1. MCV-230253, Collectronics, Inc. v. Shariff
Plaintiff’s unopposed motion for an order: (1) approving final report and accounting and final compensation of receiver; (2) discharging receiver; (3) terminating receivership; and (4) abandoning books and records is GRANTED.
2. MCV-248503, Looney v. Kaur
Plaintiff’s unopposed motion for appointment of receiver pursuant to CCP §708.630, and to appoint Michael Brewer as receiver is granted. The court finds appointment of a receiver to seize and sell defendant’s liquor license (number 581254) is warranted under the circumstances. Based on Mr. Brewer’s declaration, the court finds he is well-qualified to act as the receiver. Mr. Brewer shall post an undertaking in the amount of $1000 upon his appointment.
Plaintiff shall submit an order consistent with this ruling which details Mr. Brewer’s powers and duties.
3. SCV-262430, Teuma v. Marvin Lumber And Cedar Company
Plaintiff’s motion to compel the deposition of Defendant Marvin Lumber and Cedar Company’s person most qualified is continued by the court to be heard in Department 19 at 2 p.m. on September 18, 2019.
4. SCV-263983, Jones v. Select Portfolio Servicing, Inc., a business entity
Defendants’ demurrer is SUSTAINED.
Defendants’ unopposed request for judicial notice is granted.
In this foreclosure action, plaintiff alleges the following causes of action in her first amended complaint (“FAC”): (1) Violation of Civil Code §2924.11; (2) Violation of Civil Code §2923.7(b)(5); (3) Violation of Civil Code §2923.7(b)(1) & (2); (4) Negligence; and (5) Violation Business and Professions Code §17200, et seq.
Procedurally, a February 2019 trustee’s sale of plaintiff’s real property was temporarily enjoined by court order, but the court subsequently issued a written ruling denying plaintiff’s motion for a preliminary injunction. The court found plaintiff had failed to establish she would prevail on the merits. Plaintiff filed the FAC shortly thereafter. The FAC appears largely the same as the original complaint, however, plaintiff has added JPMorgan Chase Bank, NA as a defendant.
Plaintiff’s claims against defendants generally rest on the following. She alleges defendants engaged in dual tracking by actively foreclosing on her home while her loan modification application was still pending and that her single point of contact failed to properly communicate with her and manage her application materials. Plaintiff alleges these were material violations. “A violation is material if it affects the borrower’s loan obligations or disrupts the loan modification process.”(McKinney v. Wells Fargo Bank, N.A. (E.D. Cal., July 1, 2019, No. 2:17-CV-02564-TLN-DB) 2019 WL 2725343, at *3.) Plaintiff further asserts that these same facts support her claims that defendants’ were negligent and violated the Unfair Competition Law. Plaintiff seeks injunctive relief and damages.
1st through 3rd Causes of Action Against Select Portfolio Servicing, Inc.
“[I]njunctive relief is available only if a foreclosure sale is pending.” (Shupe v. Nationstar Mortgage LLC (E.D. Cal. 2017) 231 F.Supp.3d 597, 603; see also Tobin v. Nationstar Mortgage, Inc. (C.D. Cal., May 2, 2016, No. 216CV00836CASASX) 2016 WL 1948786, at *11.)
In the opposition, plaintiff asserts that “Defendant intends to foreclosure [sic] on Plaintiff’s property on February 25, 2019.” (Opposition, p. 3, line 20.) The FAC was filed on June 7, 2019, long after this sale date came and went, and the FAC itself does not allege an actual pending sale date. Consequently, plaintiff is not entitled to injunctive relief and her claims for violations of Civil Code sections 2924.11 and 2923.7 fail.
Additionally, plaintiff’s first cause of action for violation of Civil Code §2924.11 fails because plaintiff fails to plead actual facts showing her loan modification application was complete. As one of the numerous cases cited by defendants states: “Whether a loan modification application is ‘complete’ is a legal determination that must be made by considering the mandates of section 2923.6(h). A bald allegation that a party submitted ‘complete’ loan modification applications-without sufficient supporting factual allegations-is a conclusory statement, and the Court does not rely on such assertions in evaluating the sufficiency of Plaintiff's complaint.[Citation.] Indeed, courts typically uphold the sufficiency of such claims only upon the submission of robust factual allegations demonstrating that the application was complete.” (Stokes v. CitiMortgage, Inc. (C.D. Cal., Sept. 3, 2014, No. CV 14-00278 BRO SHX) 2014 WL 4359193, at *7.) Plaintiff cited no authority to the contrary.
Here, plaintiff merely alleges that “Defendant recorded a Notice of Trustee’s Sale during the course of Plaintiff’s ongoing review for a foreclosure prevention alternative, after Plaintiff submitted all application materials and had a complete application pending.” (FAC, ¶28.) She later alleges that defendant Select Portfolio Servicing, Inc. requested “certain information (Request for Mortgage Assistance Form, IRS Form 4506T, tax returns) for Plaintiff’s then-ongoing loss mitigation review.” (FAC, ¶41.) Per plaintiff, she supplied “the requested documents.” (FAC, ¶42.) Notably, this court found plaintiff’s allegations on this issue insufficient in denying preliminary injunctive relief but plaintiff still failed to subsequently augment her facts in the FAC. It appears plaintiff has no such facts.
Plaintiff’s second and third causes of action for violations of Civil Code §2923.7 also fail because she fails to allege facts showing those violations were material.
“No statute or California state court has defined materiality for purposes of section 2924.12, however, courts examining this issue have concluded that a violation is ‘material’ if it is plausible that the violation ‘affected a plaintiff’s loan obligations or the modification process.’ See, e.g., Cornejo v. Ocwen Loan Serv., LLC, 151 F. Supp. 3d 1102, 1113 (E.D. Cal. 2015) (collecting cases); Cardenas v. Caliber Home Loans, Inc., 281 F. Supp. 3d 862, 869-71 (N.D. Cal. 2017) (agreeing that a ‘material violation’ is one that affects the plaintiff’s loan obligations or the loan modification process).” (Greene v. Wells Fargo Bank, N.A. (N.D. Cal., Mar. 25, 2019, No. 18-CV-06689-JSC) 2019 WL 1331027, at *8.)
In Shupe v. Nationstar Mortgage LLC (E.D. Cal. 2017) 231 F.Supp.3d 597, 603, the court found allegations of materiality insufficient: “Plaintiffs' application was processed and Plaintiffs were given an opportunity to appeal its denial. [Citation.] Plaintiffs have not explained how the alleged denial of their right to a SPOC in any way affected their loan obligations or the modification process.”
Here, apart from failing to adequately allege that she submitted a complete application in the first place, plaintiff alleges defendant Select Portfolio Servicing, Inc. determined that she had failed to provide application materials and therefore did not evaluate her account for loss mitigation and closed review of her account. (FAC, ¶25.) Plaintiff further alleges that she appealed this determination and her appeal “clearly demonstrated that Defendant’s…decision was erroneous.” (FAC, ¶¶27 & 28.) Therefore, plaintiff was given the opportunity to challenge defendant’s conclusion that her application was incomplete and the application was still rejected. She has failed to explain how any failure on the SPOC’s part up until that time affected her loan modification process.
Accordingly, the court sustains the demurrer to the first through third causes of action.
4th Cause of Action Against All Defendants
Plaintiff alleges the same facts that support her statutory violations also amount to negligence. There is currently a split of authority over whether defendants owed plaintiff a duty under the circumstances. (Compare Lueras v. BAC Home Loans Serv.,
LP (2013) 221 Cal. App. 4th 49, 67 [no duty owed] with Alvarez v. BAC Home Loans Serv., L.P. (2014) 228 Cal. App. 4th 941, 947-51 [duty owed].) However, even assuming, without deciding, that defendants did owe plaintiff a duty here, she has failed to allege facts supporting the remaining elements of negligence. For instance, plaintiff has not alleged any facts showing defendants did not review her application before finding it incomplete and so informing her. Moreover, she has not demonstrated by facts pled that defendants’ review process caused her harm as opposed to her inability to repay the loan.
It also appears that this claim is time-barred as to defendant JPMorgan Chase. It is undisputed that the three-year statute of limitations under CCP §338(b) applies. Plaintiff alleges that JPMorgan Chase serviced her loan before Select Portfolio Servicing, Inc. took on that duty in 2015. This action was filed over three years later in February 2019. Plaintiff makes no argument on this issue but merely requests leave to amend to plead a claim that is not time-barred. She articulates no facts or legal basis whatsoever for doing. The court sustains this cause of action as to both defendants without leave to amend.
Defendants argue plaintiff’s action is barred by application of judicial estoppel. Plaintiff has filed petitions for Chapter 13 bankruptcy three times since May of 2018. The first two applications were filed before this action and dismissed for plaintiff’s failure to file the required documents. (See Defendants’ RJN, Exs. L-P.) Plaintiff’s most recent petition was filed months after this action on June 15, 2019 and is still pending. Per defendants, where a debtor fails to give notice of a potential claim in her bankruptcy schedules, she is judicially estopped from prosecuting that cause of action in subsequent proceedings.
“Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position. Aside from preventing inconsistency, the Ninth Circuit applies this discretionary equitable doctrine out of general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing fast and loose with the courts.” (Natividad v. Resmae Mortgage Corporation (N.D. Cal., Sept. 17, 2015, No. 5:15-CV-02359-EJD) 2015 WL 5544278, at *2, internal citations and quotations omitted.)
As the Natividad Court went on to reason:
While “[c]ourts have observed that ‘the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,’ ” (New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982)), three non-exhaustive factors are routinely considered: (1) whether the party's later position is “clearly inconsistent with its earlier position;” (2) “whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled;” and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Hamilton, 270 F.3d at 782–83 (citing New Hampshire, 532 U.S. at 750–51).
“The application of judicial estoppel is not limited to bar the assertion of inconsistent positions in the same litigation, but is also appropriate to bar litigants from making incompatible statements in two different cases.” Id. at 783. Thus, “[i]n the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements.” Id. This is because “[t]he debtor, once he institutes the bankruptcy process, disrupts the flow of commerce and obtains a stay and the benefits derived by listing all his assets.” Id. at 785. Indeed, “[w]here a debtor files successive petitions and obtains successive stays without full disclosure of all assets, the debtor derives an unfair advantage if he can later recover on undisclosed claims, and the bankruptcy system is laid bare for abuse.” HPG Corp. v. Aurora Loan Servs., 436 B.R. 569, 578 (E.D.Cal.2010).
“The doctrine of judicial estoppel may apply where, as here, plaintiff’s bankruptcy cases were dismissed. In HPG Corp. v. Aurora Loan Services, LLC, 436 B.R. 569 (2010), plaintiff filed a bankruptcy petition and received an automatic stay of any act to obtain possession of property of the estate until the time of dismissal or discharge pursuant to 11 U.S.C. § 362(c)(3). Id. at 578. After that case was dismissed, he filed a second bankruptcy petition and received another automatic stay before the second petition was dismissed. Neither of the petitions disclosed claims against defendant. Id. The court granted defendant’s motion to dismiss without leave to amend, as it found the claims were judicially estopped. ‘Where a debtor files successive petitions and obtains successive stays without full disclosure of all assets, the debtor derives an unfair advantage if he can later recover on undisclosed claims, and the bankruptcy system is laid bare for abuse. As such, judicial estoppel must bar” plaintiff’s claims against defendant, the court reasoned.’” (Hobbs v. Wells Fargo Bank, N.A. (E.D. Cal., Jan. 4, 2018, No. 217CV01920KJMCKDPS) 2018 WL 288015, at *3.)
Plaintiff argues that judicial estoppel does not apply because the bankruptcy court did not confirm her plans and therefore did not rely on her position in the bankruptcy regarding her claims. However, she fails to distinguish defendants’ cited authority specific to bankruptcy cases. Alternatively, plaintiff argues that she “can fix any judicial estoppel issues with a simple motion to the bankruptcy court.” (Opposition, p. 12.) Plaintiff cites no authority for this proposition.
Accordingly, the court finds judicial estoppel is a further ground for sustaining the demurrer.
5th Cause of Action Against All Defendants
Plaintiff’s fifth cause of action alleging violation of Business and Professions Code sections 17200, et seq. is based on the above claimed violations of the Homeowner’s Bill of Rights and negligence. The court has found these predicate causes of action fail, therefore so does this claim.
In sum, the court sustains the demurrer without leave to amend. “Plaintiff must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, plaintiff has failed to make any such showing.
Defendants shall prepare an order consistent with this ruling.
5. SCV-264514, Von Strasser Winery v. Executive Wines, Inc.
Plaintiff Von Strasser Winery’s “Motion for Substituted Service and to Deem Service Completed” is DENIED. There are no legal grounds cited for the relief sought and no apparent basis for this court to “deem service completed” as requested by plaintiff. Additionally, plaintiff has failed to comply with California Rules of Court, Rules 3.1110, et seq.