CECILIA OKONKWO, ET AL., VS BANK OF AMERICA, N.A., ET AL.,

Tentative Rulings

Case Number: SC125602    Hearing Date: April 30, 2021    Dept: P

Tentative Ruling

Okonkwo et al. v. Bank of America, N.A. et al., Case No. SC125602

Hearing Date April 30, 2021

Defendant’s Motion to Set Aside Default (UNOPPOSED)

On July 23, 2020 plaintiffs obtained default against defendant Bank of New York Mellon, which moves to set aside.

Default can be set aside if service of summons did not result in actual notice, default was taken against the nonresponding party, notice of the motion to set aside has been timely filed, and lack of actual notice did not result from the party’s avoidance of service or inexcusable neglect. Cal. Code of Civ. Proc. §473.5(a)-(c). A motion to set aside is timely if it is filed no more than two years after the entry of default judgment or 180 days after service of written notice of default, whichever is earlier. Id. Public policy instructs courts to liberally grant motions set aside default, since matters should be adjudicated on their merits rather than via default. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.

Defendant did not receive notice of plaintiffs’ amendment adding Bank of America as a Doe defendant until learning of the default; thereafter, defendant timely moved to set aside after failing to obtain a stipulation from plaintiffs. Defendant initially filed the motion on 1/27/2021, but withdrew it because plaintiffs were inadvertently not served. Yoon Decl. ¶13. The motion is unopposed, so Yoon’s explanation is accepted, and the motion is deemed timely filed. The court will err on the side of resolving this matter on the merits and set the default aside under §473.5. GRANTED.

DUE TO THE ONGOING COVID-19 PANDEMIC PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR BY LA COURT CONNECT.

Case Number: SC125602    Hearing Date: February 24, 2021    Dept: P

Tentative Ruling

Okonkwo et al. v. Bank of America, N.A., Case No. SC125602

Hearing Date February 24, 2021

Defendant Bank of America’s Motion for Summary Judgment

In May 2011 plaintiffs sought to modify their mortgage from defendant Bank of America, N.A. (BANA). On August 9, 2011 BANA sent a written Loan Modification Trial Period Plan, with terms for a loan modification. If plaintiffs made three timely monthly payments and signed the final modification agreement, they would qualify for a loan modification. Plaintiffs allege they made the payments but did not receive a good-faith loan modification offer. BANA argues the modification was denied because of multiple unsatisfied liens on the property. The third amended complaint contains a cause of action for breach of contract against BANA.

Evidentiary Objections: Plaintiffs’ objections OVERRULED.

Breach of Contract

The elements of a cause of action for breach of contract are (1) existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach and (4) damages. CDC Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239. Where a contract “is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable. Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 777. Preliminary negotiations or agreements for future negotiations – “agreements to agree” – are not enforceable. Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1174.

The breach of contract claim is based on allegations that BANA violated its promise to provide a good-faith loan modification offer if plaintiffs fulfilled the requirements of the trial period plan (TPP.) TAC ¶¶89-91. Plaintiffs allege both oral and written agreements establishing the terms of the TPP. Id. ¶¶85-88.

Defendant argues the written TPP was not an enforceable contract because its terms were uncertain and indefinite. The TPP did not set out final terms for a future modification agreement, stating “[o]nce you have completed your Trial Payments, and after applying any remaining money at the end of the Trial Period, we will determine the new payment amount and the remaining final terms of your Modification Agreement[.]” Absent defined terms for the future modification agreement, the TPP was uncertain and unenforceable.

In Nungaray v. Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, 1504, the court rejected an argument that a similar trial period plan prior was an enforceable contract. BANA argues the alleged oral promise that plaintiffs would receive a loan modification with the same monthly payment amounts as the TPP is unenforceable under the statute of frauds and is uncertain as to basic terms such as the loan amount, interest rate, or maturity date. Even if the TPP was an enforceable contract, BANA complied with its terms, making a good faith modification agreement requiring plaintiffs to resolve the outstanding liens on their property. Defendants’ sep. stmt. nos. 15, 20. Plaintiffs failed to resolve the liens, so the modification was denied.

Plaintiffs argue the TPP was a clear and unambiguous promise, they complied with their obligations, and defendant failed to uphold its end of the agreement. Plaintiffs cite Bushell v. JP Morgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 921, where a court held a TPP like the one here was not an unenforceable “agreement to agree,” but an enforceable contract with clear conditions precedent.

The terms of the TPP were clear and unambiguous. The TPP stated “you will receive a permanent modification of your account if you have a) paid each of the monthly trial period payments, and b) signed and returned the final modification agreement, which will be sent once you have completed your Trial Payments . . . after your third consecutive on-time Trial payment, the bank will contact you and will forward your Modification Agreement to you.” Plaintiffs’ response to def’s. sep. stmt. ¶22, italics added. Under the TPP, defendant agreed to provide a good-faith modification offer after plaintiffs made three timely payments. Plaintiffs provide evidence no offer was provided, though they made the required payments. Plaintiffs’ sep. stmt. at ¶¶ 29, 30. This is analogous to Bushell, where a cause of action for breach of contract was proper after plaintiffs complied with the terms of their TPP contract but did not receive a good faith permanent loan modification offer. The fact that the TPP was not, as in Bushell, subject to HAMP rules is irrelevant. In both cases plaintiffs provided evidence they fulfilled all obligations under a written TPP.

The facts are not analogous to Nungaray because there plaintiffs failed to submit documentation demonstrating financial hardship, so did not comply with all requirements of their TPP agreement. Nungaray, supra, at 446. The evidence indicates plaintiffs complied with all obligations under the TPP. Further, plaintiffs provide evidence that defendant never informed them resolving outstanding liens was a prerequisite to obtaining the loan modification. Plaintiffs’ response to sep. stmt. ¶¶9-11. There is a triable issue of fact as to defendant’s claim that plaintiffs received a good-faith modification offer but failed to comply with its lien requirement.

As in Bushell, the TPP did not constitute an unenforceable “agreement to agree,” but an agreement by defendant to offer a good-faith modification after plaintiffs made three required payments. Plaintiffs made those payments. There is a triable issue of fact as to whether defendant made a good faith modification offer afterward that required plaintiffs to resolve all outstanding liens on the property before the loan could be modified. DENIED.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.

Case Number: SC125602    Hearing Date: January 30, 2020    Dept: P

Tentative Ruling

Sean Simms v. Deutsche Bank National Trust Co. Case Number 19STLC08429

Hearing Date: January 30, 2020

Defendant Deutsche Bank’s Demurrer to Complaint

Plaintiff alleges he entered into a lease agreement with his building’s previous owner in April 2016 and the building was later purchased by Deutsche Bank, which confirmed the lease’s term and accepted plaintiff as a continuing tenant. Plaintiff alleges he has been prevented from using a garage and sues for declaratory relief regarding his right to possession of the garage.

Defendant argues it is not a party to the lease. Plaintiff alleges Deustche Bank “acknowledged all terms to [plaintiff’s] lease,” including provisions related to the garage. For purposes of pleading, this allegation is treated as true. While this may be a question of fact, it is not properly decided on demurrer.

Deustche also argues plaintiff does not allege any misconduct by Deutsche. As “misconduct” is not an element of a declaratory relief claim, its absence is irrelevant.

Deustche argues the lease expired on its own terms as of March 31, 2019. However, per Cal. Civ. Code §1945, parties to a lease are “presumed to have renewed the hiring on the same terms and for the same time,” if the lessee remains in possession after expiration of the lease term and lessor continues accepting rent. Cal. Civ. Code §1945. As plaintiff alleges he continues to pay rent and remains in possession (Complaint at ¶12), whether the lease has expired or been renewed is a question of fact.

Defendant argues plaintiff cannot allege existence of an actual, present controversy because Deutsche engaged in no wrongful conduct and the purported lease agreement no longer exists. The court addressed those arguments above.

Defendant argues declaratory relief operates prospectively and cannot be used to redress past wrongs. Plaintiff seeks a declaration of the parties’ rights and obligations regarding use of the garage. This is a proper subject for declaratory relief.

Finally, defendant argues plaintiff has not sufficiently alleged damages. Damages are not a required element of declaratory relief, nor are they recoverable in a declaratory relief action.

The demurrer is OVERRULED. The court will, on its own motion strike the plaintiff’s request for damages (page 4, paragraph 4), without leave to amend.