absent Citis TPP agreement and
assurances, borrowers would not have made their TPP payments,
demonstrating reasonable reliance. Finally, borrowers adequately pled
damages even though their delinquency predated their modification
applicationby pointing to the dozens of fruitless hours spent
trying to meet Citis requests (fruitless because Citi never intended to
modify), a delayed bankruptcy filing, and the TPP payments
themselves. Alleging similar facts, borrowers successfully pled another
two counts of intentional misrepresentation against Citi for 1) their
promise, and then failure, to honestly review borrowers second HAMP
application, and 2) Citis notice (in letter form) of a second TPP and
subsequent failure to review them for a modification in good faith. To
show damages stemming from the second TPP, borrowers added the
sale of their car, which Citi assured borrowers would qualify them for a
modification.
From the same set of facts, borrowers successfully stated two claims
for promissory estoppel, based on each TPP agreement. Central to the
courts reasoning was its basic view of the first TPPs language, which
constitutes an enforceable agreement to permanently modify a
mortgage if the requirements are met by the borrower. Those
requirements were: 1) making timely TPP payments; 2) continuing to
17
banks activities, then discern whether the action stems from the
successors obligations on instruments originating from the [savings
association] or whether the successor is acting independently of any
requirements from the instruments. The court though, declined to
decide the HOLA issue without sufficient briefing.
CC 2923.5 only applies to owner-occupied property (defined in CC
2924.15). Borrowers failure to allege compliance with this requirement
was not fatal to their claim, however, because defendant conceded this
element by requesting judicial notice of their 2923.5 declaration, in
which defendant did not dispute owner-occupancy.
A 2923.5 declaration attests to a servicers due diligence in
attempting to contact the borrower. Here, borrowers alleged that
defendant never contacted them pre-NOD, nor had defendant complied
with 2923.5s due diligence requirements. Further, defendants
2923.5 declaration was invalid because it was signed by someone who
lacked personal knowledge of its contents. The court found personal
knowledge not required to sign a declaration.26 Borrowers 2923.5
claim survived anyway, though, because their allegation that they
were never contacted is a triable issue. While the claim survived, the
court denied borrowers request for an injunction, reasoning that the
borrowers may delay the foreclosure by prevailing on the merits.
As in Barrionuevo (above), borrowers authority to foreclose theory is
premised on the original lenders securitization of the note before
defendant invalidly purchased it. Other courts have found that
securitization of the . . . note does not result in loss of the power of sale
under a DOT, but this court disagrees. Securitizing the note sells the
proceeds from the mortgage, and it would be illogical if the seller
somehow retained the right to foreclose on the property.
Class Certification on Contract, Rosenthal Act, & UCL Claims
Based in TPP Agreements
Notably, the court did not discuss CC 2924.17, which became effective January 1,
2013 as part of HBOR. This statute requires servicers to review 2923.5 declarations
and ensure that their contents are supported by competent and reliable evidence.
In this case, the NOD was recorded in 2012, and 2924.17 may have then not
applied, even though the litigation began in 2013.
26
19
Also, the court uses Wachovia to describe defendant, only noting in the
Background that Wachovia was later acquired by Wells Fargo. Even if this court
did adopt the conduct-related approach, it is unclear from the opinion whose
servicing conduct is at issue, Wells Fargos or Wachovias.
27
23
26
5
6
APPEL L \T E 1>1\'1510;';
10
13
14
II
12
~tELLON,
Plaintiff and
Respond~nt,
ORDER
v.
VIDAL A. PRECIADO, ET AL
Ddendants and Appellants.
15
16
17
IS
19
20
The appcJ! by appellants Vidal Preciado ("Prec iado"), Roland Luke ("Luke"), nnd
Kenm:th I-[cnderson ("Henderson") (collectively, "Appellants") from the un!lIwfu! detainer
judgments entered on M:lfCh Hi, 2012, C;l.mc on regubrly for hearing and was heard and
submitted on August 16. 20 13. We hereby hold as follows:
I'roceduraill is tory
21
22
23
24
25
IWO
New York Mellon ("Bank") is the owner of 1343 State Street, in Alviso, Cali fornia. On July
25,20 11 , B.lnk (lcquired title to this property (It a trustee's sale pursuant to foreclosure upon a
det'd of trusl. TIle property W(lS previously owned by Precbdo and occupied by Appellants.
26
27
28
, Sep:lfn:~ C1~fk 's TrJnscript~ "efe p:l:pnf~d for Case ~os . l-ll-CV -215285 ( A~t1e~1 :':0. , . I2AI'QO1360) i!.' <:! I.
I ICV 215 25 S ("preJI 1"0. 112:\ N )O 13 61). I ~ order 10 avoid t o:lfusio:l. th e C krk' s Trar\lcrip:.s in Ih~ rNO
elses " ill be eileJ as ""CT-2S6"" nrod ""CT-2SS.~ respectively. A sir. gle Repo:-.ers Tra.""lsc:i;J: ("RT') "ns pr e~ued
as the tri als took pbee al the SJme lime.
ORDER
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:1
possession ofl he property witlun three days, 30 d<!ys. or 90 days (depending 0 :1 thei:
OCCU~3~C y
Appell :!.nl' on December 19, 20 11.3 TIle complaints incom e!l:- described the p:,open)'
e..5
being
loc:llcd in San Jose instead of 1\1 \'iso. Appd l:1nts fi led indi\'idua] answers to the complaints.
:md Henderson nnd l uke also filed indivi du:!.I prejudgment cJ3ims of ri ght 10 po15ession,'
8
9
10
II
Trial on Ihc un!:\w(ul dClaint'T aCliom w:u h!:ld on March lei, 201 2, befo:e Li e
lionomhk- SOCt:.llcS Mnnouki:m.' That same day, It judgment was cnlered in eilch Cil5 C which
I\w:m.led B:mk possession of the property, rent, :md d3m3ges.'
lIowe','(:r, \\ h ~n th ~ 5heriff
sOIlht 10 (':-.::n l1C tltc wri t. it \\';15 disco\'t' red thaI the property w:n incorrectl y listed as
I51\n Jose. The sheriff was un:'L ble 10 cxecute the \\Tit due to this
c rro ~.
~i n g
fo ~
in
an
12 ,ex pJ.o"'t e or-Jer 10 amend the judgment. J On April 13. 2012. the court enl~red 3.."1 ord ~r a:ne::din g
13 th~ j uds~ en:.s 10 change the propcn y address to Alviso,'
I"
16
AI Appellants' request. the court st3yed Appell:!.nts' eviction (or ':0 enys. cp to !:'.d
i:-:;:Iud:n ..\ p: i! 2S, 20 12.9 Appell:mts filcd indi \"idU3! noticcJ of 3ppca1 fro ~ !~ e \ 12.: ch 16.
20 12 j udg m~nt s. to
,\p pc::. l::.hi lity
18
19
20
court. (Code Civ. Prot., 90 . ;,], subd. (a).) The t~bJ court entered judg::l~n: i:: t:':~ s :
limiterl civil cases on ~1nrc h 16. 201 2. Accordingly. the judgments are apPcJ.b:'!e 10 ti:~
21
22
,--,
2'
II
Appclb te Dh"ision.
1/1
26
27
28
20C0 .. W)
I'
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OlllE R
I)
2)
J)
Ihnk of Amctk'a did not produce evidence sufficient to prove that Lite
forcdosurc sale was conducted in strict compliance with Civil (ode section
291..: :mc! thll titk was duly perfected; and
4)
Uank improperly filed two SCp:l!2.IC unlawful detainer actions fa: the same
propeny.
9
10
StantianlornCl"iew
]]
In an appeal from an unlawful detainer jUdgment, "(wJc revicw the trial coun's findings
12
of (:lct to determine whether the)' arc sUfponed by subs1:mtial evidence," (Palm Properry
13
v.
rad~gar
(20 11) 19'; Cal.App.4th 1419. 1425.) To the extent the trial COUtt
"
drew conc:lusions of b w based upon its findings of fan, we review those conclusions of law d~
II
16
17
Ap?ellants' first argument is that the Appellate Division must conduct an independent
IS
rc\'icw oflhe entire record pursuant to People \'. Wendr (1979) 25 Cal.3d 436. Howe\'er. a
19
Wendt' review only upplics to criminal uppeals. (See In re Sade C. (1996) 13 Cal.4th 952, 98';')
20
In civil ::tppc31s, the nppellnte coens ue 110/ required to perform an u.'1lSsi5!cd stud\" of
21
thc record
22
Intt rnal.
23
o/California (1998) 63 CnLApp.4lh 11 08, I! 15 .) Instead. a part(s failure to perform its duty
24
to providt! nrgument, citations to the record, nnd legal authority in support of a contention mly
21
be trelteu as a waiver of the issue. (A nw)(f Corp. \'. Hamil/on & Samuels (2002) 100
26
Cal.App.4th 1286, 130 1; Peopft ex ref. l Oll! Cen/llry flu. Co. \'. Hili/ding Permit Consultonts.
27
II/C,
O~
\P.
Employmt lll Dewfopmel:t D~pl. (2007) 150 CaLApp.4lh 923, 928; GUlhrry,'. Slale
(2000) 86 Cal.App.4th 280, 284 ; GMhrey, sllpra, at pp. I I I $. 1116.) Thus. ApprllalllS'
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ORDER
Apl'd lal1ls at~lIl! that they ww: not properly ser\'ed Wilh notices terminating their
I c n~ l h;~ .
"
As:\ 1l1\:T\.'quisilc \0 minS an unlawful detainer tletion. a tenant must be ser.'cd wilh
dlhc[ a 3, 30. ,'I' 90 ,I:\rs' 1I0lice, dcp(,lIding on the individual's slatus ns n tenant. (Code Ci \',
\'\w .. 11 61. 1161:1. 11 61b.) Code of Civil Procedure section 116i! provides three methods
l, r ~cn'i n g
these noli,'cs: ( I) by perso nal dcli\"cl')" \0 the !('n:lnl (pcrsoru[ service); or (2) jfthe
ICII:lnl is at-sen! from his residence :md Usu:li pl3cc of business, by Jcu\'ing a copy \\i lh a person
t' f suitable age and di scretion at either pInel.'. and sending a copy through the mail to the ten:mfi
tc~ idcnc~
(substituted service); or (3) if a place of residence and usual place of business cannot
10
h: :lsCCMJincd or n person of suitable :le or discretion C!lrulot be found there, then by :lffixing II
II
((lPY in :l cOI1~ r i cll ous pbcc ll n thc property :lnd ddi\'cring a cepy to
(l
5\I\:h n pencn can be found,:!.:1d al$o s ~'nd i ns a copy through th: m:lil addressed to the tenant a1
the place where the propeny is sitUlltcd (post:md mllil service), A notice is \'alid and
H
cnfl)r,'cable only if the lessor has strictly complied '\i th these statutorily m:mdlllcd requirements
15
f",r 5eryice. (LM om io \'. -'(otta (1998) 67 Cal.App.4lh 110, 11 314 ; Liebo\'ich v.
16
17
e .~pl:!. ine-d
IS
19
:0
wh ich CO:ltaincJ the proofs of ser\'ice for the notices. (RT, p. 14 : 1623.) In the proofs of
21
sen'ice, reg istered process sener Kris VOfS.JIZ (,-Vorsatz") declared that he served the notices
('II
September I, 20 II. (CT286, pp. 11.1 2; CT288 , ['[I 11 . 12) ,\ ecornin8 to the proofs of
scrvice, "[aJftt:r dU!: and diligcr11cOo rt" "orsatz posted a copy of the notices on 1343 Stale
Street, S3" Jose, ClI1ifomi3. (id) Thereafter, Versatz mailed a copy of e<!ch notice :o n post
25
oOicl." box that was designated as Presiado 's mailing address. (Id.) The court then entered
26
27
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ORDER
Where serv;ce is carried out by a registered process server, Evidence Code section 647
2
applies to c\imin31C the necessity of calling the process server as:l \\~t ness 31lfial. (Pa/III
Codc section 647. "[I]hc return of a process server [ I uJ:on process or notice establishes n
.s
presumption. affecting Ihc burden of producing evidence. of thc facts slaled in the return ," A5
U:mk did not produce VO(5317. as a witness, the question is whether Vorsalz's proofs of scry icc
c slab l ish~d
8
9
In Iligh/nnd Plas/lcs, Inc. \'. Enders (1980) 109 Cal.AppJd Supp. 1, thc coun analyzed
whelher there was sufficient evidence that the landlord complied wilh the "post and mail"
10
provision of section 1162. The court noted thlt this code section does not requi re:1 showing of
II
rcasonlble diligence in atlempting personal service before utilizing the substi tuted service
12
provisior.s, as required in Code ofC ivjl Procedure section 41 5.20, subdivi sion (b). (ld at p. 6.)
13
It docs require, however, "that if the tenant c:mnot be located fo r personll service that the
14
person mlking this substituted service first determine either thlllhe tenant'S', .. place of
15
residence and business cannot be ascertained, o~ that a person of suitable age or discretion there
16
CMnot b: found .. .. ' .. (ld) In Highland Plastics, the deputy marshll lestified Ihat when he
\7
attempted to serve the 30day notice on dd::ndant. no O:lC answered his knock on the door of
18
the premises which had been identified to him as the place of residence and business of
19
defendant. (ld. at pp. 6-7,) When there was no response to the deputy's knock, he then posted
20
the not ice "in a conspicuous place on the property" and mailed a copy to the place where the
21
propeny was situated. (lei. at p. 7.) Thus, the court conduded that there was substantial
22
evidence supporting the trial court 's find ing that there hJd been (! proper service of the not ice
23
utiliz ing the "pOSt :lnd nl:lij" provi sio ns :ls neither the defend~nt nOr:l person of suitab le age and
24
25
Similarly, in flo:::: \'. Lewis (1989) 215 Cal.App.3d 314, the court held that trial coun
26
properly found that the landlord's "post and mail" procedure of service of n IhrcedlY notice
27
pursuant to section 1162 was :ldequate, In that case, testimony at trial established that the
28
landlord's agent went to th~ apartment, rang the bell and knocked on the door. When no one
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ORDER
:mswC'red.the employee l:lpC'd n copy of lhe notice to the door :md slipped another copy under
:!ddre~5!d
one \\-:lS pres,"nt when the procC'ss serve, went 10 Ih," :!.p:;nmenl. ~post and mair' service \\-:lS
before utilizing the substituted service pro\'isions is rC'quired under the statule. (See Ho:: v.
L,'" is. supra. 215 Cal.App.3d at p" 317.) Ne\"enheless. "post ilnd m3il" scn'ice is not
3uthorized 3S a first-reson melhod of sm;ce. Here, Vors:ltz's deelnrntion does not establish
Ihat Bank complied wilh seclion 1162 as it does show Ihll person:li serviee was fver auempted.
10
The proofs of service do nOI st He Ih:ll Appell:!nts were not home or Ihul no one of a suitable age
II
was home whC'n the sen'er posted the r!otiC'e "in:l conspicuous pbce:"
12
In its opposition brier". Bm.!.:. argue,; th:!.t Appellants m:!.y not eh:llknge service of the
13
notices as Ihey did nOI include this lS enlffinn:lIiw defense in their answers. Dank is mistaken.
14
An affirmative defense is e.!l o.!Iegation of new m:mer in thC' answer th:lt is not responsi\'e to an
15
16
relied on by the deicndant that is not put in issue by the phintifr s complaint.
17
( 1 99~)
tS
Cnl .AppJd 721. 725 .) Where the answer :llleg:s f:l.cts showing th:lt some essential allegation of
19
the complaint is not true. those f:lets lre not "new m:ltler:' but only a tr3.\"ersc. (Ibid.) Because
20
21
actions. Appel!:l.nts general denbl of e:lch s!Jlem: m of lhe compbint sufficiently put the
22
service of the notices:n issue:!.nd Appellants were not required to pleld ineffective notice as an
23
(B~l'iIl
,'. l O/lra
2i Cal.AppAlh 694. 69S; Stare Farm .\fut. Au/o. IllS Co \". Sllprrior Court (199 1) 228
W:lS
According!y, the judgment for possession must be reversed because Bnnk f3i1ed to
24
25
est3bl ish proper senite of the notices. (See Li~bol'ich \". Shah -okhkhany. supra, 56
26
Cal.App.4th at p. 514.)
27
III
28
III
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ORDER
Sale ill Complia nce with Ch'iI Coll e 2924 ct seq, and the IJccti of T n n t
"I listoricallya cause of action for unlawful detainer was available only to a land lord
against his tenant." (Gross v. Superior COllrt ( 1985) 171 Cal.App.3d 265. 271 .) The remedy
.:
lUIS been expanded by statute to :ldditional categories of plaintiffs (sec Code Civ. Proc. , 11( 1)
5 :lnd defendants (sec Code Civ. Proc., 116Ia). The: purpose of section 1161 a of Ihc Code of
6
Civil Procedure was to make clear that one i1cquiring ownership through foreclosure could nlsa
evict by a summary procedure. (Sec Gross v. SlIperior COllrt. lIIpra, 17 1 Cn l.App.3d 01 p. 271 .)
9
10
conducted sa le nnd Ihereafter "du ly perfected" his title. (Slcplu:I1S \'. lIollis (1987) 196
II
Cal.A pp.3d 948, 952; Emlls \'. Superior COlirt (1977) 67 C(lI.AppJ d 162, 169.) "[Wlhere the
12
pl.:iillli ff in the unlawful detainer action is the purchaser at a Irustee' s sale, he or she 'need only
!3
prove:l sale in com pliance wi th the statute: and deed of trust, follow ed by purchase at sueh sale,
I':
:!Ild Ihe defendant mly raise objections only on Ihal phase of the issue of titJe.' " (O/d Nat '/
J5
Fill Sm 's v. Stibtrl (1987) 194 Cal.App.j d 460. 465 .) "The statute" with which a post
16
fo reclosure plaintiff must prove compliance is Civil Code section 2924. (Seidell v. Ilng/o
17
Cali/oril la Trllst Co. (1942) 55 Cnl.App.2d 9D, 920.) On appell, Appcl13.nts asserted thl ! Dank
18
19
;\lll ial, Bunk pro\'ided the Trustee' s Deed UponS.,le, recordt'd August S, 20 11 . (Sec
20
RT, p. 5: 1.11 .) The Trustee's Deed Upon Sale purportedly showed Ihat Bank purchased the
21
property lit the truSlcc' s sule held on July 25, 2011. (S ec CT 286, pp. 6S.) Luke then testified
22
that he
23
6:25 26.) I'lccittdo testified thaI the loan was ori!;inally with Count-ywide, :tnd tht'n
24
COl1rurywide
25
w~ s
W:IS
\0
I'C)llOnded, "\Veil, [ don' l know what Bank of America did or didn't do, bUlthey hrlvc {I deed
26 Illl're showin!! it's dilly nUlhl'nticntcd, the det'd that Bank of New YorK Mellon owns the propt'rty
27 illre." (Sec RT, p. 7:16-1 9.) When I\ ppcllanls pre:sst'd !lank 10 provt' it ownt'd tht' property, the
18
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ORDER
court st:l1ed, "Thcy h:l.vc a dced showing thJt they O\m the property. and that's 011 they need to
.:
pcrfected" its titk, "{TJit le is du ly perfcctC'd whcn nil steps hJ\'C' ix:C'n taken to make it perfect.
i.e" \0 COllVCY to the purchaser that which he h:ts purchJsC'd, \':did and good beyond:lll
re:lso nJbk doubt. which includC's good record (i lk. but is nol li mi!ed to good record lille, as
between the p;lr1ies to the tr:msJc tion. The lerm 'duly' implies th:lt all of those elements
!1eccssJ:-)' to J valid sJle exist, el Se there would nOI be J SJlc at ~1J. (Kessler ~'. Bridge (19 58 )
10
161 Cal App.2d Supp. 837. 84 1 li nlern~l citations om itted].) Uncb:l decd of trust, power of
II
sale upon the trustor's default veSls in the trusteC'. (Ca/I'o I'. HSBe Balik USA, NA . (201I) 199
12
Cal.AppAth 118, 122 .) Therefore, in order to provC' compli:lnce with section 2924, the pla intiff
13
11
I":
p~o perty
15
16
Title Co mp:!ny as the trustee. (S ee CT286, p. 121.) Ihr.k did r:ot provide any evidence
17
C'slaolishing Recontrust's au thority 10 conduct the trus tC'c' s sale. As BmT..: failed to p:ovide :!.!ly
18
evidence that Recontrust was substituted for the origin~l trustee, Ba.'lk was nOI entitled to
19
jcdgmer.:.
20
,.\prellanls'
21
r~cmainin g
D~ed
,\rgumenIJ
Given our dec ision to reverse the judgments, we need not rcach Appclb.ms ' rem:!ining
22
arguments.
23
III
2-1
11/
25
11/
26
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27
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28
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ORDER
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l"111ilk.! M (O~1i on I' PI"',II. (SC'C' enl I{uks of CoU(!, ruk 8 , 891(1!. X:~ ).)
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,
ORDER
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TIME: 09:00:00 AM
JUDICIAL OFFICER PRESIDING: Raymond Cadei
CLERK: D. Ahee
REPORTER/ERM:
BAILIFF/COURT ATTENDANT: C. Chambers
DEPT: 54
APPEARANCES
Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint
TENTATIVE RULING
Defendant Nationstar Mortgage LLC's ("Nationstar") demurrer to the second amended complaint
("SAC") of Plaintiffs Jeff and Stacey Lovelace (the "Lovelaces") is OVERRULED.
This is a nonjudicial foreclosure case. The court previously sustained Nationstar's demurrers to the
original and first amended complaints. The SAC contains a single cause of action for breach of contract.
The contract at issue is the Trial Period Plan ("TPP") attached to the SAC as Exhibit C. The Lovelaces
have alleged six different breaches of the TPP and have pleaded each breach as a separate "count"
within their breach of contract cause of action. Nationstar demurs on grounds that the allegations fail to
state a cause of action.
In the first count, the Lovelaces allege that that the TPP required them to (1) execute and return the
TPP, (2) make certain payments on a temporary basis, and (3) contact Nationstar at the conclusion of
the trial period so that the latter could perform a "re-review" to determine the Lovelaces' eligibility for a
permanent modification. (Nationstar's predecessor in interest--not Nationstar--is actually identified in the
TPP, but the Lovelaces allege that Nationstar succeeded to its predecessor's benefits and obligations in
the TPP.) The Lovelaces further allege that they fully performed under the TPP, but that Nationstar
failed to perform the re-review needed to determine eligibility for a permanent modification. Because
these allegations suffice to state a breach of contract cause of action, Nationstar's demurrer is overruled.
In overruling the demurrer, the court rejects Nationstar's argument that the Lovelaces have merely
alleged oral promises to modify their loan, which Nationstar argues are unenforceable given the statute
of frauds. (See Moving Memo. at 5:8-23 [citing CC 2922].) Even if some of the Lovelaces' allegations
in the SAC depart from the terms of the TPP, and thus could be considered unenforceable oral
promises, the TPP contains written promises that satisfy the statute of frauds. The TPP provides:
"To accept this offer and enter into the Trial Period Modification, all borrowers must sign both copies of
the enclosed Trial Period Plan. You must then return BOTH signed copies to us - along with your first
DATE: 08/22/2013
DEPT: 54
MINUTE ORDER
Page 1
Calendar No.
DATE: 08/22/2013
DEPT: 54
MINUTE ORDER
Page 2
Calendar No.
held that, in the context of a trial loan modification, time and energy expended to submit financial
documentation is consideration sufficient to support a breach of contract cause of action. (See Ansanelli
v. JP Morgan Chase Bank, N.A. (C.D. Cal., Mar. 28, 2011) 2011 U.S. Dist. LEXIS 32350, at *9-11 [citing
California cases].) Given the Lovelaces' allegation that they expended time and energy to their
detriment, the court rejects Nationstar's "no new consideration" argument.
Next, Nationstar argues that the law does not require them to offer a permanent loan modification. The
court need not reach this issue because the Lovelaces have pleaded a breach of contract cause of
action based on Nationstar's alleged failure to re-review their eligibility for a permanent modification.
Whether that re-review would have resulted in the Lovelaces' qualification for a permanent modification
under applicable guidelines involves factual issues that the court cannot currently decide. The fact
remains, however, that the Lovelaces have alleged a promise that Nationstar did not perform and which
deprived the Lovelaces of an opportunity to qualify for a permanent modification. Liberally construing
these allegations, as the court must on demurrer, the Lovelaces have stated a breach of contract cause
of action.
The court notes that it must overrule Nationstar's demurrer if the allegations state a cause of action on
any theory. Although the Lovelaces have formatted the SAC into separate counts, each count is merely
a portion of a single cause of action for breach of contract. Because the first count based upon the
alleged failure to conduct the re-review states a cause of action, it is irrelevant whether other counts also
state causes of action. Indeed, the court cannot sustain a demurrer to a mere count or other portion of a
cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) If Nationstar wished
to eliminate discrete counts in the SAC, it was required to file a motion to strike, not a demurrer. (Id. at
1682-1683.)
Nationstar argues next that the demurrer should be sustained because the Lovelaces have not alleged
damages resulting from any breach. As previously discussed, the Lovelaces have alleged detriment in
the form of lost time and energy associated with the submission of financial records. Absent authority for
the proposition that such detriment cannot constitute damage as a matter of law, the court rejects
Nationstar's no-damage argument.
Finally, Nationstar argues that the demurrer should be sustained because the Lovelaces impermissibly
added co-defendants without leave of court. The Lovelaces counter that they were required to name the
new defendants as indispensable parties. Whether or not the Lovelaces were required to obtain leave of
court to add the new defendants to the SAC, the court is not persuaded that any failure to do so entitles
Nationstar to an order sustaining a demurrer. Nationstar has no evident standing to demur on behalf of
the newly named defendants. Moreover, it is unclear that the allegations relative to the newly named
defendants bear upon the question whether the Lovelaces have stated a cause of action against
Nationstar. And to the extent Nationstar wished to strike allegations directed against newly named
defendants as improper, it was required to file a motion to strike not a demurrer. Accordingly, the
allegations directed at newly named defendants do not lead the court to sustain Nationstar's demurrer.
Nationstar's request for judicial notice of recorded land documents is UNOPPOSED and GRANTED. In
taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of
their contents. (Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)
Counsel are advised that the Sacramento County Superior Court's Local Rules were revised and
renumbered as of 01/01/13. When giving notice of the court's tentative ruling system, counsel should
cite Local Rule 1.06, not former Local Rule 3.04.
Nationstar is directed to file its answer no later than September 3, 2013.
DATE: 08/22/2013
DEPT: 54
MINUTE ORDER
Page 3
Calendar No.
The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is
required.
COURT RULING
There being no request for oral argument, the Court affirmed the tentative ruling.
DATE: 08/22/2013
DEPT: 54
MINUTE ORDER
Page 4
Calendar No.
TIME: 09:00:00 AM
JUDICIAL OFFICER PRESIDING: Raymond Cadei
CLERK: D. Ahee, K. Pratchen
REPORTER/ERM: S. Adams CSR# 12554
BAILIFF/COURT ATTENDANT: C. Chambers
DEPT: 54
APPEARANCES
Aldon L Bolanos, counsel, present for Plaintiff(s).
Deanna Rogers, Plaintiff is present.
Walter Dauterman, counsel, present for the Plaintiff.
Elizabeth Rogers was present.
Tiffany Rochet, counsel, present telephonically for the Defendant.
Nature of Proceeding: TRO OSC RE: Preliminary Injunction
TENTATIVE RULING
Plaintiff Deanne Rogers' motion for preliminary injunction is GRANTED.
Plaintiff moves for an injunction preventing Defendant OneWest Bank FSB or its agents from taking any
action to sell, transfer, encumber, or otherwise interfere in any manner whatsoever to her title to her
home at 8340 Linderhof Way, Sacramento, CA 95828.
This is an action for violation of the California Homeowner Bill of Rights (Civ. Code 2923.6 and
2923.7.) Plaintiff alleges that violated the Homeowner Bill of Rights by dual-tracking her into foreclosure
with multiple points of contact.
CCP Section 527 generally authorizes a court to enter a preliminary injunction. "To obtain a preliminary
injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm
that it will suffer if an injunction is not issued pending an adjudication of the merits. Past California
decisions further establish that, as a general matter, the question whether a preliminary injunction should
be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits,
and (2) the relative balance of harms that is likely to result from the granting or denial of interim
injunctive relief." (White v. Davis (2003) 30 Cal.4th 528, 554.)
"[T]he party seeking the injunction must present sufficient evidentiary facts to establish a likelihood that it
will prevail." (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Board (1994) 23
Cal.App.4th 1459, 1478.) In support of her motion, Plaintiff presents evidence that on April 15, 2013 she
contacted Defendant regarding a possible loan modification. (Declaration of Deanna Rogers ("Rogers
Declaration"), 3.) On April 23, 2013, Plaintiff received a Residential Mortgage Assistance ("RMA")
DATE: 08/19/2013
DEPT: 54
MINUTE ORDER
Page 1
Calendar No.
package from Defendant. (Id., Ex. 1.) Plaintiff sent a completed package on May 6, 2013. (Id., 4, Ex.
2.) On May 10th, John from OneWest called and left Plaintiff a voicemail indicating that he would be the
single point of contact and that the application was being processed. (Id. 5.) Plaintiff attempted to
return John's call on multiple occasions, but her call was not returned. (Id.) On May 29, 2013, Plaintiff
found the Notice of Trustee's sale posted to her door. (Id. 6.) In response, Plaintiff phoned Defendants
and spoke with Brian Fearon who indicated that he would be the single point of contact and that her loan
was being processed and no further documents were required. (Id. 7.) Mr. Fearon refused to consider
postponing the Trustee's Sale. (Id.) On June 5, 2013, Plaintiff called Defendant to check on the status
of her application. She spoke with "Donita" who indicated that she was the single point of contact and
that no additional paperwork would be required. (Id. 8.) Plaintiff later received a call from Donita
requesting that she resubmit her information directly to the underwriter. (Id. 9.) Plaintiff has not
received any notification that her loan modification had been denied or rejected. (Id. 11.)
Plaintiff argues that Defendant's conduct violated various provisions of the recently-enacted Homeowner
Bill of Rights. Plaintiff contends that Civil Code 2923.6(c) prohibits a lender from recording a notice of
default or notice of sale, or conducting a trustee's sale while a loan modification application is pending. A
lender must make a written determination that the borrower is not eligible for a loan modification before it
may proceed with the foreclosure process. (Civil Code 2923.6(c)(1).) Plaintiff also argues that
Defendant violated the "single point of contact" rule which provides 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(a).)
Civ. Code 2923.6
In opposition, Defendant argues that it did not receive Plaintiff's RMA by May 28, 2013 (day of the Notice
of Trustee's Sale was recorded.) Defendant correctly notes that the RMA package attached as Exhibit 2
to Plaintiff's declaration is not signed or dated. (See Rogers Declaration, Ex. 2.) Plaintiff's declaration
states that she mailed the RMA on May 6, 2013.
Defendant further argues that in November 2012, Plaintiff applied for, but was denied a HAMP loan
modification because she had insufficient income to qualify for the modification. (Declaration of Charles
Boyle ("Boyle Decl."), 8.) Plaintiff's HAMP application was denied in April 2013. (Id. 9.) According
to Defendant, pursuant to Civ. Code 2923.6(g), it was not obligated to re-review Plaintiff for a loan
modification without sufficient showing that Plaintiff's financial condition changed since her HAMP denial.
Civ. Code 2923.6(g) provides
In order to minimize the risk of borrowers submitting multiple applications for first lien loan modifications
for the purpose of delay, the mortgage servicer shall not be obligated to evaluate applications from
borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien
loan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to
be evaluated consistent with the requirements of this section, unless there has been a material change
in the borrower's financial circumstances since the date of the borrower's previous application and that
change is documented by the borrower and submitted to the mortgage servicer.
(Civ. Code 2923.6(g).)
In reply, Plaintiff argues that Civ. Code 2923.6(g) does not apply here because the Homeowners' Bill of
Rights does not apply retroactively to a 2012 loan modification request. While the Homeowners' Bill of
Right was effective January 1, 2013, the Court is not convinced that the retroactivity doctrine applies
here. (See e.g. Michael J. Weber Living Trust v. Wells Fargo Bank, N.A. (N.D. Cal. Mar. 25, 2013) 2013
U.S. Dist. LEXIS 41797, *11-12 [because Plaintiff had not demonstrated that there was a material
DATE: 08/19/2013
DEPT: 54
MINUTE ORDER
Page 2
Calendar No.
change in his financial circumstances since his last denial in June 2012, Plaintiff had not demonstrated
that it is likely to succeed on its Homeowners' Bill of Rights causes of action.].) Moreover, as drafted
Civ. Code 2923.6(g) applies to evaluations made prior to January 1, 2013.
Given the above, for the purposes of this motion only, the Court finds that Plaintiff has not shown a
likelihood of prevailing on her Civ. Code 2923.6 cause of action.
Civ. Code 2923.7
In opposition, Defendant argues that it assigned Ben Work as Plaintiff's single point of contact and "loan
counselor" as noted in Defendant's letters sent on May 31, June 6, June 14 and June 25. (See Boyle
Decl., 12.) According to Defendant, Plaintiff concedes that she took it upon herself to contact various
representatives at OneWest before she was assigned a single point of contact. (Opposition, 4:28-5:1.)
"The single point of contact provision. . . is intended to prevent borrowers from being given the
runaround, being told one thing by one bank employee while something entirely different is being
pursued by another. Under the legislation, the single point of contact must be responsible for, among
other things, "[h]aving access to current information and personnel sufficient to timely, accurately, and
adequately inform the borrower of the current status of" his loan modification request and "[h]aving
access to individuals with the ability and authority to stop foreclosure proceedings when necessary."
(Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 904-905 [internal citations omitted].)
In reply, Plaintiff proffers a May 20, 2013 email from Brian Fearon from OneWest seeking updated
information on Plaintiff's application. (Reply Declaration of Deanna Rogers, Ex. 1.) Plaintiff responded,
and on May 29, 2013, Mr. Fearon directed Plaintiff to reapply for HAMP. (Id.) Plaintiff contends that this
email demonstrates that Defendant received the completed loan modification application as early as
May 20, 2013 and that Mr. Fearon was another point of contact.
The Court finds that for the purposes of this motion only, that Plaintiff has presented sufficient
evidentiary facts to establish a likelihood that she will prevail. (Tahoe Keys Property Owners' Assn.,
supra, 23 Cal.App.4th at 1478.) Given the May 20th email, it appears that Mr. Fearon was Plaintiff's
single point of contact. Although Mr. Fearon directed Plaintiff to reapply for HAMP, "the single point of
contact shall remain assigned to the borrower's account until the mortgage servicer determines that all
loss mitigation options offered by, or through, the mortgage servicer have been exhausted or the
borrower's account becomes current." (Civ. Code 2923.7(c).) Thus, it appears that Mr. Fearon should
have remained Plaintiff's single point of contact because he had not yet determined that all loss
mitigation options had been exhausted. Based on the foregoing, the Court concludes that Plaintiff has
met her burden to demonstrate a
likelihood of prevailing on the merits of her claims.
Balance of the Harms
The Court agrees that Plaintiff will undoubtedly suffer great injury if her residence is sold. Accordingly,
the relevant factors favor Plaintiff, and the court will grant the motion for preliminary injunction.
Bond is set in the amount of $10,000.
The prevailing party shall prepare a formal order for the Court's signature pursuant to C.R.C. 3.1312.
Although the notice of motion provided notice of the Court's tentative ruling system as required by Local
Rule 1.06, the notice does not comply with the current rule. Moving counsel is directed to review the
Local Rules, effective January 1, 2013.
DATE: 08/19/2013
DEPT: 54
MINUTE ORDER
Page 3
Calendar No.
COURT RULING
The matter was argued and submitted. The Court affirmed the tentative ruling. The $10,000 bond to be
posted by close of business on 8/20/13.
DATE: 08/19/2013
DEPT: 54
MINUTE ORDER
Page 4
Calendar No.
1417736
(1) To quash service of summons on the ground of lack of jurisdiction of the court
over him or her.
A motion to quash is the proper procedure to challenge an unlawful detainer
complaint on the ground that the court lacks personal jurisdiction. Parsons v.
Superior Court (2007) 149 Cal.App.4th Supp. 1. In Parsons, plaintiff landlord
served defendants, the owners of a houseboat, with a 30-day notice to terminate
their tenancy. After defendants failed and refused to vacate the tenancy, plaintiff
filed an unlawful detainer complaint and obtained a court order allowing it to serve
the complaint by posting. Defendants responded by filing a motion to quash service
of the summons on the ground that the Floating Home Residency Law (Civ. Code
800.70) requires a 60-day notice to terminate a houseboat tenancy. The trial court
denied the motion, but the appellate division of the superior court reversed and
ordered the trial court to hold further proceedings on the merits of the motion. The
court found that defendants use of a motion to quash was proper because the
challenge to the notice extended beyond the face of the complaint to the issue
whether a 30-day or 60-day notice was required and the issue could only be resolved
by competent evidence. Id., at 7.
California cases also hold that if an unlawful detainer action is filed prematurely,
i.e., before expiration of the applicable notice period, the complaint is defective and
must be dismissed. See, Lamanna v. Vognar (1993) 17 Cal.App.4th Supp. 4, 6
(holding that unlawful detainer action for nonpayment of rent filed prematurely
because 3-day notice period had not yet expired). The only recourse in such cases is
to refile the complaint after the claim has properly ripened into a cause of action.
Lee v. Bank of America (1994) 27 Cal.App.4th 197, 205.
In the case at bar, defendant Brooke Robbins contends that she is covered by Code
of Civil Procedure Section 1161b, subdivision (a), which provides:
Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental
housing unit under a month-to-month lease or periodic tenancy at the time the
property is sold in foreclosure shall be given 90 days written notice to quit pursuant
to Section 1162 before the tenant or subtenant may be removed from the property
as prescribed in this chapter.
Section 1161b, subdivision (d), provides an exception to the 90-day notice
requirement and states:
This section shall not apply if any party to the note remains in the property as a
tenant, subtenant, or occupant.
Plaintiff alleges in its complaint that Vincent and Virginia Robbins, the former
borrowers, are still co-occupant[s] of the property therefore it was only necessary
to serve Brooke Robbins with a 30-day notice to vacate the premises, pursuant to
Code of Civil Procedure Section 1161a, subdivision (c). (Comp., 8, 10.) In the
motion to quash, Brooke Robbins disputes this allegation, claiming that her parents
vacated the property after a judgment of eviction was entered against them on May
9, 2013 in Santa Barbara Superior Court Case No. 1414898. (B. Robbins Dec., 11.)
Brooke Robbins says that her parents have not remained at the property, and are
not co-occupants of the property, but instead, reside with her brother, Brian
Robbins, at 3626 San Remo Drive in Santa Barbara. (Ibid.) The court
finds this evidence persuasive and will grant the motion to quash as to defendant
Brooke Robbins for failure to serve her with a 90-day notice unless plaintiff can
present more persuasive evidence to the contrary at the hearing on the motion. (In
an unlawful detainer action, any opposition to a motion to quash may be filed up to
the day before the hearing or may be made orally at the hearing. Cal. Rules of
Court, Rule 3.1327(b)(c).) Assuming a 90-day notice was required, the complaint
filed on June 25, 2013 was too early because Brooke Robbins was only served with
the notice to vacate 40 days earlier, on May 16, 2013.
Defendants argue that the notices to vacate are void for the additional reason that
they did not contain language regarding defendants right to reclaim abandoned
property, as required by Civil Code Section 1946.1, subdivision (h). That section
provides:
Any notice given by an owner pursuant to this section shall contain, in
substantially the same form, the following:
State law permits former tenants to reclaim abandoned personal property left at
the former address of the tenant, subject to certain conditions. You may or may not
be able to reclaim property without incurring additional costs, depending on the
cost of storing the property and the length of time before it is reclaimed. In general,
these costs will be lower the sooner you contact your former landlord after being
notified that property belonging to you was left behind after you moved out.
Defendants contend that Civil Code Section 1946.1(h) and Code of Civil Procedure
Section 1161b(a) co-exist and that they were entitled to a 90 days notice that
included language about their right to reclaim abandoned property. The court
disagrees. The language about reclaiming abandoned property only applies when
an owner of residential property gives notice pursuant to this section, i.e., Civil
Code Section 1946.1. That section requires that a lease be terminated with either a
60-day or 30-day notice, depending on how long the tenant has resided at the
property. The code section has no application here, where notice
to vacate was given pursuant to Code of Civil Procedure Section 1161b(a). The
motion to quash for failure to include the language in Civil Code Section 1946.1(h)
in the notices will therefore be denied.
Tentative Ruling:
The motion to quash service of the summons on defendant Brooke Robbins is
granted, unless plaintiff can present persuasive evidence that Vincent and Virginia
Robbins are still co-occupants in possession of the subject property. In all other
respects, the motion to quash is denied. Defendant Robert Pastor is ordered to file
his answer to the complaint within 5 days of the date of this ruling.
27
28
This free webinar will introduce the basic structure of the federal Home Affordable
Modification Program (HAMP) and place it in the context of other available
modification programs. We will review topics including eligibility, how modifications
are done, and servicer requirements for timing and notice. Updates on recent
developments will be included.
Presenter: Alys Cohen, staff attorney, National Consumer Law Center
The HBOR Collaborative is comprised of San Francisco-based housing
advocacy center, the National Housing Law Project (NHLP), and its project partners,
Western Center on Law & Poverty, the National Consumer Law Center, and Tenants
Together. The HBOR Collaborative is funded by the Office of the California Attorney
General under the national Mortgage Settlement. The HBOR Collaborative offers
free training, technical assistance, litigation support, and legal resources to
Californias consumer attorneys and the judiciary on all aspects of the new California
Homeowner Bill of Rights (HBOR). The goal of the Collaborative is to ensure that
Californias homeowners and tenants receive the intended benefits secured for
them under the Homeowner Bill of Rights by providing legal representation with a
broad array of support services and practice resources. To learn more about
California HBOR and all upcoming trainings, consumer attorneys should go
to http://calhbor.org/. Register here or at the HBOR Collaborative for this training.
After registering, you will receive a confirmation email containing information
about joining the webinar.
System Requirements:
PC-based Attendees: Require Windows 8, 7, Vista XP, or 2003 Server, Mac-based
Attendees: Require Mac OSX 10.6 or newer, Mobile attendees: IPhone, IPad,
Android phone or Android tablet.
Questions?
If you need help registering for this webinar, please contact jhiemenz@nclc.org
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The HBOR Collaborative and its services, including this free training for
attorneys, are funded by a grant from the Office of the Attorney General of
California from the National Mortgage Settlement to assist California
consumers. This training would not be possible without the invaluable support
of our partners the California State Bar and Housing Opportunities
Collaborative.
Note: Please visit our web site at www.calhbor.org for information on
other upcoming trainings.
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