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This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 14:56:11 (UTC).

CHRISTOPHER HART VS SELECT PORTFOLIO SERVICING INC ET AL

Case Summary

On 12/09/2016 CHRISTOPHER HART filed a Property - Foreclosure lawsuit against SELECT PORTFOLIO SERVICING INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3405

  • Filing Date:

    12/09/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

HART CHRISTOPHER

Defendants and Respondents

PASEO REALTY INC.

SELECT PORTFOLIO SERVICING

BANK OF AMERICA CORPORATION

NATIONAL DEFAULT SERVICING CORPORATION

ALL PERSONS UNKNOWN CLAIMING ANY LEGAL

COUNTRYWIDE HOME LOANS

BANK OF AMERICA HOME LOANS

DOES 1 THRU 20

BANK OF NEW YORK MELLON

Attorney/Law Firm Details

Defendant Attorneys

LOCKE LORD LLP

FENG SIMON M

 

Court Documents

OPPOSITION TO DEMURRER

7/2/2018: OPPOSITION TO DEMURRER

DEFENDANTS' REPLY IN SUPPORT OF THEIR DEMURRER TO THE FIRST AMENDED COMPLAINT

7/10/2018: DEFENDANTS' REPLY IN SUPPORT OF THEIR DEMURRER TO THE FIRST AMENDED COMPLAINT

RULING RE: DEFENDANTS SELECT PORTFOLIO SERVICING, INC., BANK OF NEW YORK MELLON, AND NATIONAL DEFAULT SERVICING CORPORATION'S DEMURRER TO THE COMPLAINT

7/16/2018: RULING RE: DEFENDANTS SELECT PORTFOLIO SERVICING, INC., BANK OF NEW YORK MELLON, AND NATIONAL DEFAULT SERVICING CORPORATION'S DEMURRER TO THE COMPLAINT

SECOND AMENDED COMPLAINT:

8/15/2018: SECOND AMENDED COMPLAINT:

Notice of Ruling

12/10/2018: Notice of Ruling

Answer

1/14/2019: Answer

Minute Order

1/25/2019: Minute Order

Minute Order

1/25/2019: Minute Order

Declaration

1/31/2019: Declaration

Declaration

4/8/2019: Declaration

Motion to Compel

4/8/2019: Motion to Compel

Motion to Compel

4/8/2019: Motion to Compel

Declaration

5/1/2019: Declaration

Notice of Ruling

5/8/2019: Notice of Ruling

Minute Order

5/8/2019: Minute Order

SUMMONS

12/9/2016: SUMMONS

Minute Order

6/30/2017: Minute Order

Minute Order

11/13/2017: Minute Order

79 More Documents Available

 

Docket Entries

  • 05/08/2019
  • at 09:00 AM in Department 61; Hearing on Motion to Deem Request for Admissions Admitted - Held - Motion Granted

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  • 05/08/2019
  • at 09:00 AM in Department 61; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 05/08/2019
  • at 09:00 AM in Department 61; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 05/08/2019
  • at 09:00 AM in Department 61; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 05/08/2019
  • Minute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery...)); Filed by Clerk

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  • 05/08/2019
  • Notice of Ruling (Ruling Re Defendants Select Portfolio Servicing, Inc.'s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Requests for Production, Set One, and to Deem Requests for Admission, Set One, Admitted); Filed by Clerk

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  • 05/01/2019
  • Reply (In Support Of Motion To Deem Requests For Admission Admitted (Set One)); Filed by Bank of New York Mellon (Defendant); National Default Servicing Corporation (Defendant); Select Portfolio Servicing (Defendant)

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  • 05/01/2019
  • Reply (In Support Of Motion To Compel Plaintiff's Responses To Requests For Production (Set One)); Filed by Bank of New York Mellon (Defendant); National Default Servicing Corporation (Defendant); Select Portfolio Servicing (Defendant)

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  • 05/01/2019
  • Declaration (Of Simon M. Feng In Support Of Reply In Support Of Motion To Deem Requests For Admission (Set One) Admitted); Filed by Bank of New York Mellon (Defendant); National Default Servicing Corporation (Defendant); Select Portfolio Servicing (Defendant)

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  • 05/01/2019
  • Reply (In Support Of Motion To Compel Plaintiff's Responses To Form Interrogatories (Set One)); Filed by Bank of New York Mellon (Defendant); National Default Servicing Corporation (Defendant); Select Portfolio Servicing (Defendant)

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153 More Docket Entries
  • 02/16/2017
  • Minute Order

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  • 02/01/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/01/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/10/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 01/10/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 01/10/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 12/09/2016
  • Complaint; Filed by Christopher Hart (Plaintiff)

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  • 12/09/2016
  • ORDER ON COURT FEE WAIVER

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  • 12/09/2016
  • SUMMONS

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  • 12/09/2016
  • COMPLAINT

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Tentative Rulings

Case Number: BC643405    Hearing Date: March 8, 2021    Dept: 61

Defendants Select Portfolio Servicing, Inc., Bank of New York Mellon f/k/a The Bank of New York as Trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificates Series 2006-OA19, and NDSC’s Motion for Attorneys’ Fees is GRANTED in the amount of $48,075.

Defendants to give notice.

  1. MOTION FOR ATTORNEY FEES

Defendants SPS, Mellon, and NDSC ask for an award of attorney fees in the amount of $59,943.00. (Motion at p. 4.)

“Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)

“In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).) “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Civ. Code, § 1717, subd. (b)(1).)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (See id.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at p. 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (See id. at p. 624.)

Defendants rely on an attorney fees provision contained in the settlement agreement that formed the basis for some of Plaintiff’s claims in this action, which states:

If any action is brought to enforce this Agreement, or is brought in connection with any dispute arising out of this Agreement or the claims which are the subject of this Agreement, the prevailing Party or Parties shall be entitled to recover damages, fees and other costs incurred in such litigation which they may prove are the direct and proximate result of any breach hereof in additional to any other relief which that Party or Parties may be entitled to by law.

(Feng Decl. Exh. 1, ¶ N.) This agreement was executed on December 2 and 3, 2014, by Plaintiff and all moving defendants.

The court agrees that Defendants are prevailing parties under this contract and Civil Code § 1717, as they have obtained adjudication of all of Plaintiff’s claims in their favor through this court’s order of October 20, 2020. Defendant NDSC also benefits from this judgment by virtue of its uncontested January 31, 2019 filing of a declaration of non-monetary status under Civil Code § 2924l, subd. (d).)

The attorney rates billed to defend this matter ranged from $300 to $390 per hour. (Feng Decl. ¶¶ 19–21.) Paralegals employed on this case billed $180 per hour. (Feng Decl. ¶ 22.) The court finds these hours reasonable.

Defendants have also filed invoices for the fees billed in this action. (Feng Decl. Exh. 6.) The court has reviewed the invoices, and identifies the following fees that were not reasonably incurred, most as duplicative of other, reasonable entries, and some seeking fees incurred in drafting motions to compel for which sanctions have already been authorized.

This yields a total lodestar reduction of $11,868.00, or a revised lodestar amount of $48,075.00.

The motion is therefore GRANTED in the amount of $48,075.00.

Case Number: BC643405    Hearing Date: October 20, 2020    Dept: 61

Defendants Select Portfolio Servicing, Inc., Bank of New York Mellon f/k/a The Bank of New York as Trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificates Series 2006-OA19’s Motion for Summary Judgment is GRANTED as to all causes of action.

Defendants to give notice.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants SPS and Mellon (Defendants) move for summary judgment as to Hart’s remaining causes of action for breach of contract, fraudulent transfer, and conspiracy, on the following grounds. Although Hart alleges that Defendants breached their settlement agreement with Hart by foreclosing on his property after promising to consider his loan modification application, Defendants actually considered the application and sent Hart notice of the need to make three trial period payments in June through August 2015. It was the failure to make these payments per the terms of Defendants’ proposed loan modifications which they now contend precipitated the foreclosure sale. (Motion at pp. 9–10.) Defendants further contend that Hart cannot maintain his fraudulent transfer claim because such claims are available only by creditors against debtors, and Hart is a debtor attempting to sue his creditors. (Motion at p. 11.) Defendants also contend that Hart lacks evidence that the sale was improperly conducted, that he was injured thereby, or that Defendants acted with an intent to defraud. (Motion at pp. 12–14.) Finally, Defendants argue that Hart cannot maintain his claim for conspiracy abstracted from his defective substantive claims. (Motion at p. 14.)

  1. BREACH OF CONTRACT — THIRD CAUSE OF ACTION

“A party's obligation, whether under a guarantee or a settlement agreement, is contractual. 

The elements of a cause of action for breach of contract are: “ ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.)

Defendants present the settlement agreement executed by Hart in December 2014 (Maynes Decl. Exh. 7.)[1] That agreement provides that if Hart submits a loan modification application to SPS, “SPS’s duty to review and/or process the application shall be governed by California law.” (Maynes Decl. Exh. 7.) SPS’s document control officer, Daniel Maynes, testifies that SPS sent a letter on April 24, 2015, after receiving such an application, stating that Hart had been approved to enter a trial period plan under the Home Affordable Modification Program, requiring Hart to make three monthly payments of $2,173.74 on June, July, and August 1 to qualify for a permanent modification. (Maynes Decl. ¶ 18, Exh. 8.) It is undisputed that SPS did not receive the trial payments. (PUMF No. 19.) A notice of trustee’s sale was recorded on August 26, 2015, and the property was sold on November 18, 2015. (Maynes Decl. ¶¶ 12–13, Exhs. 5, 6.)

Given the above, Defendants contend that they complied with the agreement by processing Hart’s application and notifying him of the trial period payment plan, and that it was Hart’s failure to make the payments that precipitated the sale. (Motion at pp. 9–10.) They satisfied the contract, they argue, by reviewing Hart’s application and sending him the letter.

Hart responds that it was not the letter or his failure to make the payments that forms the basis for his breach of contract claim, but the fact that he appealed SPS’s offer under Civil Code § 2923.6, subd. (d) and (e), and yet SPS refused to acknowledge his appeal and proceeded with its sale. (Opposition at pp. 8–11.)

Hart’s argument is unpersuasive for many reasons. For one, the basis that Hart presents for the breach of contract claim is different from the basis that he pleads in his SAC. The SAC does not contend that Hart appealed the April 2015 modification letter, but that he “was approved for a HAMP modification with payments beginning on June 1, 2015,” and that he “accepted the modification terms as agreed in full compliance with the binding modification June 1, 2015.” (SAC ¶¶ 37–38.) Indeed, he alleges that he considers the April 2015 letter and the trial payment plan (TPP) a “binding contract,” with the caveat that it required “defendant to provide plaintiff with a permanent loan modification agreement contingent upon plaintiff complying with the terms of the TPP.” (SAC ¶ 96.) Hart alleges that the notice of sale proceeded, not while he appealed the TPP, but after he complied with its terms. (SAC ¶ 97.) Yet Hart now acknowledges that he did not make the payments provided for in the TPP, contending instead that the TPP was “riddled with errors” that Defendants refused to correct. (Opposition at pp.10–11; PUMF No. 19.) Hart cannot alter his pleadings at will in an effort to defeat summary judgment. (See California Bank & Trust v. Lawler (2013) 222 Cal.App.4th 625, 637 fn. 3 [“The pleadings delimit the scope of the issues on a summary judgment motion.”].)

Moreover, Hart presents no evidence of the existence of this appeal, but merely asserts it in argument as a basis for denying the motion. There is no “substantial responsive evidence” to rebut the showing that Defendants have made here. (Sangster, supra, 68 Cal.App.4th at p.166.) Finally, the statutes and regulation that Hart relies upon to justify his appeal defense are legally inapplicable, as they apply to circumstances where a lender denies a loan modification application. (See Civ. Code § 2923.6, subd. (d), (e); 12 CFR § 1024.41, subd. (d), (e), (h).) Here, Hart’s application was not denied, but approved. (PUMF No. 18.) There was nothing to appeal.

Accordingly, the motion is GRANTED as to the third cause of action.

  1. FRAUDULENT TRANSFER — FIFTH CAUSE OF ACTION

A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim. The UFTA makes fraudulent transfers voidable: “(a) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: [¶] (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. [¶] (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: [¶] (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. [¶] (B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.” (§ 3439.04, subd. (a).)

(Nautilus, Inc. v. Yang (2017) 11 Cal.App.5th 33, 39, internal citations and quotation marks omitted.)

Defendants argue that (1) Hart was not a creditor of Defendants, but their debtor; (2) the foreclosure sale was made with published notice; and (3) the sale was made pursuant to Hart’s failure to make payments, not with fraudulent intent. (Motion at pp. 11–14.)

Hart makes no argument in opposition specifically addressing the points raised by Defendants, but rather resurrects his argument that the May 2011 assignment that formed the partial basis for his complaint in Case No. 556394, Hart v. Select Portfolio Servicing, which was dismissed with prejudice after Hart signed the settlement agreement that forms the basis for his claims here. (See RJN with Defendants’ Demurrer to FAC Exh. 7, BC556394 Complaint ¶ 49.) This court previously ruled on demurrer that Hart could not proceed with claims based on this argument as a matter of res judicata. (See 7/16/2018 Order.)

The court agrees with Defendants. Based on admitted facts concerning his mortgage, Hart was a debtor of Defendants, not a creditor. Hart provides no argument or basis for believing otherwise.

Accordingly, the motion is GRANTED as to the fifth cause of action. Because the remaining cause of action for conspiracy “is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration,” it furnishes no basis for liability if unsupported by the other claims in the SAC. Since the other claims are adjudicated, the motion is properly GRANTED in its entirety. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511-12.)


[1] Although the agreement presented is unsigned, Hart agrees that it is authentic and does not dispute its terms. (See Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 13–14.)

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