MUIBI ADE SALAMI VS. CALIBER HOME LOANS, INC., ET AL.

Tentative Rulings

Case Number: ****8786    Hearing Date: March 03, 2020    Dept: A

# 7. Muibi Ade Salami v. Caliber Home Loans, Inc., et al.

Case No.: ****8786

Matter on calendar for: Motion for Summary Judgment

Tentative ruling:

1. Background

   Plaintiff Muibi Ade Salami alleges Defendants Caliber Home Loans, Inc., and Summit Management Company, LLC, breached the terms of Plaintiff’s mortgage agreement when they changed the monthly payment date from the 26^th to the 1^st of the month. Plaintiff alleges to have attempted to fulfill his monthly obligations but Defendants rejected his payments. Plaintiff executed the loan agreement with Household Finance Corporation (“HAC”) on January 26, 2006. Defendant Caliber began servicing the loan on August 1, 2016.

   The Third Amended Complaint (“TAC”) alleges the following causes of action:

1. Breach of Contact;

2. Breach of the Covenant of Good Faith and Fair Dealing

3. Violation of Statute

The third cause of action was dismissed by the Court, without leave to amend, on May 10, 2018. Defendants now moves for summary judgment or adjudication on the remaining two causes of action. The motion is opposed.

For the reasons set forth below, the Court grants the motion.

1. Standard

   A “motion for summary judgment shall 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.” (C.C.P., ; 437c(c).) "A moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact. [Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 178–179.]" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., ; 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., ; 437c(f)(1).)

2. Analysis

   1. Objections to Evidence

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (C.C.P., ; 437c(q).) Plaintiff’s objections to the Declaration of Ryan Bennett are overruled; the Court finds his attached records qualify as business records (Evid. Code, ; 1271(d).)

1. Breach of Contract

A breach of contract cause of action has the following elements: (1) existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach (or anticipatory breach), and (4) resulting damage. (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391 fn. 6.)

Defendants argue: (1) Caliber did not breach the loan agreement because the stated date (26^th) was listed as an estimated date, (2) late fees were properly applied, (3) Plaintiff has not performed his obligations under the agreement, and (4) Plaintiff has not suffered damages.

1. Defendants’ Initial Burden

Defendants proffer the following evidence:

• The loan agreement (Decl. Bennet, Exh. 1.)

• The recorded (1/31/06) Deed of Trust (Decl. Bennet, Exh. 4.)

• The February 2, 2006 letter from HFC to Plaintiff which informed Plaintiff of his new account number and that his payment due date was adjusted based on the date of his loan disbursement to March 1, 2006. (Decl. Bennet, Exh. 5.)

• 38 letters from HFC, from March 9, 2006 to December 9, 2009, informing Plaintiff that his loan payments were past due. (Decl. Bennet, Exhs. 6–44.)

• The declaration of Ryan Bennett, Defendant Caliber’s Default Servicing Officer in charge of Plaintiff’s account, who recounts the payments made by Plaintiff from 2006–2010 (¶¶ 49–53), and states that the loan is currently due for July 2011. (Decl. Bennet, ¶ 66.) As of February 2011, Plaintiff had accrued $7,998.46 in late charges. (Id. at ¶ 65.)

• Plaintiff’s deposition testimony in which, when asked what Plaintiff’s definition of the word estimate is, he responded “It’s an approximate value.” (Decl. Feng, Exh. 10, p. 69.)

  The loan agreement uses the symbol (“e”) to denote estimates. The Truth-in-Lending disclosures are shown in table format with the finance charge, total of payments, and when payments are due all accompanied by an (“e”). Below these items are the words ““e” means an estimate.” (Exh. 1, p. 1.) Plaintiff’s deposition testimony reveals that he can read, comprehend, and understand what “estimate” means. The February 2, 2006 letter shows that Plaintiff was informed of the final payment date, while the Declaration of Ryan Bennet establishes that Plaintiff has failed to pay the accrued late fees. This evidence shows that Defendants did not breach the agreement by changing the payment date and that Plaintiff has failed to perform his obligations under the lease by failing to pay the required late charges.

  Defendants have met their prima facie burden of showing no triable issue of material fact.

1. Plaintiff’s Burden

Plaintiff provides his declaration which he states:

• Plaintiff made arrangements (automatic debit to his bank account) to have his loan paid on the 26^th of each month and that he was not informed of the change in his payment date until July 2008, when he learned there was a late charge on his account. (Decl. Salami, ¶¶ 4–8, 17.)

• He states that Defendants’ exhibits 5–7 are fabricated documents and that he did not consent to any change in payment date. Because of the unpaid late charges, Plaintiff was prevented from making online payments (subsequent HFC’s internal “cease debit” policy for unpaid accounts), requiring him to pay telephonically until HFC eventually stopped accepting that form of payment as well. (Decl. Salami, ¶ 24–25.)

• Mailed checks were denied. (Ibid.) Defendant Caliber has refused to accept any payment since it took over the loan. (Decl. Salami, ¶ 28.)

• Plaintiff also attaches a copy of the following:

  • the loan agreement (Opp., Exh. 1.),

  • An August 27, 2008 letter of protest to his local HFC branch (Opp., Exh. 2.),

  • Payments to Defendant Caliber related to a second Mortgage (Opp., Exh. 3.),

  • Plaintiff filed a complaint with the California Department of Corporations about HFC’s cease debit order, HFC’s response is attached as Opp., Exh. 4.

  • A letter from to Plaintiff’s bank wherein Plaintiff asked if there was a cease debit order on his account, and a letter in return stating that Plaintiff has not set a cease debit order on his own account. (Opp., Exhs. 5–6.)

  • Copies of Plaintiff’s online attempts to make payments. (Opp. Exh. 7.)

  • Confirmation letters for Plaintiff’s telephonic payments. (Opp. Exh. 8.)

  • Plaintiff’s returned checks. (Opp. Exh. 9.)

  • Copies of mortgage statements in which Defendant Caliber asserted Plaintiff must pay late fees. (Opp. Exh. 10.)

    “The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must be given effect to the ‘mutual’ intention of the parties.” (ASP Properties Group v. Fard, Inc. (2005) 133 Cal. App. 4th 1257, 1269.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .” (Civ. Code ; 1639.) When the meaning of the contract is disputed, “[t]he interpretation . . . involves a two-step process: First the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the language is ‘reasonably susceptible’ to the interpretation urged by [a] party. [Citation.] [Citation.]” (Wolf v. Superior Court (2004) 114 Cal. App. 4th 1343, 1351.) If the language is reasonably susceptible to the interpretation, the extrinsic evidence is admitted to actually interpret the contract. (Ibid.) The determination as to whether an ambiguity exists is a question of law. (Ibid.) If no competent parol evidence is admitted or the competent parol evidence is not in conflict, resolving the ambiguity is also a question of law. (Id. at 1351; Winet v. Price (1992) 4 Cal. App. 4th 1159,1165.)) “However, where the parol evidence is in conflict, the trial court’s resolution of that conflict is a question of fact . . . .” (Wolf, supra, 114 Cal. App. 4th at 1351.)

    Plaintiff interprets the contract to state his due date is the 26^th of each month, which it does, but it also states that this date was an estimate. Plaintiff’s deposition testimony shows the parties have similar understandings as to the meaning of the word “estimate.” (Decl. Feng, Exh. 10, p. 69.) Plaintiff argues that Defendant did not have the right to unilaterally change the due date, but this argument fails because Plaintiff does not provide evidence that he timely paid his mortgage payment on February 26, 2006, when his first payment was due. The change in date extended his due date by three days, but it is undisputed that Plaintiff did not pay until March 17, 2006. Every subsequent payment, per the terms of the loan agreement, was late, regardless of whether the due date was February 26, 2006, or March 1, 2006.

    Accordingly, Plaintiff’s opposition fails to raise a triable issue of material fact as he cannot prove performance of his obligations under the loan. The opposition does not oppose Defendants’ motion to the second cause of action for breach of the covenant of good faith. The Court notes that the cause of action, as alleged by Plaintiff, is duplicative of Plaintiff’s breach of contract claim. Summary judgment is therefore proper.

1. Ruling

   The motion for summary judgment is granted.

   Next dates:

   Notice: