This case was last updated from Los Angeles County Superior Courts on 02/09/2021 at 17:08:53 (UTC).

MARICELA VARGAS VS OCWEN LOAN SERVICING LLC

Case Summary

On 03/04/2014 MARICELA VARGAS filed a Personal Injury - Other Personal Injury lawsuit against OCWEN LOAN SERVICING LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YVETTE M. PALAZUELOS and STEPHANIE M. BOWICK. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8182

  • Filing Date:

    03/04/2014

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

YVETTE M. PALAZUELOS

STEPHANIE M. BOWICK

 

Party Details

Plaintiff and Petitioner

VARGAS MARICELA

Defendants and Respondents

DOES 1 THROUGH 10

OCWEN LOAN SERVICING LLC

PHH MORTAGE CORPORATION AS SUCCESSOR BY MERGER

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GOLDEN JEREMY S.

Defendant and Respondent Attorneys

WRIGHT FINLAY & ZAK LLP

WOZNIAK LUKASZ I.

 

Court Documents

Appeal - Remittitur - Other - APPEAL - REMITTITUR - OTHER - AFFIRMED IN PART, REVERSED IN PART WITH DIRECTIONS. B276239 & B283934

6/18/2019: Appeal - Remittitur - Other - APPEAL - REMITTITUR - OTHER - AFFIRMED IN PART, REVERSED IN PART WITH DIRECTIONS. B276239 & B283934

Notice of Posting of Jury Fees

8/27/2019: Notice of Posting of Jury Fees

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (IN CHAMBERS COURT ORDER) OF 09/03/2019

9/3/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (IN CHAMBERS COURT ORDER) OF 09/03/2019

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

10/18/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS

11/12/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

11/12/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

12/2/2020: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

PLAINTIFFS APPELLANTS NOTICE OF DESIGNATION OF EXHIBITS ON APPEAL

6/11/2018: PLAINTIFFS APPELLANTS NOTICE OF DESIGNATION OF EXHIBITS ON APPEAL

COMPLAINT AND DEMAND FOR JURY TRIAL

3/4/2014: COMPLAINT AND DEMAND FOR JURY TRIAL

DECLARATION OF BRADFORD E. KLEIN IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR ETC.

7/30/2015: DECLARATION OF BRADFORD E. KLEIN IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR ETC.

PROOF OF SERVICE

9/25/2015: PROOF OF SERVICE

REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR, ETC.

10/9/2015: REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR, ETC.

STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

10/15/2015: STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

Minute Order -

12/10/2015: Minute Order -

OCWEN LOAN SERVICING, LP'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. 4, TO EXCLUDE DOCUMENTS, EVIDENCE, AND REFERENCES TO PLAINTIFF'S CLAIMS RELATED TO EMOTIONAL DISTRESS; ETC

2/10/2016: OCWEN LOAN SERVICING, LP'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. 4, TO EXCLUDE DOCUMENTS, EVIDENCE, AND REFERENCES TO PLAINTIFF'S CLAIMS RELATED TO EMOTIONAL DISTRESS; ETC

PLAINTIFF'S WITNESS LIST

2/16/2016: PLAINTIFF'S WITNESS LIST

PLAINTIFF'S EXHIBIT LIST

2/16/2016: PLAINTIFF'S EXHIBIT LIST

JUDGMENT IN FAVOR OF OCWEN LOAN SERVICING, LLC;

6/3/2016: JUDGMENT IN FAVOR OF OCWEN LOAN SERVICING, LLC;

169 More Documents Available

 

Docket Entries

  • 04/20/2021
  • Hearing04/20/2021 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/13/2021
  • Hearing04/13/2021 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/19/2021
  • Docketat 10:00 AM in Department 37; Jury Trial - Not Held - Continued - Stipulation

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  • 01/12/2021
  • Docketat 08:30 AM in Department 37; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 12/23/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by Court

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  • 12/10/2020
  • Docketat 08:30 AM in Department 37; Hearing on Ex Parte Application ( to Approve Stipulation to Continue Trial) - Held

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  • 12/10/2020
  • DocketNotice of Ruling; Filed by PHH Mortage Corporation, as Successor by Merger (Defendant)

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  • 12/10/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application to Approve Stipulation to Co...)); Filed by Clerk

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  • 12/09/2020
  • DocketEx Parte Application (to Approve Stipulation to Continue Trial); Filed by PHH Mortage Corporation, as Successor by Merger (Defendant)

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  • 12/07/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Summary Judgment - Held - Motion Denied

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338 More Docket Entries
  • 06/12/2014
  • DocketCase Management Statement; Filed by PHH Mortage Corporation, as Successor by Merger (Defendant)

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  • 04/18/2014
  • DocketGeneral Denial; Filed by PHH Mortage Corporation, as Successor by Merger (Defendant)

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  • 04/18/2014
  • DocketGENERAL DENIAL OF DEFENDANT OCWEN LOAN SERVICING, LLC TO PLAINTIFFS COMPLAINT

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  • 04/07/2014
  • DocketProof of Service (not Summons and Complaint); Filed by Maricela Vargas (Plaintiff)

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  • 04/07/2014
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 03/05/2014
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/05/2014
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/04/2014
  • DocketSUMMONS

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  • 03/04/2014
  • DocketCOMPLAINT AND DEMAND FOR JURY TRIAL

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  • 03/04/2014
  • DocketComplaint; Filed by Maricela Vargas (Plaintiff)

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Tentative Rulings

Case Number: BC538182    Hearing Date: December 07, 2020    Dept: 37

HEARING DATE: December 7, 2020

CASE NUMBER: BC538182

CASE NAME: Maricela Vargas v. Ocwen Loan Servicing, LLC, et al.

MOVING PARTY: Defendant, PHH Mortgage Corporation, successor by merger to Ocwen Loan Servicing, LLC

OPPOSING PARTY: Plaintiff, Maricela Vargas

TRIAL DATE: January 19, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Summary Judgment

OPPOSITION: November 12, 2020

REPLY: December 2, 2020

TENTATIVE: PHH’s motion is denied. Plaintiff is to give notice.

Background

This action arises in connection with a property located at 2737 Malabar Street, Los Angeles, California 90033. (the “Property”) Plaintiff, Maricela Vargas (“Plaintiff”) alleges that the Property was her primary residence and that she sought a “foreclosure prevention alternative” as defined by Civil Code section 2920.5, subdivision (b) from Defendant, Ocwen Loan Servicing, LLC (“Ocwen”). Plaintiff alleges that after she began the loan modification application process with Ocwen, Ocwen wrongfully put the Property up for foreclosure sale, sold the home, and notified her that she was to vacate. Thus, Plaintiff alleges that Ocwen engaged in “dual tracking;” processing Plaintiff’s home loan modification while placing the Property up for foreclosure sale.

Plaintiff’s Complaint alleges the following causes of action: (1) violation of the Homeowner’s Bill of Rights, (2) fraud, (3) negligent misrepresentation, (4) negligence.

On October 15, 2015, Ocwen’s motion for summary judgment came on for hearing. The Honorable Stephanie Bowick denied Ocwen’s motion for summary judgment. Specifically, Judge Bowick ruled that there was a triable issue as to whether Plaintiff submitted a complete loan modification application, whether Ocwen undertook review of Plaintiff’s application and whether Plaintiff submitted documentation demonstrating a material change in her financial circumstances. Judge Bowick also found triable issues of material fact as to the remaining causes of action.

On February 23, 2016 trial commenced in this action. On March 8, 2016, Ocwen’s motion for nonsuit was granted. The ruling on Ocwen’s motion for nonsuit was then appealed.

On June 18, 2019, the Court of Appeal issued its remittitur. The Court of Appeal reversed the ruling on Ocwen’s motion for nonsuit as to the first cause of action and the order granting Ocwen attorney fees. The remainder of the ruling on Ocwen’s motion for nonsuit was affirmed. Specifically, the Court of Appeal concluded that the trial court erred in finding that Plaintiff’s loan modification was not timely submitted and also erred in determining that Plaintiff’s evidence was “not sufficient for a jury to conclude that her application was “complete.”” (Remittitur, 29.) The Court of Appeal also concluded that there was sufficient evidence for the jury to find that “Vargas had met her burden to show she submitted sufficient documentation to Ocwen of her changed financial circumstances.” (Id. at 31-32.) The Court of Appeal ordered the matter remanded for a new trial on the Homeowner’s Bill of Rights (“HBOR”) cause of action.

On September 16, 2020, Defendant PHH Mortgage Corporation, as successor in interest by merger to Ocwen (“PHH”) filed the instant motion for summary judgment as the HBOR cause of action. On September 30, 2020, the court granted the parties’ stipulation to substitute PHH as successor by merger for Defendant Ocwen.

PHH’s motion for summary judgment now comes on for hearing. Plaintiff opposes the motion.

Request for Judicial Notice

PHH requests the court take judicial notice of the following in support of its motion for summary judgment:

1. A Deed of Trust recorded on June 21, 2007 in the Los Angeles County Recorder’s Office bearing Instrument Number 2071494218, Exhibit “1.”

2. An Assignment of Deed of Trust recorded on January 29, 2013 in the Los Angeles County Recorder’s Office bearing Instrument Number 20130145802, Exhibit “2.”

3. A Loan Modification Agreement recorded on February 28, 2011 in the Los Angeles County Recorder’s Office bearing Instrument Number 20110311148, Exhibit “3.”

4. A Notice of Default and Election to Sell Under Deed of Trust recorded on March 19, 2013 in the Los Angeles County Recorder’s Office bearing Instrument Number 20130411043, Exhibit “4.”

5. A Notice of Trustee’s Sale recorded on July 8, 2013 in the Los Angeles County Recorder’s Office bearing Instrument Number 20131000825, Exhibit No. “5.”

6. A Notice of Trustee’s Sale recorded on November 4, 2013 in the Los Angeles County Recorder’s Office bearing Instrument Number 20131567110, Exhibit “6.”

7. A Trustee’s Deed Upon Sale recorded on December 20, 2013 in the Los Angeles County Recorder’s Office bearing Instrument Number 20131791626, Exhibit “7.”

PHH’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code § 452, subd. (h).)

Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Factual Summary

The facts surrounding Plaintiff’s initial loan application and initial loan modification applications in 2010 and 2012 are not in dispute.

On or about June 12, 2007, Plaintiff executed a promissory note (“Note”) and a Deed of Trust (“DOT”) to secure a loan in the amount of $417,000.00 (“Loan”) from Saxon Mortgage, Inc. (“Saxon”), the original lender. (Separate Statement in Support of Motion (“DSS”), ¶ 1; Declaration of Derrick Raleigh (“Raleigh Decl.”), ¶¶ 4, 6, Ex. 1.) The DOT was subsequently recorded in the Los Angeles County Recorder’s Office, creating a first-priority lien against the Property. (DSS ¶ 2; Raleigh Decl., ¶ 6, Ex. 1; RJN, Ex. 1.) On October 20, 2011, an Assignment of DOT from Saxon to Deutsche Bank National Trust Company as Trustee for the Register Holders of Saxon Asset Securities Trust 2007-3 Mortgage Loan Backed Certificates, Series 2007-3 (“Deustche Bank”) was recorded. (DSS ¶ 3; RJN, Ex. 2; Declaration of Katherine Ortwerth (“Ortwerth”), ¶ 10.) At all relevant times Ocwen has serviced the Loan for Deutsche Bank. (DSS ¶ 4; Raleigh Decl. ¶ 5.)

On or about November 24, 2010, Plaintiff and her parents executed a Loan Modification Agreement to Saxon. (“2010 Modification”) (DSS ¶ 5; Raleigh Decl. ¶ 7, Ex. 2; Exhibits in Support of Motion, Ex. 3 (Plaintiff Depo), 34:19-35:13.) Plaintiff defaulted on her modified Loan. (DSS ¶ 7; Raleigh Decl., ¶ 8, Ex. 3; Exhibits in Support of Motion, Ex. 3 (Plaintiff Depo) at pp. 36:17-39:5.) According to Derrick Raleigh, a Senior Loan Analyst for Ocwen, Plaintiff defaulted on the modified Loan by failing to make her July 1, 2011 payment and, as a result, a Notice of Default and Election to Sell Under Deed of Trust was recorded on March 12, 2012. (Raleigh Decl. ¶¶ 1-2, 8; Ex. 3.) Plaintiff also testified that after March 9, 2012, she did not pay on the Loan. (Exhibits in Support of Motion, Ex. 3 at pp. 38:18-39:5.)

On or about January 14, 2012, Plaintiff submitted a first loan modification application to Ocwen. (“2012 Modification”) (DSS ¶ 8; Exhibits in Support of Motion, Ex. 3 (Plaintiff Depo) at pp. 79:17-81:6; Raleigh Decl., ¶ 9, Ex. 4.) Plaintiff included, as part of this application, a rental agreement she alleges she entered into with her tenant, as well as two rental receipts. (DSS ¶ 9; Raleigh Decl. ¶ 9, Ex. 4.) On April 17, 2012, Ocwen offered Plaintiff the requested loan modification and implemented it on June 1, 2012. (DSS ¶ 10; Raleigh Decl. ¶ 10, Ex.5; Exhibits in Support of Deposition, Ex. 3 (Plaintiff Depo) at pp. 82:21-84:8.) Plaintiff made three payments pursuant to this modification and subsequently defaulted. (DSS ¶ 11; Raleigh Decl. ¶¶ 10-11.)

It is undisputed that Plaintiff next submitted a second loan modification application to Ocwen on January 31, 2013. (DSS ¶ 14; Raleigh Decl. ¶¶ 18-19, Ex. 10.) Ocwen denied this application on February 7, 2013. (DSS ¶ 16; Raleigh Decl. ¶ 19.)

In response to the February 7, 2013 denial, Plaintiff contacted Ocwen on February 24, 2013 to inform Ocwen that her income had decreased because she had lost her self-employment income and subsequently submitted a hardship letter detailing these circumstances. (Raleigh Decl. ¶¶ 21-23, Ex. 12.) Thereafter, Ocwen again evaluated Plaintiff’s loan modification application and again denied Plaintiff’s application. (DSS ¶ 8; Raleigh Decl. ¶ 23.)

On March 19, 2013, Ocwen caused a Notice of Default to be recorded on the Property and on July 8, 2013, Ocwen caused a Notice of Trustee’s sale to be recorded because the default on the Loan had not been cured. (DSS ¶¶ 18-19; Raleigh Decl. ¶¶ 24, 28, Ex. 13, 14; Ortwerth Decl. ¶ 16.)

On July 15, 2013, Ocwen received a third loan modification application from Plaintiff. (DSS ¶ 20; Raleigh Decl. ¶ 29, Ex. 8, Ex. 15.) In this application, Plaintiff represented that her monthly income was $4,394, compromising of $700 in rental income and gross pay of $3,694. (DSS ¶ 21; Raleigh Decl. ¶ 29.) Ocwen reviewed Plaintiff’s application and determined that her actual income was $4,956.60, $562 higher than the amount she listed. (DSS ¶ 22; Raleigh Decl. ¶ 30.) Ocwen determined that Plaintiff was not eligible for a loan modification because her income was still too low. (DSS ¶ 23; Raleigh Decl. ¶ 30.)

PHH contends that on August 23, 2012, Ocwen determined that all loss mitigation options had been exhausted. (DSS ¶ 24; Raleigh Decl. ¶ 31.) Plaintiff disputes this and contends in opposition that Ocwen offered to consider Plaintiff for loss mitigation options and in fact did so. (Separate Statement in Support of Opposition, (“PSS”), ¶ 24; Exhibits in Support of Opposition, Exhibit 1 (Plaintiff Decl.), ¶¶14, 16, 25, 29, 36.) Specifically, Plaintiff attests in support of the opposition that on October 21, 2013, Defendant sent her a letter inviting her to apply for foreclosure alternatives. (Exhibit 1 in Support of Opposition, ¶ 14, Ex. 1.) This letter provides in pertinent part:

“A FORECLOSURE SALE HAS BEEN SCHEDULED ON

YOUR HOME

BUT IT MAY NOT BEE TOO LATE TO SAVE IT

Although Ocwen Loan Servicing, LLC has made several attempts to contact you regarding the serious situation concerning your home, your situation remains unresolved.”

Additionally, Plaintiff attests that she spoke to Geesun Rodrigues who was her “point of contact” with Ocwen on more than one occasion about applying for a modification because her income had increased. (Exhibits in Support of Opposition, Ex 1 (Plaintiff Decl.), ¶ 16.) According to Plaintiff, Mr. Rodrigues indicated that her loan modification application would be accepted and never indicated that the Property was in foreclosure or a foreclosure sale would take place while she was under review for a loan modification (Id. at ¶¶ 25, 28-29, 31.)

On September 3, 2013, Ocwen received a fourth loan modification application from Plaintiff. (DSS ¶ 25; Raleigh Decl. ¶¶ 31-32, Ex. 16.) Plaintiff listed her monthly income as $4,691.64 in this application. (DSS ¶ 26; Raleigh Decl. ¶ 32.) According to Raleigh, Plaintiff’s loan modification application represented a $264.96 increase in stated monthly income from the amount that Ocwen had determined to be insufficient on July 19, 2013. (Raleigh Decl. ¶ 32.) Thus, Ocwen reviewed Plaintiff’s submission on September 5, 2013 and determined that her income remained insufficient to qualify for a modification. (DSS ¶ 27; Raleigh Decl. ¶ 33.) Ocwen then reviewed Plaintiff’s submission on September 11, 2013 and again determined that Plaintiff’s income was insufficient to qualify for a modification. (DSS ¶ 28; Raleigh Decl. ¶ 35.) On September 20, 2013, Ocwen denied Plaintiff’s application in writing. (DSS ¶ 29; Raleigh Decl. ¶ 36, Ex. 17.)

After this denial of Plaintiff’s fifth application, Ocwen caused a second Notice of Trustee’s Sale to be recorded, listing the new sale date as December 3, 2013. (DSS ¶ 30; Raleigh Decl., ¶ 39, Ex. 19.)

On November 21, 2013, Plaintiff faxed Ocwen a fifth loan modification application. (DSS ¶¶ 31-32; Raleigh Decl. ¶42, Ex. 20.) The fifth loan modification application included an application form, a rental agreement, a 2012 income tax return, Ocwen’s loan modification application form, and a letter from California Hospital Medical Center allegedly verifying Plaintiff’s hours. (DSS ¶ 32; Ex. 20.) Plaintiff indicated on this application that her income compromised of $4,155.68 in gross pay and $700 in rental income. (Id.)

On November 26, 2013, Ocwen reviewed Plaintiff’s fifth loan modification application and denied the application. (DSS ¶¶ 35-36, Raleigh Decl. ¶¶ 45-46, Ex. 22.) PHH contends that Plaintiff’s application was denied because it was submitted within 7 business days of the December 3, 2013 foreclosure sale date. (DSS ¶ 36; Raleigh Decl. ¶ 45.) Plaintiff disputes this fact “as the application was still being reviewed at the time of foreclosure.” (PSS ¶ 36.) PHH contends that on November 27, 2013, it sent Plaintiff a letter indicating this denial. (Raleigh Decl., Ex. 22.) This letter provided as follows:

“Dear Customer:

We carefully reviewed your request, and assessed your eligibility for modification. However, the results prevent us from being able to offer a loan modification.

Results of our analysis:

We are unable to offer you a modification because:

As of the date of this letter your loan has a confirmed sale date within 7 Business days.”

Plaintiff points to her own declaration as evidence that the application was still being reviewed at the time of foreclosure. (PSS ¶ 37; Exhibits in Support of Opposition, Ex. 1 (Plaintiff Decl.) ¶¶ 16, 19, 20, 28, 29, 30, 36.) Specifically, Plaintiff attests Plaintiff attests that she received a letter on December 23, 2013 acknowledging her loan modification application and which did not mention anything about a foreclosure sale. (Exhibits in Support of Opposition, Ex 1 (Plaintiff Decl.), ¶ 36, Ex. 12.)

It is undisputed that on December 3, 2013, the Property sold at foreclosure sale to Mid-Cal Realty Services, Inc. (DSS ¶ 38; Raleigh Decl. ¶ 48, Ex. 23.)

On December 5, 2013, PHH contends that Ocwen’s representative contacted Plaintiff and informed her that for her application to be reviewed, she would have to submit a “clarification letter” with proof of rental income. (DSS ¶ 39; Raleigh Decl. ¶ 50.) Specifically, Raleigh attests that this request was so that the Ocwen representative could “try to re-open her file for a modification.” (Id.) Plaintiff disputes this and contends that although she had a conversation with Mr. Rodrigues on December 5, 2013, he indicated that there was “no sale date on the account” and that he would “send out the request for the file to be mod.” (PSS ¶ 39; Exhibits in Support of Motion, Ex. 8 at p. 318.) Pursuant to this request, Plaintiff faxed Ocwen two letters on December 7, 2013 explaining her rental income. (PSS ¶ 40; Raleigh Decl. ¶ 51.)

Ocwen acknowledged receipt of this submission in writing on December 23, 2013. (DSS ¶ 41; Raleigh Decl. ¶ 52, Ex. 26.) Ocwen contends that it deemed the application complete following this submission. (DSS ¶ 42; Raleigh Decl. ¶ 53.) However, Plaintiff disputes this and contends that this application was complete on November 21, 2013. (PSS ¶ 42; Exhibits in Support of Opposition, Ex. 1 (Plaintiff Decl.), ¶ 19.)

On December 19 and 20, 2013, Ocwen informed Plaintiff that, due to the foreclosure sale, her loan could not be modified. (DSS ¶ 43; Raleigh Decl. ¶ 55, Ex. 27.) On December 29, 2013, the Trustee’s Deed Upon Sale was recorded. (DSS ¶ 44; RJN, Ex. 7.)

Finally, PHH contends that Ocwen could not and would not have offered Plaintiff a modification based on her November and December 2013 submissions because her income remained too low to qualify. (DSS ¶ 46; Raleigh Decl. ¶ 57.) Specifically, Raleigh attests that even at a 2% interest rate, the monthly payment would have to be increased for the loan to be modified, which would have exceeded Plaintiff’s affordability. (Id.) Plaintiff disputes and contends that there was a material change in finances which would have allowed her to afford a modified payment. (PSS ¶ 46; Exhibits in Support of Opposition, Ex. 1 (Plaintiff Decl.), ¶ 15.) Plaintiff attests that there was a material change because she was “earning approximately $300 to $400 more per month due to an increase in hours” and, further, had her property taxes reassessed such that the value of the Property was lower as well as the property taxes. (Id.) Based on these facts, Plaintiff attests that she would have been able to afford a “modified mortgage payment.” (Id.)

  1. Analysis

     

  1. Issue Preclusion

As a preliminary note, Plaintiff argues that PHH’s entire MSJ is improper because it concerns the same issues already decided on Ocwen’s MSJ and by the Court of Appeal in reviewing the grant of nonsuit in favor of Ocwen. (Opposition, 8-11.) Specifically, Plaintiff argues that PHH’s motion violates Code of Civil Procedure section 437c, subdivision (f)(2) or, alternatively, the “law of the case” doctrine.

Pursuant to Code of Civil Procedure, section 437c, subdivision (f)(2): “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Additionally, under the doctrine of "law of the case", "the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case."  (Nally v. Grace Community Church) (1988) 47 Cal.3d 278, 301. (Nally)) The rule is not invoked where the sufficiency of the evidence necessary to sustain the judgment depends on the probative value or effect of the evidence itself, and the evidence in the second trial is changed.  (Id.)

First, with respect to the Code of Civil Procedure section 437c argument, Plaintiff argues that PHH’s motion is improper because it attempts to “cosmetically repackage” the same issues already decided by Judge Bowick in the Ocwen MSJ. (Opposition, 8-10.) Plaintiff relies on Schachter v. Citigroup, Inc., (2005) 126 Cal.App.4th 726 (Schachter) and Bagley v. TRW, Inc., (1999) 73 Cal.App.4th 1092 (Bagley) to demonstrate that PHH’s MSJ is merely an improper attempt to relitigate issues decided on the Ocwen MSJ.

Plaintiff’s reliance on Schacter is misplaced. In Schacter, Plaintiff brought a motion for summary judgment, which was denied, then brought a renewed motion for summary judgment pursuant to Code of Civil Procedure section 1008. (Schacter, supra, 126 Cal.App.4th at 922-924.) Thus, Schacter is procedurally different from this action and its ruling is inapplicable. Similarly, Plaintiff’s reliance on Bagley is misplaced as it is also procedurally different from the instant action. In Bagley, Defendant field a first motion for summary judgment or, in the alternative, summary adjudication as to 130 different “issues” within the seven causes of action complaint. (Bagley, supra, 73 Cal.App.4th at 1094-1095.) The first motion was granted in part and denied in part, and then Defendant filed a second motion for summary judgment, or, in the alternative, summary adjudication, this time as to each of Plaintiff’s seven causes of action. (Id. at 1096.) The Court of Appeal found that Defendant’s second motion should be denied under Code of Civil Procedure, section 437c(f)(2), as there was not a material fact in the second motion for summary judgment which was not included in the first motion. (Id. at 1097.)

Defendant cites a number of on-binding federal cases for new law, but it does not clearly show how the “new law” applies or affects the prior motion. So too with the showing of “new facts.” However, the court is willing to give the benefit of the doubt given the intervening appellate decision in this case and finds that the instant motion is not barred by Code of Civil Procedure section 437c, subdivision (f)(2).

Second, with respect to the “law of the case” argument, Plaintiff primarily relies on Nally. However, Plaintiff misapplies the standard articulated in Nally. The “law of case” does not present a blanket prohibition for PHH as to all issues ever considered by the Court of Appeal in its opinion. As discussed above, Nally explicitly states that the “law of the case” is not invoked “where the sufficiency of the evidence necessary to sustain the judgment depends on the probative value or effect of the evidence itself, and the evidence in the second trial is changed.” Here, the Court of Appeal’s remittitur only indicated that the trial court erred in its ruling on Ocwen’s motion for nonsuit, and that there was to be a new trial on the HBOR cause of action. Thus, the Court of Appeal’s remittitur is not a “rule of law necessary to the decision of the case,” as the Court of Appeal has not made any findings on liability.

For these reasons, the court finds that the instant motion is also not barred by the “law of the case” doctrine. The court will now consider the MSJ on its merits.

  1. First Cause of Action: Violation of HBOR

Civil Code, section 2923.6, subdivision (c) in effect at the time provides that “[i]f a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.”  (Civ. Code, § 2923.6, subd. (c).) Additionally, “ a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs: (3) the borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan modification.” (Civ. Code, § 2923.6, subd. (c)(3).)

Civil Code, section 2923.6, subdivision (g) provides that “a mortgage servicer shall not be obligated to evaluate applications from borrowers who have 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, subd. (g).)   

First, PHH contends that it was not required to comply with the requirements of Civil Code section 2923.6 because Plaintiff previously defaulted on her 2012 Modification, as defined in Civil Code section 2923.6, subdivision (c)(3). Plaintiff does not dispute that she defaulted on the 2012 Modification, her first loan modification application to Ocwen. Plaintiff’s opposition also does not directly address this argument.

The court agrees with PHH that Civil Code section 2923.6, subdivision (c)(3) applies. Plaintiff accepted and defaulted on the 2012 Modification, her first loan modification application from Ocwen. Thus, Ocwen was not prohibited from recording a Notice of Default or conducting a foreclosure sale as a general matter. However, PHH’s submitted evidence does not demonstrate that no triable issues of material fact exist with regard to Plaintiff HBOR cause of action. PHH cites only to unpublished case law in support of this argument, which the court does not take to be binding authority.

Second, PHH contends that even if Civil Code section 2923.6, subdivision (c)(3) does not bar Plaintiff’s action, Ocwen was still not required to review her fifth loan modification because she cannot demonstrate a “material change in her financial situation” as defined in Civil Code section 2923.6, subdivision (g). (Motion, 20-22.) PHH contends that given Ocwen had already determined that Plaintiff’s income as of July 19, 2013 was insufficient, the change in Plaintiff’s income as of the fifth loan modification application would not have affected Ocwen’s decision making and was therefore not material.

In opposition, Plaintiff contends that she had experienced a material change in her financial circumstances because, as discussed above, she was making $300 to $400 more per month and, further, because her property taxes had been reassessed and determined to be lower. (Opposition, 13-14.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that a triable issue of material fact exists with regard to whether Plaintiff experienced a material change to her financial circumstances. It is undisputed that “material” change has not been defined in case law for purposes of Code of Civil Procedure section 2923.6, subdivision (g). PHH contends that Plaintiff’s financial circumstances did not materially change because Plaintiff’s income was essentially the same as her prior loan modification application, which was denied. However, Plaintiff has submitted admissible evidence in opposition which demonstrates that her income had increased and that her property taxes had decreased, although by an unspecified amount. This constitutes a triable issue as to whether the change in Plaintiff’s financial circumstances was “material” for purposes of Code of Civil Procedure section 2923.6, and a basis upon which to deny PHH’s motion.

Third, PHH contends that Ocwen did not engage in dual tracking because Plaintiff’s fifth loan modification application was not complete at least 7 business before the December 3, 2013 foreclosure sale and, as such, the foreclosure sale was not done in violation of the HBOR. (Motion, 23-25.) In opposition, Plaintiff contends that the application was complete as of November 21, 2013. (Opposition, 14-16.) Plaintiff points to Civil Code section 2924.10, subdivision (a) in support of her argument that the fifth loan modification application was complete, as Plaintiff argues that if the application was incomplete, Ocwen had a duty to notify her in writing.

The Court of Appeal addressed this issue: “However, Vargas testified that although Rodrigues asked for two additional letters documenting the rental income, he told her that it ‘looks like we got all the papers we need for the modification.’ The trial court was required to accept Vargas’s testimony as true and disregard the conflicting evidence in deciding whether to grant the motion for nonsuit. Crediting the testimony from Vargas and viewing the facts in the light most favorable to her, we conclude that the trial court erred in determining Vargas’s evidence was not sufficient for a jury to conclude that her application was ‘complete.’ ” (Opinion at 28-29.)

Thus, based on the definition in this section and viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that a triable issue of material fact exists with regard to whether Plaintiff’s fifth loan modification application was complete prior to the December 3, 2013 foreclosure sale. PHH contends that the application was not complete because Ocwen only determined that it was complete after Plaintiff submitted additional letters on December 7, 2013 as requested. The opinion by the Court of Appeal is controlling. This constitutes a triable issue of material fact, which is a basis to deny PHH’s motion.

For these reasons, PHH’s motion is denied.

Conclusion

PHH’s motion is denied. PHH is to give notice.

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