Mountjoy v. Seterus, Inc.

Full title: CALVIN MOUNTJOY, Plaintiff, v. SETERUS, INC., Defendant.

Court: United States District Court, Eastern District of California

Date published: Jun 16, 2023

2:15-cv-02204-DJC-DB (E.D. Cal. Jun. 16, 2023)

Opinion

2:15-cv-02204-DJC-DB

06-16-2023

CALVIN MOUNTJOY, Plaintiff, v. SETERUS, INC., Defendant.

HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE

Plaintiff Calvin Mountjoy brought this case alleging that his home was wrongfully foreclosed following an unlawful nonjudicial foreclosure process. In this diversity action, Plaintiff alleges that Defendant Seterus, Incorporated failed to follow the California Homeowner Bill of Rights in considering Plaintiff's application for a loan modification, and that the foreclosure of his home violated California law.

Defendant moves this Court for summary judgment on Calvin Mountjoy's remaining claims related to this allegedly unlawful foreclosure. (See Def.'s Mem. of P. and A. in Supp. of Def.'s Mot. for Summ. J. (ECF No. 97-4) (“Def.'s MSJ”).) Because there remains at least one disputed issue of material fact regarding Plaintiff's claim under the California Homeowner Bill of Rights (“HBOR”) and separately for wrongful foreclosure and intentional infliction of emotional distress, the Court DENIES summary judgment on Plaintiff's first claim under the HBOR; Plaintiff's seventh claim under California's unfair competition law (“UCL”), California Business and Professions Code section 17200; Plaintiff's eleventh claim for intentional infliction of emotional distress; and Plaintiff's thirteenth claim for wrongful foreclosure. However, the Court finds that Defendant is entitled to judgment as a matter of law on the remaining claims for negligence (sixth claim), and negligent infliction of emotional distress (twelfth claim).

BACKGROUND

This Court has, on several occasions, summarized the factual background of this case which need not be repeated here. (See ECF No. 44 (order granting and denying in part motion to dismiss against Plaintiff's second amended complaint); ECF No. 67 (order granting and denying in part motion to dismiss against Plaintiff's third amended complaint).) Relevant for purposes of this Motion, this suit revolves around real property located at 8647 Adamstown Way, Elk Grove, California (“the Property”). (See Pl.'s Third Am. Compl. ¶ 5 (ECF No. 49) ("TAC”).) After Bank of America foreclosed on the Property in 2011, Plaintiff sued, resulting in a settlement that required Bank of America to review Plaintiff's application for a loan modification, among other things. (TAC ¶ 32; TAC Ex. C (ECF No. 49-3) (providing a copy of the 1 /28/2014 written stipulation for settlement of Plaintiff's first suit against Bank of America (“Mountjoy I')).)

In July 2014, Plaintiff submitted a loan modification application to Bank of America that was denied. (See Pl.'s Separate Statement of Undisputed Facts Nos. 3-4 (ECF No. 103-1) (“Pl.'s SOF”) (undisputed); Decl. of Michael Stoltzman (“Stoltzman Decl.”) Ex. 4, Pl.'s Dep. Tr. at 73:16-20 (ECF No. 97-3 at 64-161) (“Pl.'s Dep. Tr.”).) In November 2014, Plaintiff submitted another loan modification application. (See Pl.'s SOF No. 5 (undisputed).) On February 17, 2015, Plaintiff's November 2014 application was reviewed, and Plaintiff was determined not “eligible” for a loan modification. (See Pl.'s SOF No. 6 (undisputed); TAC ¶ 54; TAC Ex. J (ECF No. 49-9) (“2/17/2015 Bank of America Ltr. re Pl.'s Loan Appl.”) (providing a copy of the 2/17/2015 letter from Bank of America to Plaintiff).) Bank of America did determine, however, that Plaintiff was eligible for a short sale. (See 2/17/2015 Bank of America Ltr. re Pl.'s Loan Appl.)

Meanwhile, Bank of America began foreclosure proceedings, with the Trustee, The Wolf Firm, recording a Notice of Trustee's Sale explaining that the Property would be subject to a foreclosure sale. (See TAC ¶ 28; TAC Ex. G (ECF No. 49-6) (providing a copy of the 9/26/2014 Notice of Trustee's Sale); Def's Req. for Jud. Notice (“RJN”) (ECF No. 98) Ex. 14 at 36-44 (providing the same).) On April 8, 2015, Bank of America conveyed to Federal National Mortgage Association (“Fannie Mae”) all beneficial interest under the Deed of Trust, copying Defendant as responsible for receiving payments. (See TAC ¶ 59; TAC Ex. L (ECF No. 49-11) (providing a copy of the 4/8/2015 Assignment of Deed of Trust); Def.'s RJN Ex. 14 at 56 (providing the same).) As a result, Defendant became the mortgage servicer for Plaintiff's loan. (See Pl.'s SOF No. 45 (undisputed).) Defendant notified Plaintiff of the change by mail around mid-April. (See TAC ¶ 99; Stoltzman Decl. Ex. 2, Pl.'s Resp. to Def.'s Special Interrog. No. 6 (ECF No. 97-3 at 11-34) (“Pl.'s Resp. to Def.'s Special Interrog.”).) On May 6, 2015, The Wolf Firm posted another Notice of Trustee's Sale, stating that the foreclosure sale would be on June 15, 2015. (See TAC ¶ 62; TAC Ex. M (ECF No. 4912) (providing a copy of the 5/6/2015 Notice of Trustee's Sale); Def.'s RJN Ex. 14 at 57 (providing the same).)

According to Plaintiff's complaint, corroborated by papers submitted by Defendant into the record, Plaintiff's counsel communicated with Defendant before the foreclosure sale in June 2015. (See TAC ¶ 61; Pl.'s Dep. Tr.at 101:11-24; Pl.'s Resp. to Def.'s Special Interrog. Nos. 1, 7, 12-13, 19, 21, 23, 25.) According to Plaintiff's Responses to Defendant's Special Interrogatories, “[u]pon notice of transfer of the loan to Seterus[,] [Plaintiff's] counsel contacted Seterus and told them the same thing that she had been telling [Bank of Americans counsel. That they had no legal right to charge Plaintiff over 100k in default after [Plaintiff] settled [Mountjoy I].” (Pl.'s Resp. to Def.'s Special Interrog. No. 7.) “Every day since the loan was transferred to Seterus[,] [Plaintiff] begged and [his] attorney begged in house counsel to resolve” Plaintiff's issues. (Pl.'s Resp. to Def.'s Special Interrog. No. 25.) Later, Plaintiff's counsel worked with Plaintiff to compile and send a “complete” loan modification application to Defendant, although whether the application was in fact complete is disputed. (See Pl.'s Decl. ¶¶ 15-16, 39-40; Pl.'s Dep. Tr. at 102:3-23; Pl.'s Resp. to Def.'s Special Interrog. Nos. 1, 25; see also TAC ¶ 107; Pl.'s SOF Nos. 9-11 (disputed).)

Plaintiff's counsel sent Defendant a loan modification application by fax on June 12, 2015. (See Pl.'s SOF No. 9 (disputing whether it was complete and whether it was sent three days before the foreclosure sale); Pl.'s Opp'n to Def.'s MSJ (“Pl.'s Opp'n”) Ex. 1 (ECF No. 103-2) at 2 (“Plaintiff's June 2015 Application”) (providing a copy of the cover sheet indicating that the application was faxed on 6/12/201 5 around 3:52 PM); id. at 13-14 (attached forms contained in loan modification application showing that forms were signed on 6/12/2015); Def.'s RJN Ex. 19 ¶¶ 4, 6-7 (“2022 Harrison Decl.”); ECF No. 85-2 (providing the same); see also TAC ¶ 107.) Plaintiff and Defendant dispute, however, two issues crucial to Plaintiff's first claim under California's HBOR:

1. Was the June 12, 2015 application complete? (See Pl.'s SOF Nos. 9-11. Compare Def.'s MSJ at 6; Def.'s Reply to Pl.'s Opp'n to Def.'s MSJ at 4 (ECF No. 105) (“Def.'s Reply”); Janati Decl. ¶¶ 18-19 with Pl.'s Decl. ¶¶ 16-18, 39-40 (ECF No. 103-4); 2022 Harrison Decl. Ex. 4 (providing a copy of the fax receipts from when Plaintiff's counsel tried submitting Plaintiff's application); see also ECF No. 85-2 at 20-21 (providing the same)); and

2. Was the June 12, 2015 application timely submitted? (See Pl.'s SOF Nos. 9, 12. Compare Def.'s MSJ at 5; Def.'s Reply at 4; Janati Decl. ¶¶ 1 8, 20 with Pl.'s Decl. ¶ 38).

Aside from the disputes regarding the June 12, 2015 application, Plaintiff and Defendant also dispute the total underlying debt outstanding on Plaintiff's loan. (See Pl.'s SOF Nos. 13, 20-23, 33-35, 39.) Though ultimately not relevant to the disposition of this Motion, at the heart of this dispute is whether Plaintiff was erroneously charged and therefore whether his loan required an accounting to accurately determine the total outstanding debt. (Compare Pl.'s Opp'n at 4 with Def.'s MSJ at 1,6-11; Def.'s Reply at 4-7.)

Prior to the June 2015 application and foreclosure sale, on April 2, 2015, Plaintiff filed another lawsuit against Bank of America in Sacramento County Superior Court (“Mountjoy II). (See ECF No. 1-1.) Plaintiff brought several claims based on fraud and negligence as in Mountjoy I, but Plaintiff added a claim under the California HBOR. (Compare Def.'s RJN Ex. 15 (providing a copy of the verified complaint in Mountjoy I) with ECF No. 1-1 ¶¶ 39-65.) Bank of America removed the case to federal court on October 22, 2015. (ECF No. 1.) Ultimately, Plaintiff filed his third amended complaint on May 8, 2018, after which he settled his claims against Bank of America and Fannie Mae on July 5, 2018 for $325,000 and voluntarily dismissed them from this action. (See Stoltzman Decl. Ex. A at 2, 9; Notice of Voluntary Dismissal (ECF No. 63).)

With only Defendant remaining, discovery ensued between Plaintiff and Defendant (“the Parties”). On June 17, 2022, Defendant brought the present Motion before the Court. (See Def.'s MSJ; also Def.'s RJN.) The matter is fully briefed and was submitted without oral argument. (See Def.'s MSJ; Pl.'s Opp'n; Def.'s Reply; see also ECF Nos. 99, 111.)

DISCUSSION I. Request for Judicial Notice

A. Standard

Courts may take judicial notice of an adjudicative fact that is "not subject to reasonable dispute." Fed.R.Evid. 201(b); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 994 (9th Cir. 2018) ("clarify[ing] when it is proper to take judicial notice of facts in documents, or to incorporate by reference documents in a complaint, and when it is not[]"). A fact is "not subject to reasonable dispute" if it "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). A court may therefore take judicial notice of matters of public record, but the court may not take judicial notice of disputed facts contained in those public records. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (finding that financial reports submitted by Ernst and Young were not judicially noticeable because Ernst and Young's compliance with the Higher Education Act was an "open question[] requiring further factual development[]"). For example, courts regularly take judicial notice of geography, geographic facts, and official acts. See Cruz v. Specialized Loan Servicing, LLC, No. SACV 22-01610-CJC-JDEx, 2022 WL 18228277, at *3 (C.D. Cal. Oct. 14, 2022) (collecting cases).

B. Analysis

1. Judicially Noticed Exhibits

Both Plaintiff and Defendant filed requests for judicial notice of various court orders, documents, and property records. (See generally Pl.'s RJN (ECF No. 103-5); Def.'s RJN.) As public court or property records, the following exhibits are judicially noticed:

• From Plaintiff's Request, the following exhibits are judicially noticed to the extent stated in each parenthetical:

o Pl.'s RJN Ex. 1(ECF No. 103-6 at 1-7) (the copy of the 6/8/2021 ex parte scheduling order);

o Pl.'s RJN Ex. 3 (ECF No. 103-6 at 21-27) (the copy of the 1/2/2014 Mountjoy I Minute Order on Bank of America's motion for summary judgment);

o Pl.'s RJN Ex. 4 (ECF No. 103-6 at 28-38) (the copy of Fannie Mae's verified complaint for unlawful detainer and Plaintiff's answer, and Fannie Mae's motion for summary judgment in its unlawful detainer suit); and

o Pl.'s RJN Ex. 5 (ECF No. 103-6 at 57-63) (the copy of Bank of America's 4/4/2012 request and proposed order demanding rent and the related court order on the matter).

• From Defendant's Request, the following exhibits are judicially noticed:

o Def.'s RJN Ex. 1 (the copy of the 9/1/2004 Deed of Trust);

o Def.'s RJN Ex. 2 (the copy of the 5/4/2009 Notice of Default);

o Def.'s RJN Ex. 5 (the copy of the 5/31/2012 Notice of Rescission);

o Def.'s RJN Ex. 8 (the copy of the 4/8/2015 Assignment of Deed of Trust);

o Def.'s RJN Ex. 9 (the copy of the 5/5/2015 Notice of Trustee's Sale);

o Def.'s RJN Ex. 10 (the copy of the 6/26/2015 Trustee's Deed upon Sale);

o Def.'s RJN Ex. 13 (the copy of the 4/8/2020 Order regarding Defendant's Motion to Dismiss);

o Def.'s RJN Ex. 14 (the copy of the chain of title for the Property from 1/25/2016 and before);

o Def.'s RJN Ex. 15 (the copy of Plaintiff's 1/9/2012 Complaint in Sacramento Superior County Court); and

o Def.'s RJN Ex. 18 (the copy of Plaintiff's 4/28/2014 Request for Dismissal).

2. Documents Not Judicially Noticed

Both Plaintiff and Defendant seek material that is inappropriate for judicial notice. Courts are not to take judicial notice of facts that are subject to reasonable dispute because they cannot be accurately and readily determined from reasonably accurate sources. See Fed.R.Evid. 201(b). Plaintiff requests that the Court take judicial notice of a typed 2014 settlement agreement from Mountjoy I. (See Pl.'s RJN Ex. 2 (ECF No. 103-6 at 8-20).) As a private document whose accuracy cannot be determined, judicial notice of the written settlement agreement would be improper. Cf Wheeler v. Premiere Credit of N. Am., 80 F.Supp.3d 1108, 1112 (S.D. Cal. 2015) (taking judicial notice of a federal appellate opinion). Therefore, the Court rejects Plaintiff's request to take judicial notice of the typed Mountjoy I settlement agreement. (See Pl.'s RJN Ex. 2.)

Plaintiff additionally seeks judicial notice of email communications between Plaintiff's counsel and The Wolf Firm on August 31 and September 1, 2016 regarding Plaintiff's potential lockout and eviction from the Property. (See Pl.'s RJN Ex. 2.) However, as private communications between parties, the communications within Plaintiff's Exhibit 2 cannot be easily verified and are not “generally known” within this Court's “territorial jurisdiction.” Cruz, 2022 WL 18228277, at *3. Moreover, the contents of those communications go to a dispute in this case regarding any damages Plaintiff might have incurred from losing possession of the Property and any personal property as a result, further making judicial notice of these portions of Plaintiff's Exhibit 2 inappropriate. See Khoja, 899 F.3d at 1000 (“It is improper to judicially notice a transcript when the substance of the transcript ‘is subject to varying interpretations, and there is a reasonable dispute as to what the [transcript] establishes.'” (Citation omitted)).

Similarly, Plaintiff and Defendant seek judicial notice of different declarations from a former member of Plaintiff's counsel, Attorney Kim Harrison. Attorney Harrison, while still a member of Plaintiff's counsel, submitted a declaration with Plaintiff's answer to Fannie Mae's unlawful detainer complaint. (See Pl.'s RJN Ex. 4 at 36.) Later, Attorney Harrison, while no longer a member of Plaintiff's counsel, submitted another declaration in support of her motion to quash Defendant's deposition subpoena. (See Def.'s RJN Ex. 19 (ECF No. 85-2); see also ECF No. 92 (replying to ECF No. 91 in opposition to ECF No. 85).) Though both affidavits are court documents, their contents discuss Plaintiff's loan modification application. (See Pl.'s RJN Ex. 4 at 36, ¶3; Def.'s RJN Ex. 19 ¶4.) This application is squarely at issue in this case, as the Court must determine when the application was sent and received, what were its contents, and whether, when, and how it was reviewed. See generally Cal. Civ. Code §§ 2923.7, 2924.10. Because the contents of the two declarations by Attorney Harrison go to material facts at issue in this case, the Court declines to take judicial notice of either document aside from the fact that each document exists. See, e.g., Briseno v. Bonta, No. 2:21-cv-09018-ODW, 2022 WL 3348940, at *2 n.3 (C.D. Cal. Aug. 12, 2022).

3. Facts Judicially Noticed

The Court must still decide what facts are judicially noticed within the documents which the Court has judicially noticed. “Just because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth.” Khoja, 899 F.3d at 999. In Plaintiff's Request for Judicial Notice, Plaintiff's counsel did not specify facts of which to take judicial notice from the documents attached to the request. (See Pl.'s RJN at 2.) Neither did Defendant. (See Def.'s RJN at 2-3.) However, as Defendant notes when objecting to Plaintiff's Request for Judicial Notice, a court “'may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it.'” (Def.'s Objs. to Pl.'s RJN at 3 (ECF No. 105-2) (quoting M/V Am. Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (citations omitted)).) Here, the Court takes judicial notice of all property records. See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F.Supp.2d 1257, 1264 (C.D. Cal. 2010) (collecting cases) (citing cases where a notice of a deed of trust, notice of default, notice of trustee's sale, assignment of deed of trust, and substitution of trustee have been judicially noticed). For the court records, the Court takes judicial notice of the following facts: (1) the fact that the document exists and was filed with this Court or another court, see, e.g., Briseno, 2022 WL 3348940, at *2 n.3; and (2) the date the document was filed, see, e.g., Hodges v. Hertz Corp., 351 F.Supp.3d 1227, 1234 (N.D. Cal. 2018).

II. Miscellaneous Procedural and Evidentiary Issues

A. The Parties' Procedural Objections Are Overruled

Plaintiff and Defendant both brought procedural objections against the other's submissions. Plaintiff complains that Defendant did not timely file its motion after being ordered to re-file a shorter brief. (See Pl.'s Opp'n at 6.) Defendant complains that Plaintiff “fail[ed] to cite a ‘particular portion[]' of the record in support of [Plaintiff's separate statement of facts.]” (Def.'s Reply at 2 (citing E.D. Cal. L.R. 260(b)).) However, these procedural issues and the evidentiary issues discussed below do not prevent this Court from deciding the Motion on the merits. Even if Plaintiff's failure to respond results in a fact being effectively undisputed, the Court must still determine whether the reasonable inferences from those facts entitle Defendant to summary judgment. See Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (explaining that amendments to Rule 56 “prohibit the grant of summary judgment ‘by default even if there is a complete failure to respond to the motion[]”).

B. Defendant's Evidentiary Objections Are Overruled

Defendant brings additional evidentiary objections to Plaintiff's exhibits attached to his Opposition and to Plaintiff's Request for Judicial Notice. (See generally Def.'s Objs. to Pl.'s Decl. (ECF No. 105-1); Def.'s Objs. to Pl.'s RJN; Def.'s Objs. to Pl.'s Opp'n Ex. 1 (ECF No. 105-3); Def.'s Objs. to Pl.'s Opp'n Ex. 2 (ECF No. 105-4).) Generally, the admissibility of evidence at summary judgment is governed by different rules and different motivations than at trial. At summary judgment, Rule 56 allows objections to evidence when “the material cited . . . cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The text of the rule suggests that the focus at summary judgment is on the substance, not the form. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). The party seeking entry of evidence bears the burden of proving that such evidence could be presented in an “admissible” form. See Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects, the moving party can direct the court to “authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). But if evidence falls short of “the formalities of Rule 56,” a district court still may exercise its discretion "to be somewhat lenient." Sch. Dist No. 1J, Multnomah Cnty, Or. v. ACandS, Inc., 5 F.3d 1255,1261 (9th Cir. 1993) (collecting cases).

1. Defendant's Objections to Exhibits 1 and 2.

Summary judgment's focus on substance over form makes certain objections unavailing at this stage. Form objections and objections based on relevance, vagueness, and speculation, if made to the substance of the evidence, are duplicative of Rule 56. See Fed.R.Civ.P. 56(c)(1). Hearsay objections may also be overruled at summary judgment. In Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), the Ninth Circuit considered the facts contained within a diary that itself would be inadmissible hearsay at trial because the contents of the plaintiff's diary could be revealed at trial through the plaintiff's personal knowledge and testimony, or as a recorded recollection should the plaintiff have failed to remember. See id. at 1 037 (citing Fed.R.Evid. 602, 612, 803(5)). Foundation and authenticity problems are similarly nonfatal if “the substance could conceivably be made admissible at trial.” Portnoy v. City of Davis, 663 F.Supp.2d 949, 953 (E.D. Cal. 2009) (quotation marks omitted).

a. Plaintiff's Exhibit 2 Was Considered.

Some of Defendant's evidentiary objections fall into the above-mentioned categories. (See, e.g., Def.'s Objs. to Pl.'s Decl. at 5 (lodging Defendant's fourth objection, which raises foundation and authentication arguments, among others); id. at 5 (lodging Defendant's fifth objection, which raises a hearsay objection, among others); Def.'s Objs. to Pl.'s Ex. 1 (raising authentication, foundation, and hearsay objections); Def.'s Objs. to Pl.'s Ex. 2 (raising the same three objections).) These objections are overruled, as Plaintiff can submit the same evidence in an admissible form at trial. Plaintiff's Exhibit 2 contains emails between Defendant's employees and Plaintiff's counsel, which can be admissible as opposing party statements to overcome the hearsay challenge and whose factual material can come in as a recorded recollection. See Fraser, 342 F.3d at 1037 (citing Fed.R.Evid. 602, 612, 803(5)); also Fed. R. Evid. 801(d)(2). Therefore, Plaintiff's Exhibit 2 was considered by the Court for summary judgment.

b. Objections to Plaintiff's Exhibit 1 Are Moot.

Plaintiff's Exhibit 1 contains what Plaintiff claims is the “complete” loan modification application Plaintiff's counsel sent to Defendant on June 12, 2015. (See Plaintiff's June 2015 Application; Pl.'s Opp'n at 10; TAC ¶ 107.) In resolving the Motion, however, the Court has only relied on the portions of the loan modification application that were submitted by Defendant. (ECF No. 97-3 at 1 58-161.) Accordingly, the objections to Plaintiff's Exhibit 1 are moot.¹

1 Plaintiff must provide adequate foundation and authentication at trial to introduce the actual application, and Defendant may re-assert its objections at that time.

2. The Objections to Plaintiff's Declaration Are Overruled.

Defendant brought objections to nineteen portions of Plaintiff's Declaration, each objection raising from two to nine arguments. Judges in the Eastern District of California have often cautioned litigants against terse and reflexive evidentiary objections at summary judgment, especially when the objector is the moving party. See, e.g., Lindell v. Synthes USA, 155 F.Supp.3d 1068, 1071 (E.D. Cal. 2016); U.S. EEOC v. Placer ARC, 114 F.Supp.3d 1048, 1052-53 (E.D. Cal. 2015); Hanger Prosthetics and Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F.Supp.2d 1122, 1126 n.1 (E.D. Cal. 2008); Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). Defense counsel is encouraged to review these orders to avoid unnecessary and unpersuasive objections in the future. The Court overrules Defendant's objections, except where stated, for purposes of summary judgment. Defendant may raise the same objections again before trial.

Defendant objected that Plaintiff did not have personal knowledge (see, e.g., objections 1, 3-5), but Plaintiff has personal knowledge of:

• paying Bank of America nearly $56,000 and being evicted from his home (objection number 1);

• the terms of Plaintiff's settlement agreement with Bank of America (objection number 3);

• the contents of the Notice of Rescission for which Defendant requested judicial notice (objection number 4);

• the contents of statements sent to Plaintiff by Defendant (objection number 5);

• Plaintiff's understanding of the terms of the settlement and the way the nearly $56,000 payment would relate to his past due loans (objection number 6);

• Plaintiff paying Bank of America $56,000 and that Plaintiff's home was thereafter foreclosed on by Bank of America (objection number 7);

• the fact that a former member of Plaintiff's counsel, Attorney Harrison, assisted him in putting together the disputed loan modification application (objection number 8);

• the fact that Attorney Harrison and Plaintiff used the most recent information Plaintiff had available at the time in his loam modification application (objection number 9);

• Plaintiff's receipt or not of any written information regarding his loan modification application and any missing documents (objection number 10);

• whether Defendants ever communicated to Plaintiff via his counsel and the contents of those communications, which can be introduced as opposing party statements and as statements of an authorized agent (objection number 11);

• whether Plaintiff's credit has been impacted following his dealings with Bank of America and Defendant (objection number 12);

• whether Defendant has alleged that Plaintiff has sent a loan modification application before the sale and when Plaintiff sent the loan modification application (objection number 13);

• what Plaintiff sent to Defendant with his loan modification application and when (objection number 14);

• whether Defendant ever sent Plaintiff notice of his loan modification application being denied or of his right to appeal (objection number 15);

• when Defendant took over responsibility for Plaintiff's loan and when Defendant sent Plaintiff notice (objection number 16);

• whether Defendant followed up on Plaintiff's claims that there was little past due on his mortgage (objection number 17);² and

• whether Plaintiff believes he should be in the Property (objection number 19).

These objections are overruled. (See Def.'s Objs. to Pl.'s Decl., Objs. Nos. 1,3-17, 19.)

2 Defendant's eighteenth objection was sustained as to paragraph 46. Plaintiff's Declaration at paragraph 46 was stricken and not considered in the Court's analysis because Plaintiff lacks knowledge of the matters alleged and draws legal conclusions.

Defendant objected that Plaintiff did not provide documents to the Court that form the basis of a factual contention (see Def.'s Objs. to Pl.'s Decl. at 2-8 (objections 1, 3-7, 9, 12-14, 16-17, 19)), but Plaintiff or Defendant provides the necessary documents in their Requests for Judicial Notice and as exhibits attached to the pleadings. (See Pl.'s RJN; Def.'s RJN; Def.'s MSJ (Exhibits 1 and 2); Pl.'s Opp'n (Exhibits 1 and 2); TAC (Exhibits A-N).) These objections are overruled.

Defendant objected that Plaintiff provided improper lay testimony or an improper expert opinion. (See Def.'s Objs. to Pl.'s Decl. at 3-21) (objections 2-3, 5-7, 9, 12, 14, 18-19).) These objections are overruled. Plaintiff never sought to introduce his testimony as an expert opinion. Plaintiff also never offered an expert opinion, but is describing his own personal health issues, despite using medical terms, or is describing his personal loan servicing experiences and the status of his finances. (Compare Def.'s Objs. to Pl.'s Decl. with Pl.'s Decl.) Therefore, the Rule 702 objections are overruled.

Under Rule 701, for opinion testimony by lay witnesses, the testimony must be (1) rationally based on the witness's perceptions, (2) helpful to clearly understanding the witness's testimony or to determining a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See Fed. R. Evid. 701. As opinion testimony by a lay witness, Plaintiff's Declaration is “rationally based on [his] perceptions,]” is “helpful to understanding [Plaintiff's] testimony [and] to determining [the] fact[s] in issue[,]" is based on Plaintiff's personal experiences, and is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Therefore, Defendant's objections under Rule 701 are overruled.

However, certain portions of statements within Plaintiff's Declaration made legal conclusions or arguments, so those portions were stricken from consideration by the Court, thus sustaining:

• Objection Number 4 as to the last two sentences;

• Objection Number 5 as to the portion stating “which I did not owe";

• Objection Number 7 as to the portions where Plaintiff stated “[i]t was clear[,]" “improperly[,]" and “large"; and

• Objection Number 12 as to “damaged".

(See Def.'s Objs. to Pl.'s Decl. at 5-7, 12.)

3. Plaintiff's Declaration Is Not a Sham.

Defendant finally argues that Plaintiff's Declaration should not be considered because his sworn Declaration contradicts prior deposition testimony, thus warranting summary judgment for Defendant because Plaintiff thereby failed to provide evidence raising a genuine dispute of material fact. (See Def.'s Reply at 6-7 (citing Cleveland v. Policy Mgmt Sys. Corp., 526 U.S. 795, 806 (1999); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)).) To accept Defendant's argument requires that the Court “make a finding of fact that [the affidavit] w[as] a ‘sham.'" Kennedy, 952 F.2d at 267 (remanding the case for the district court to make this finding of fact). To find that Plaintiff's Declaration “was actually a ‘sham[,]'" the Court must find that Plaintiff's subsequent declaration “flatly contradicts [his] earlier testimony in an attempt to ‘create' an issue of fact and avoid[] summary judgment." Id. (discussing Foster v. Arcata Assocs., 772 F.2d 1453 (9th Cir. 1985); Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975)). The contradiction or inconsistency between the prior testimony and subsequent statement must be “clear and unambiguous to justify striking the affidavit.” Van Asdale v. Int'Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). However, “elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition” is permitted, and “minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.” Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995) (citing Kennedy, 952 F.2d at 266-67).

Here, the Court finds it more likely that Plaintiff was “confused during their deposition testimony” than trying to lodge a sham affidavit to delay summary judgment. Van Asdale, 577 F.3d at 998. First, several times in Plaintiff's deposition it appeared that Plaintiff was confused about what question was being asked or the sequencing of events. (See, e.g., Pl.'s Dep. Tr. at 91:2-99.) Those confusions alone would justify submitting a subsequent affidavit to clarify Plaintiff's prior deposition. See Messick, 62 F.3d at 1231. Second, any inconsistencies are minor, to the extent they exist. For instance, Defendant makes much about the fact that Plaintiff “has made several damaging admissions regarding his lack of communications (and lack of knowledge of communications) with Defendant.” (See Def.'s Reply at 3 (citation omitted).) However, though Plaintiff admitted that Plaintiff himself had no communications whatsoever with Defendant (see Pl.'s SOF Nos. 1 5-16 (disputed)), Plaintiff's Declaration elaborated on his prior testimony indicating that one of his attorney's helped him, “Kim[] or Tanya.” (Pl.'s Dep. Tr. at 102:20; see Pl.'s Decl. ¶¶ 12, 15 (clarifying that “[he] advised [his] attorneys of the billing issue” and that “[his] attorney's staff person, Kim, assisted in putting the modification packet together[]").) Similarly, Defendant latches upon Plaintiff's apparent admission that Plaintiff was unaware of any facts that would lead him to believe Defendant was put on notice of the need for an audit (see Pl.'s SOF No. 17 (disputed)), but Plaintiff stated during his deposition that “I don't know anything about that. You know - that would be my attorney.” (Pl.'s Dep. Tr. at 143:16-18.)

Moreover, Plaintiff elaborated upon his answer regarding the need for an audit by clarifying his prior testimony to explain that there was a dispute between Bank of America and Plaintiff regarding a rent demand or set off that went to court without being resolved apparently. (Compare Pl.'s Dep. Tr. at 96:5-99:11 (Plaintiff and Plaintiff's counsel explaining that the dispute over the total outstanding debt arose from Plaintiff not having title to the Property) with Pl.'s Decl. ¶ 14 (explaining that Bank of America “had failed to obtain [an] order from the Court for [Plaintiff] to pay any rental amounts during litigation[,] . . . but they were unsuccessful in negotiating it and failed to follow up on their demand for rental payments and apparently dropped the ball[]”).) In fact, Plaintiff's Declaration corroborates what Plaintiff earlier stated in his Responses to Defendant's Special Interrogatories. (See Pl.'s Resp. to Def.'s Special Interrog. No. 25 (“My attorney was adamant during the negotiation that she would not give a set off to Bank of America and they would have proceeded to trial as this was obvious by Bank of America's own documents that they did not have any right to collect the payments that they failed to obtain and [sic] agreement or order from the court . . . .””).)

Thus, the Court finds that Plaintiff does no more than elaborate upon or clarify earlier deposition testimony where Plaintiff might have been confused when confronted by counsel. Furthermore, to the extent any discrepancies or inconsistencies exist between Plaintiff's deposition transcript and his subsequent Declaration, wherever those discrepancies or inconsistencies are not “clear and unambiguous,” those discrepancies and inconsistencies go to Plaintiff's credibility and should be addressed by a jury whose job it is to weigh conflicting evidence. See Van Asdale, 577 F.3d at 998.

III. Summary Judgment

A. Standard

The Federal Rules of Civil Procedure provide for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 322. One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. Therefore, the “threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party” or conversely “whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Id. at 247-48. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248.

In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portion of the record “which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party, which “must establish that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 585 (1986). To meet its burden, either party must “(A) cit[e] to particular parts of materials in the record, . . . or (B) show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

For the opposing party to succeed and avoid summary judgment, the party “must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The opposing party must put forth more than “a scintilla of evidence in support of the [party's] position . . . .” Anderson, 477 U.S. at 252. Rather, the opposing party must produce enough evidence such that “the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on the evidence.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, for the moving party to succeed, the Court must conclude that no rational trier of fact could find for the opposing party. Matsushita, 475 U.S. at 587. However, so as not to “denigrate the role of the jury[,]” “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,” and so the Court draws all reasonable inferences and views all evidence in the light most favorable to the opposing party. Anderson, 477 U.S. at 255; see Matsushita, 475 U.S. at 587-88.

Defendant seeks summary judgment on Plaintiff's remaining six claims for: (1) violations of the California HBOR (first claim); (2) common law negligence (sixth claim); (3) violations of California's UCL (seventh claim); (4) intentional infliction of emotional distress (eleventh claim); (5) negligent infliction of emotional distress (twelfth claim); and (6) wrongful foreclosure (thirteenth claim). (See Def.'s MSJ at 3-13 (argument directed at Plaintiff's first claim under the HBOR); Def.'s MSJ at 13-15 (argument directed at Plaintiff's sixth claim for negligence); Def.'s MSJ at 15 (argument directed at Plaintiff's seventh claim under California's UCL); Def.'s MSJ at 15-18 (argument directed at Plaintiff's eleventh claim for intentional infliction of emotional distress); Def.'s MSJ at 19 (argument directed at Plaintiff's twelfth claim for negligent infliction of emotional distress); Def.'s MSJ at 19-20 (argument directed at Plaintiff's thirteenth claim for wrongful foreclosure).) As the Court will explain, the Court finds that there exists at least one genuine dispute of material fact regarding Plaintiff's first, seventh, eleventh, and thirteenth claims, thus precluding summary judgment. However, the Court finds that Defendant is entitled to summary judgment on the remaining claims.

B. First Claim for Remaining Violations of California's HBOR

Plaintiff's first cause of action under the HBOR raises three causes of action based on three separate statutory violations. With respect to the remaining defendant, Seterus, Incorporated, Plaintiff's first cause of action alleges that Defendant failed to provide a single point of contact as required by California Civil Code section 2923.7 in connection with the submission of a June 12, 2015 loan modification application. Plaintiff's second cause of action under the HBOR further alleges that Defendant failed to provide Plaintiff with acknowledgment of receipt of his application, violating California Civil Code section 2924.10. Finally, Plaintiff's third cause of action under the HBOR alleges that Defendant improperly relied on a 2009 Notice of Default that was rescinded, and that without a proper notice of default, Defendant violated California Civil Code section 2924.

The California HBOR “is principally designed to ensure that ‘as part of the nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower's mortgage servicer, such as loan modifications or other alternatives to foreclosure.'” Morris v. JPMorgan Chase Bank, N.A., 78 Cal.App. 5th 279, 295 (2022) (quoting Cal. Civ. Code § 2923.4). “The HBOR lays out a carefully calibrated enforcement mechanism[,]” Morris, 78 Cal.App. 5th at 295, which one commentator has noted “[is] detailed and extensive (and in many cases, extraordinarily difficult to navigate),” 5 Miller and Starr, California Real Estate § 185 (4th ed. Dec. 2022 update) (“5 Miller and Starr”).

Relevant here, the HBOR places two important limitations on the borrower's ability to recover damages. First, the borrower is limited to relief arising from a “material violation” of a specified provision authorizing relief. See Cal. Civ. Code § 2924.12(a)-(b) (section authorizing relief against larger financial institutions, with many applicable provisions authorizing relief); Cal. Civ. Code § 2924.19(a)-(b) (section authorizing relief against smaller financial institutions, with few applicable provisions authorizing relief). As interpreted by California courts, a material violation occurs where the violation: (1) affects the borrower's loan obligations, (2) disrupts the borrower's loan modification process, or (3) causes the borrower to suffer harm that she would not have otherwise suffered related to her right to be considered for loss mitigation options. See, e.g., Morris, 78 Cal.App. 5th at 304-05 and n.14 (citing and discussing Billesbach v. Specialized Loan Servicing, LLC, 63 Cal.App. 5th 830, 837 (2021) and Cardenas v. Caliber Home Loans, Inc., 281 F.Supp.3d 862 (N.D. Cal. 2017)). Second, the HBOR limits a borrower's damages to “actual economic damages.” See Cal. Civ. Code § 2924.12(b); Cal. Civ. Code § 2924.19(b); Morris, 78 Cal.App. 5th at 303 n.13.

Therefore, to state a cause of action under the HBOR, the borrower must prove: (1) that there was a violation of a specified provision under section 2924.12 for larger financial institutions or section 2924.19 for smaller financial institutions; (2) that the violation of a specified provision was “material;” (3) that there were actual economic damages; and (4) that those actual economic damages “result[ed] from a material violation of” one of the specified provisions. See Cal. Civ. Code § 2924.12(b); Cal. Civ. Code § 2924.19(b); Morris, 78 Cal.App. 5th at 303-06.

In its Motion for Summary Judgment, Defendant Seterus, Incorporated argues that each of Plaintiff's three causes of action under the HBOR fail as a matter of law. The Court addresses each in turn.

1. Plaintiff Can Show Violations of Section 2923.7.

Plaintiff's first cause of action under the HBOR concerns the requirement that a mortgage servicer provide a single point of contact in connection with a request for a loan modification. (See TAC ¶¶ 39, 78-81, 109 (citing Cal. Civ. Code § 2923.7).) That provision as it existed in 2015 provided that “[u]pon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” Cal. Civ. Code. § 2923.7(a) (West 2013).

As an initial matter, Defendant argues that Plaintiff was not entitled to a single point of contact with regard to his June 2015 application because Defendant was not required to consider any subsequent applications under California Civil Code section 2923.6, for three reasons. First, Defendant argues that it was not required to review another application from Plaintiff who had already been reviewed four times. (See Def.'s MSJ at 4-5, 11-12; Def.'s Reply at 4, 7.) Second, Defendant argues that the subsequent loan modification application was not timely submitted. (See Def.'s MSJ at 5, 12; Def.'s Reply at 7.) Third, Defendant argues that the June 2015 application was not complete. (See Def.'s MSJ at 5; Def.'s Reply at 4.) Defendant ultimately argues that since it was not required to consider Plaintiff's application based on any of the three reasons it raises, any violation of the HBOR was not “material,” thus precluding liability. None of these contentions have merit.

a. Plaintiff Can Show a Material Change in His Finances.

Turning first to the issue presented by Plaintiff's multiple applications, section 2923.6(g) generally prohibits “borrowers from submitting multiple applications,” and provides that:

the mortgage servicer shall not be obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1,2013, or who has 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.

Cal. Civ. Code § 2923.6(g) (West 2013). In addition to submitting three prior applications for a loan modification, in November 2014, Plaintiff submitted an application for a loan modification that Bank of America denied on February 17, 2015. Because of these prior applications, Defendant argues that Plaintiff was not entitled to further review, and therefore there can be no liability under the HBOR. This ignores the exception for borrowers who disclose a material change in financial circumstances.

Examining the November 2014 application and the June 2015 application reveals that Plaintiff brought forth evidence of a material change in his financial circumstances. Generally speaking, conclusory statements are not enough, and “the plaintiff must do more than submit a new loan modification with different financial information.” Saber v. JPMorgan Chase Bank, N.A., No. SACV 13-00812-DOC, 2014 WL 255700, at *3 (C.D. Cal. Jan. 23, 2014), aff'dsubnom, Saber v. J.P. Morgan Chase Bank, N.A., 650 Fed.Appx. 527 (9th Cir. 2016); see also Winterbower v. Wells Fargo Bank, N.A., No. SA CV 13-0360-DOC, 2013 WL 1232997, at *3 (C.D. Cal. Mar. 27, 2013) (noting that “to ‘document' and ‘submit' a material change in circumstances means more than simply stating one's expenses decreased and then providing two numbers[]”). (Compare with Pl.'s SOF Nos. 7-8 (undisputed).) Most of these cases involve particularized claims of decreased costs or debts. See, e.g., Park v. Ocwen Loan Servicing, LLC, No. 15-cv-03400-EDK, 2017 WL 11682614, at *8-9 (N.D. Cal. May 10, 2017) (collecting cases in which changes over $1,000 were found sufficient but an $18 change was insufficient, and holding that a $300 change that constituted less than 2% of the outstanding debt was not material). Defendant cites to some of these cases to argue that “Defendant had no duty to review the June 2015 application.” (Def.'s MSJ at 5 (citations omitted).)

Here, however, Plaintiff's loan modification application disclosed a claim to a material change: that he was going through his second divorce and that his expenses had changed due to changes in the amount of alimony he was required to pay. When comparing Plaintiff's loan modification applications submitted to Defendant (See Pl.'s Dep. Tr. Ex. 24) and to Bank of America (Pl.'s Dep. Tr. Ex. 18), there are some crucial differences. The Parties do not dispute that Plaintiff's monthly income is the same in his November 2014 application with Bank of America that was reviewed and denied in February 2015 and in his June 2015 application with Defendant. (See Pl.'s SOF No. 7 (undisputed).) However, Plaintiff's applications show what appears to be a four-digit difference in alimony payments - from $13,000 temporarily and then $1,400 in his first application with Bank of America (see Pl.'s Dep. Tr. Ex. 18 at 2), to what appears to be either $9,689 or $4,489 in his second application with Defendant (see Pl.'s Dep. Tr. Ex. 24 at 2). That is, though Plaintiff's monthly income figures were the same, his costs had changed by thousands of dollars, which courts have held is sufficient to show a material change in a borrower's financial circumstances. See Park, 2017 WL 11682614, at *8-9 (collecting cases).

Accordingly, Plaintiff was permitted to file a subsequent application even after the November 2014 application was denied, and Defendant was obligated to review it. See Cal. Civ. Code § 2923.6(c)-(g).

b. Plaintiff's Application Was Timely.

Plaintiff also timely submitted his loan modification application. In arguing to the contrary, Defendant appears to rely on a version of section 2923.6 that was not in effect at the time Plaintiff filed his application. (See Def.'s MSJ at 5 (quoting Cal. Civ. Code § 2923.6(c) (West 2019).) While the current version of section 2923.6 only applies to a loan modification application submitted “at least five business days before the scheduled foreclosure sale,” Cal. Civ. Code § 2923.6(c) (West 2019), the prior version contained no such time limitation. See Civ. Code § 2923.6(c) (West 2013).³ Furthermore, the California Legislature was clear that the changes made in 2018 did not apply retroactively, expressly stating:

3 The current language reads, in relevant part: "If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, 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.” Cal. Civ. Code § 2923.6(c) (West 2019) (emphasis added). The language in effect in June 2015, however, read in relevant part: "If 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.” Cal. Civ. Code § 2923.6(c) (West 2013) (emphasis added).

It is the intent of the Legislature that any attachment, addition, or repeal of a section or part of a section enacted by Senate Bill 900 (Chapter 87 of the Statutes of 2012) and Assembly Bill 278 (Chapter 86 of the Statutes of 2012), commonly known as the California Homeowner Bill of Rights, that took effect as of January 1,2018, shall not have the effect to release, extinguish, or change, in whole or in part, any liability that shall have been incurred under that section, or part of a section, prior to January 1, 2018, unless the amendment, addition, or repeal expressly so provides. The section, or part of a section, that was amended, added, or repealed shall be treated as still remaining in force for the purpose of sustaining any proper action, suit, or proceeding for the enforcement of such a liability, as well as for the purpose of sustaining any judgment, decree, or order.

2018 Cal. Legis. Serv. Ch. 404 § 26 (S.B. 818) (West).

“California courts comply with the legal principle that unless there is an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.” Myers v. Philip Morris Cos., Inc., 28 Cal.4th 828, 841 (2002). There is no indication of any legislative intent regarding retroactivity. In fact, the only indication of retroactivity is that any claims existing under a prior version of the statute “shall be treated as still remaining in force for the purpose of sustaining any proper action, suit, or proceeding for the enforcement of such a liability . . . .” 2018 Cal. Legis. Serv. Ch. 404 § 26.

Accordingly, Plaintiff timely submitted his loan modification application to Defendant,⁴ and Defendant was obligated to review it. See Cal. Civ. Code § 2923.6(c)-(g) (West 2013).

4 The Court notes that Defendant concedes that it did in fact review Plaintiff's application. (See Def.'s MSJ at 5; also Def.'s Reply at 4; Pl.'s SOF Nos. 9-11 (disputed).) Accordingly, Defendant also cannot argue that there was insufficient time to consider Plaintiff's application.

c. A Jury Could Find Plaintiff's Application Was Complete.

Finally, Defendant argues that there was no material violation of the HBOR because Plaintiff's June 12, 2015 Application was incomplete. California Civil Code section 2923.6(c) applies to a “complete” application to trigger the bar on a trustee's sale while an application is pending. Subsection (h), in turn, defines “complete” as “when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” Cal. Civ. Code § 2923.6(h) (West 2013 and 2019). Defendant states that Plaintiff's June 12, 2015 Application was missing two months of bank statements and documentation showing his receipt of his claimed social security income. (See Stoltzman Decl. ¶ 18; Def.'s Reply at 4.) Plaintiff disputes this fact, asserting that he submitted a complete application that contained “the Uniform Borrower Assistance form, a hardship letter, bank statements, income and expenses, requests for tax transcripts, Home Affordable Modification Program, govt monitoring data form, pay statements from my employer, pension fund.” (Pl.'s Resp. to Def.'s Special Interrog. No. 1; see also Pl.'s Decl. ¶¶15-16.) The HBOR requires the mortgage servicer to define a “complete” application and establish a timeline for submitting a “complete” application. See Cal. Civ. Code § 2923.6(h). In the absence of any documents or communications showing that Plaintiff was informed what made a “complete” application, the Court leaves this issue for a jury, as Plaintiff has brought evidence from which a reasonable jury could find that Plaintiff submitted a “complete” application.

Even if a reasonable jury could find that Plaintiff's application was incomplete, a reasonable jury could conclude that any omission flowed from Defendant's failure to provide a single point of contact if Plaintiff was entitled to one (which he was (See ECF No. 67 at 7 (citations omitted))). The HBOR requires that the single point of contact be responsible for five tasks that generally require that the single point of contact serve as the document and information intermediary for the borrower. See generally Cal. Civ. Code § 2923.7(b)(1)-(5). The provisions in section 2923.7(b) through (d) thereby seeks to prevent the borrower from “being given the run around, being told one thing by one bank employee while something entirely different is being pursued by another.” Jolley v. Chase Home Fin., LLC, 213 Cal.App.4th 872, 905 (2013). If the single point of contact is competent as to its five responsibilities, that should enable the mortgage servicer and the relevant financial institutions servicing the loan to not violate the provisions targeting “dual tracking.” “Dual tracking refers to a common bank tactic[] [whereby] [w]hen a borrower in default seeks a loan modification, the institution often continues to pursue foreclosure at the same time.” Jolley, 213 Cal.App.4th at 904 (citations omitted). Section 2923.6 seeks to ameliorate the problems of dual tracking by imposing several procedures that require the mortgage servicer to review a loan modification application, determine the borrower's eligibility for relief, provide a timeline to appeal the decision, and, if the application is “complete” as defined by the mortgage servicer under California Civil Code section 2923.6(g), to postpone further action in the foreclosure process until the borrower is offered loan modification alternatives or has exhausted the available loss mitigation options. See Cal. Civ. Code § 2923.6(c).

All this is to say that the whole point of a single point of contact is to prevent what may have happened here: a failure to provide certain pieces of information required by the loan servicer to process an application. Defendant cannot argue a violation of section 2923.7 is not material because of a mistake that section 2923.7 was designed to prevent in the first place.

d. Defendant Materially Violated Section 2923.7.

Defendant next argues that even if the subsequent application was timely, Plaintiff has failed to show how a violation of section 2923.7 was material. Defendant points to the fact that when asked how the violation of section 2923.7 was material, Plaintiff pointed to the failure of Defendant to conduct an audit as he allegedly requested. (See Def.'s MSJ at 6.) Defendant then devotes much of its Motion to arguing that any such audit would have shown that Plaintiff was given credit for all payments made, and that, in any event, Plaintiff was barred from litigating the issue based on the prior settlement and principles of res judicata. These audit-related arguments, however, have no merit.

Defendant's argument appears to conflate the requirement that the violation be a material one, which is a question of law, with the requirement that the Plaintiff experience actual economic damages, which is a question of fact. In Morris, the trial court similarly confused the two terms, granting a demurrer for failure to allege “material ‘actual economic' damages.” Morris, 78 Cal.App. 5th at 303. As the court of appeal noted in reversing that decision, California Civil Code section 2924.12(b) provides that a defendant “shall be liable to a borrower for actual economic damages . . . resulting from a material violation of [specified sections].” Cal. Civ. Code § 2924.12(b) (emphasis added). According to the court of appeal, to show actual economic damages, a plaintiff must only show that she “suffered detriment from the unlawful act or omission of another ([Cal. Civ. Code] § 3281) on facts allowing a reasonable inference that the detriment was ‘economic' in nature.” Morris, 78 Cal.App. 5th at 303. A material violation of section 2923.7, however “is one that affected the borrower's loan obligations, disrupted the borrower's loan modification process, or otherwise harmed the borrower.” Id. at 304 (quoting Billesbach, 63 Cal.App. 5th at 837.) As explained in Billesbach, this simply means that “the HBOR creates no liability for a technical violation that does not thwart its purposes.” Billesbach, 63 Cal.App. 5th at 845. Here, Defendant has not provided any facts to suggest that a single point of contact was provided to Plaintiff. Unlike a single point of contact that might have failed to meticulously comply with the requirements of section 2923.7, the complete failure to provide such a contact is a material violation of that section as a matter of law.

To summarize: Defendant was required to consider Plaintiff's loan modification, which was timely submitted. A reasonable jury could conclude the Plaintiff's loan modification was complete, or that a lack of completeness is excusable given the failure to appoint a single point of contact. Finally, the alleged violation is material. Accordingly, Defendant's Motion for Summary Judgment regarding the first cause of action under the HBOR, violations of California Civil Code section 2923.7, is DENIED.

2. Plaintiff Can Show Violations of Section 2924.10.

In his second cause of action, Plaintiff further alleges violations of California Civil Code section 2924.10(a), which states that “[w]hen a borrower submits a complete first lien modification application or any document in connection with a first lien modification application, the mortgage servicer shall provide written acknowledgment of the receipt of the documentation within five business days of receipt.” In its Motion for Summary Judgment, similar to the arguments as to section 2923.7, Defendant argues (1) that Plaintiff has not shown any facts to support the alleged violation; (2) that Plaintiff was not entitled to a review of his application or a loan modification; and (3) that compliance would not have assisted Plaintiff.

First, Plaintiff has pled facts sufficient for a jury to find violations of section 2924.10. In his Declaration, Plaintiff stated: “I never received any thing in writing from Seterus confirming they received the packet.” (Pl.'s Decl. ¶ 17.) Plaintiff also stated that Defendant did not communicate with him that the loan modification package was missing any information, and that he did not find out the modification was denied until being served with an eviction notice. (Pl.'s Decl. ¶¶ 18-19.) This is sufficient for a reasonable jury to find violations of section 2924.10. Second, for the reasons stated above in connection with the alleged violations of section 2923.7, Plaintiff was entitled to a review of his loan modification application. See supra Part III.B.1.a.

Finally, any violations were material. As with section 2923.7, Defendant completely failed to meet any of the requirements of section 2924.10. As such, any violations were material as a matter of law. While Defendant is correct that the “letter could have been sent after the trustee's sale and Defendant would have remained in compliance with section 2924.10” (Def's MSJ at 12), that goes to Plaintiff's actual economic damages, if any.

Accordingly, Defendant's Motion for Summary Judgment regarding the second cause of action under the HBOR, violations of California Civil Code section 2924.10, is DENIED.

3. The HBOR Does Not Authorize Relief Under Section 2924.

As Defendant notes, the California HBOR specifically delineates which provisions of the statutory regime permit monetary damages for a material violation. (See Def.'s MSJ at 12-13; Def.'s Reply at 7-8.) Section 2924.12 provides monetary damages following the recording of a Trustee's Deed Upon Sale for violations of sections 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.17. See Cal. Civ. Code § 2924.12(b). Because section 2924 is not included within that list, Plaintiff may not pursue an action for monetary damages on this ground. See Penermon v. Wells Fargo Bank, N.A., 47 F.Supp.3d 982, 997 (N.D. Cal. 2014); Zeppeiro v. Green Tree Servicing, LLC, 679 Fed.Appx. 592, 593 (9th Cir. 2017) (Mem.); Orosco v. Specialized Loan Servicing, LLC, No. 2:20-cv-00743-KJM-EFB, 2020 WL 4898054, at *2 (E.D. Cal. Aug. 20, 2020).

Accordingly, Defendant's Motion for Summary Judgment regarding the third cause of action under the HBOR, violations of California Civil Code section 2924, is GRANTED.

C. Sixth Claim for Negligence

In his sixth cause of action, Plaintiff alleges that Defendants (presumably, including Seterus) breached a duty of care to Plaintiff by misrepresenting the amount of money owed to him and by sending Plaintiff a Notice of Trustee's Sale after assuring him that they would not foreclose until they had completed an accurate accounting of the amount owed. (TAC ¶¶ 148-50.) Negligence under California law requires the plaintiff to prove: (1) that the plaintiff was owed a duty; (2) that that duty was breached; and (3) “that the breach was a proximate or legal cause of their injuries.” Merrill v. Navegar, Inc., 26 Cal.4th 465, 477 (2001) (citation omitted).

While this Court previously denied Defendant's motion to dismiss after finding that Defendants owed Plaintiff a duty of care (See ECF No. 67 at 12-13; ECF No. 44 at 18), the California Supreme Court has overruled the California cases on which those prior orders relied. See Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 948 (2022). The California Supreme Court addressed the first question of whether a “lender owe[s] a borrower a tort duty sounding in general negligence principles to . . . ‘process, review and respond carefully and completely to [a borrower's] loan modification application,' such that upon a breach of this duty the lender may be liable for the borrower's economic losses . . . .” Id. at 915. The California Supreme Court held that there is no such duty between a lender and borrower. See id.

Plaintiff argues that Sheen does not dictate the outcome in this case. (See Pl.'s Opp'n at 10-11.) It plainly does. First, Plaintiff claims that the duty alleged in his complaint is not based on “losing documents or not handling his modification with care. It is [Defendant's] denial of the modification without any investigation into whether Plaintiff's lawyers were correct in the history of the loan and the most recent litigation.” (Pl.'s Opp'n at 10-11.) It is not clear to the Court how a claim to a duty to “investigate” Plaintiff's assertions regarding his loan modification application is any different from the duty proposed and rejected in Sheen: “to process, review and respond carefully and completely to the loan modification applications Plaintiff submitted.” Sheen, 1 2 Cal. 5th at 915. To review the loan modification and to respond carefully and completely to it would seem to require investigating any claims raised by the borrower or in the borrower's application. Even if there were daylight between the two, Plaintiff does not demonstrate how these are not purely economic losses, the kind of which the Sheen Court concluded are not typically the kind of losses cognizable in negligence actions. Sheen, 12 Cal. 5th at 920. Having found that the California Supreme Court has already rejected recognizing such a duty, this Court declines to do so.

Therefore, the Court GRANTS Defendant's Motion for Summary Judgment on Plaintiff's sixth cause of action.

D. Seventh Claim Under California's Unfair Competition Law

To state a cause of action for unfair competition under California's UCL, a plaintiff must allege an “unlawful, unfair, or fraudulent business act or practice” or “unfair, deceptive, untrue, or misleading advertising.” Cal. Bus. and Prof. Code § 17200. California's UCL “borrow[s] violations of other laws and treats” them as unlawful business practices “independently actionable under section 17200.” Farmers Ins. Exch. v. Sup. Ct., 2 Cal.4th 377, 383 (1992) (quotation marks omitted). As Defendant recognizes, Plaintiff's cause of action under California's UCL is “derivative of the allegations described [in the third amended complaint.]” (Def.'s MSJ at 15 (citing TAC ¶¶ 157-58).) Because the Court finds that triable issues of fact exist regarding Plaintiff's cause of action under the HBOR (and later under Plaintiff's causes of action for intentional infliction of emotional distress and wrongful foreclosure), Plaintiff's derivative cause of action under California's UCL remains viable.

Therefore, the Court DENIES Defendant's Motion for Summary Judgment on Plaintiff's seventh cause of action.

E. Eleventh Claim for Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress (“IIED”) requires: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing emotional distress; (2) the plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 1001 (1993) (citation and quotation marks omitted). The tort of IIED has a high threshold. For conduct to be “outrageous” requires it to be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. (citation omitted). For the emotional distress to be “severe or extreme” requires it to be “of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” Potter 6 Cal.4th at 1004 (quotation marks omitted). Despite the generally high threshold, Plaintiff has produced evidence sufficient to create a triable issue of fact regarding Defendant's conduct and Plaintiff's distress.

First, for the outrageous conduct, courts generally hold as a matter of law that foreclosing on a home and acts incidental to that legal process do not count as “outrageous” conduct. See, e.g., Reyes v. NationstarMortg. LLC, No. 15-CV-01109, 2015 WL 7015571, at *3 (N.D. Cal. Nov. 12, 2015) (collecting cases). Cf Cal. Civ. Code § 2924(b) (“In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to [the Rosenthal Fair Debt Collection Practices Act].”). However, where the defendant's right to foreclose is at issue, as in this case, as explained below, see infra Part III.G, courts hold that such conduct can be the basis of an IIED claim. See, e.g., Ragland v. U.S. Bank Nat'Assn, 209 Cal.App.4th 182, 204-05 (2012) (declining to grant the defendant's motion for summary judgment where the plaintiff established triable issues of fact on her causes of action for, relevant here, a provision of the nonjudicial foreclosure statutes, Cal. Civ. Code § 2924g(d)); Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 1045-46 (2009) (reversing the trial court's grant of summary judgment for the defendant where the defendant “chang[ed] the locks on someone's dwelling without consent to force that person to leave [a]s prohibited by statute[]").

Here, Plaintiff asserts that Defendant's “conduct became outrageous when one looks at the lengths to which . . . Seterus went to conceal the fact that they had rescinded the Notice of Default that the parties continued to use to foreclose/evict Mr. Mountjoy." (TAC ¶ 188; see also Pl.'s Decl. ¶¶ 43-44; Pl.'s Resp. to Def.'s Special Interrog. Nos. 7, 13-1 6; Pl.'s Dep. Tr. at 65:19-66:22.) The record and Defendant's position in this Motion support this argument, as Defendant has continuously proceeded as though a valid Notice of Default existed, even though the Notice of Rescission also rescinded any declaration of defaults, which would also rescind any Notices of Default. See infra Part III.G (citing Def.'s RJN Ex. 14 at 74; Cal. Civ. Code § 2924c(a)(2); 5 Miller and Starr § 13:230). Because Defendant violated a statutory requirement, Defendant therefore engaged in unlawful conduct incident to the foreclosure process that is actionable under an IIED theory of liability. See Ragland, 209 Cal.App.4th at 205 (citing Cal. Civ. Code § 2924g(d)).

Moreover, as stated earlier, the record shows that Plaintiff tried raising several issues with Defendant, thereby putting it on notice that there was an issue with the amount claimed at default, which would necessarily raise issues about the Notice of Default. (See, e.g., Pl.'s Resp. to Def.'s Special Interrog. No. 7 (“Upon notice of transfer of the loan to Seterus my counsel contacted Seterus and told them the same thing she had been telling [Bank of Americans counsel. That they had no legal right to charge Plaintiff over 100k in default after we settled the case."); see also Pl.'s Opp'n Ex. 2 (providing a copy of email communications between Defendant's in-house counsel and Plaintiff's counsel on 6/23/2015, before the sale was finally recorded, by which time Plaintiff's counsel conclusively put Defendant on notice).) The notice of a potential issue with the Notice of Default and of potential issues with Plaintiff's health (see, e.g., Pl.'s Resp. to Def.'s Special Interrog. Nos. 8, 11), plus the continued and completed violation of a statutory requirement is enough to create a material issue regarding the outrageousness of Defendant's conduct. See Potter, 6 Cal.4th at 1002-03.

Second, for the extreme distress, the California Supreme Court has held that “discomfort, worry, anxiety, upset stomach, concern, and agitation” are not enough. Hughes v. Pair, 46 Cal.4th 1035, 1051 (2009). (Compare with Pl.'s Decl. ¶ 33 (“As time went on, I became more stressed, anxious and depressed.”).) However, Plaintiff does sufficiently allege physical distress to bring a triable issue regarding severe or extreme emotional distress, as when he claims that he “began having heart pains, lost sight in one and then both eyes and finally was in such pain [he] took [him]self to the hospital.” (Pl.'s Decl. ¶ 34; see also Pl.'s Decl. ¶ 35 (“I was in the hospital for emergency surgery. It was the most pain I have ever experienced in my life.”).)

The Court therefore DENIES Defendant's Motion for Summary Judgment on Plaintiff's eleventh cause of action for intentional infliction of emotional distress.

F. Twelfth Claim for Negligent Infliction of Emotional Distress

Because "[t]here is no independent tort of negligent infliction of emotional distress[,]” the Plaintiff must still establish that there is a duty owed to the plaintiff. Ragland, 209 Cal.App.4th at 205 (quoting Potter 6 Cal.4th at 984). Because there is no common-law duty between Plaintiff and Defendant (see supra, Part III.C), Plaintiff's twelfth cause of action must also fail.

The Court therefore GRANTS Defendant's Motion for Summary Judgment on Plaintiff's twelfth cause of action for negligent infliction of emotional distress.

G. Thirteenth Claim for Wrongful Foreclosure

Plaintiff's thirteenth cause of action alleges unlawful foreclosure, arguing that Defendant knew the information provided by Bank of America was inaccurate and did not warrant foreclosure. Generally, to state a claim for wrongful foreclosure, the plaintiff must prove: (1) that the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property under a power of sale in a mortgage or deed of trust; (2) that the plaintiff was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, that the trustor tendered the outstanding debt or was excused from doing so. See Miles v. Deutsche Bank Nat' Trust Co., 236 Cal.App.4th 394, 408 (2015); also 5 Miller and Starr § 13:254 (providing the same three elements and collecting cases). Plaintiff has provided sufficient information to meet each of these three elements.

First, there is evidence that Defendant caused an illegal, fraudulent, or willfully oppressive sale. Critically, Defendant failed to provide Plaintiff with a proper Notice of Default in violation of the nonjudicial foreclosure statutes. See Cal. Civ. Code § 2924(a)(1). This failure is not some technical defect but is an essential element of the nonjudicial foreclosure system. See Morris, 78 Cal.App. 5th at 294 (“California's system of nonjudicial foreclosure . . . is founded upon and presupposes adequate- and thus constitutionally valid-presale notice.” (citations omitted)). Defendant argues that the 2012 rescission did not also rescind the 2009 Notice of Default because it does not say so on the text of the Note. (See Def.'s MSJ at 17 (“Specifically, that document was titled ‘NOTICE OF RESCISSION of Trustee's Deed Upon Sale' (not ‘NOTICE OF RESCISSION if [sic] Notice of Default AND Trustee's Deed Upon Sale').”); also TAC Ex. B (ECF No. 49-2) (providing a copy of the 5/31/2012 Notice of Rescission); Def.'s RJN Ex. 5 (providing the same); Pl.'s SOF Nos. 50-53 (undisputed except for No. 50).) However, in Plaintiff's subsequent Note of Deed of Trust and Assignment of Rents executed on December 14, 2004, the Deed of Trust states:

Lender may rescind any notice before Trustee's sale by executing a notice of rescission and recording the same. The recordation of such notice shall constitute also a cancellation of any prior declaration of default and demand for sale, and of any acceleration of maturity of indebtedness affected by any declaration or notice of default.

(Def.'s RJN Ex. 14 at 74 (section 3g of the Deed of Trust).) See also Cal. Civ. Code § 2924c(a)(2) (“If the trustor, mortgagor, or other person authorized to cure the default . . . does cure the default, the beneficiary or mortgagee or the agent . . . shall, within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission that rescinds the declaration of default and demand for sale and advises the trustee of the date of reinstatement.”); 5 Miller and Starr § 13:230 (stating the same). This language indicates that there was no valid Notice of Default under the terms of the Deed of Trust at the time Bank of America and later Defendant again began nonjudicial foreclosure proceedings against Plaintiff. Accordingly, Plaintiff has satisfied the first element of demonstrating the illegality of the Trustee's sale.

Plaintiff has also presented sufficient evidence that he was prejudiced or suffered harm. It is clear that Plaintiff was actively seeking a loan modification in the days leading up to the sale. (See Pl.'s Dep. Tr. at 144:12-17; Pl.'s Resp. to Def.'s Special Interrog. No. 1 (“When the loan transferred to Seterus my counsel asked Seterus for a modification application to be sent to me.”); Pl.'s Resp. to Def.'s Special Interrog. Nos. 7-8, 11-12.) Had Plaintiff been properly noticed of the default, a fact finder could reasonably conclude that he would have continued taking steps to secure a loan modification or taken other means to “save [the] equit[y] in [his] home.” Magnus v. Morrison, 93 Cal.App. 2d 1, 3 (1949).

Finally, the Court concludes that Plaintiff is excused from the tender rule as a matter of law. “An allegation of tender of the indebtedness is necessary when the person seeking to set aside the foreclosure sale asserts the sale is voidable due to irregularities in the sale or notice procedure.” West v. JPMorgan Chase Bank, N.A., 214 Cal.App.4th 780, 801-02, (2013) (citations omitted); see also Karlsen v. Am. Sav. and Loan Ass'n, 15 Cal.App.3d 112, 117 (1971) (“A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.” (citations omitted)). This “tender rule” prevents “a court from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established his ability to purchase the property.” Magdaleno v. Indymac Bancorp, Inc., 853 F.Supp.2d 983, 991 (E.D. Cal. 2011) (citation omitted)). An exception to the tender requirement exists where the sale is void, however. Glasksi v. Bank of America, 218 Cal.App.4th 1079, 1100 (2013); see also 5 Miller and Starr § 13:256. Under California law, a sale is not rendered void merely because of minor or technical defects. Knapp v. Doherty, 123 Cal.App.4th 76, 95-99 (2004). “A sale is rendered void, though, when the defects are substantial, such as when there has been a failure to give notice of sale to the trustor or to specify the correct default in the notice of default.” Ram v. OneWestBank, FSB, 234 Cal.App.4th 1, 19 (2015). That is the case here. Thus, Plaintiff's failure to tender the amount of indebtedness is excused.

Further supporting finding the sale void and not merely voidable is that neither the statutory presumption nor the conclusive common law presumption of finality in favor of the foreclosure sale apply in this case. Typically, “[i]f the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser.” Biancalana v. T.D. Serv. Co., 56 Cal.4th 807, 814 (2013) (citation omitted). Crucially, however, “the conclusive presumption [in favor of a nonjudicial foreclosure sale to a bona fide purchaser] does not apply until a trustee's deed is delivered. Thus, if there is a defect in the procedure which is discovered after the bid is accepted, but prior to the delivery of the trustee's deed, the trustee may abort a sale to a bona fide purchaser, return the purchase price and restart the foreclosure process.” Moeller v. Lien, 25 Cal.App.4th 822, 832 (1994) (citations omitted).

Bank of America and Fannie Mae purchased the Property at the June 15, 2015 foreclosure sale, not as a bona fide third-party purchaser, but as the beneficiary under the Note. (See TAC Ex. H (ECF No. 49-7) (providing a copy of the 11/17/2014 Assignment of Deed of Trust to Fannie Mae by Bank of America as “Attorney in Fact”); Def.'s RJN Ex. 14 at 45 (providing the same).) Therefore, the presumption in favor of finality for a bona fide purchaser does not apply. See Little v. Cfs Serv. Corp., 188 Cal.App.3d 1354, 1359 (1987) (explaining how a sale is more easily overcome and set aside where the property is not purchased by a bona fide third-party to the note but the beneficiary to the note instead); also 5 Miller and Starr § 13:255 (“The statutory presumption . . . only operates in favor of a bona fide purchaser and is not applicable when the property is purchased by the beneficiary at the foreclosure sale.”).

Finally, by statute, the Trustee's Deed Upon Sale became retroactively final as of 8:00 AM on Monday June 15, 2015. See Cal. Civ. Code § 2924h(c) (“For the purposes of this subdivision, the trustee's sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date if the trustee's deed is recorded within 21 calendar days after the sale . . . ."). However, the deed was not conclusively final on June 15, 2015; it was not recorded until Friday, June 26, 2015. (See TAC Ex. H; Def.'s RJN Ex. 10.) See also Moeller, 25 Cal.App.4th at 832. Plaintiff's counsel tried communicating with Defendant's in-house counsel and other attorneys on Wednesday, June 23, 2015, and Thursday, June 25, 2015, trying to inform them of Plaintiff's concerns with various charges and the propriety of the foreclosure process. (See Pl.'s Opp'n at 12 (“Defendants sold the home based on an amount that was not valid and Plaintiff did not owe.”); Pl.'s Resp. to Def.'s Special Interrog. Nos. 2, 12-13, 19, 25.; Pl.'s Opp'n Ex. 2.) Despite these communications, Fannie Mae recorded its deed upon sale on Friday, June 26, 2015. Therefore, Plaintiff provides evidence showing that it notified relevant parties of procedural issues with the foreclosure sale prior to the recording of the deed, thus providing evidence to overcome the conclusive presumption of finality.

Accordingly, Defendant's Motion for Summary Judgment regarding the thirteenth cause of action for wrongful foreclosure is DENIED.

CONCLUSION

For the reasons stated above, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment. Specifically, the Court:

1. DENIES Defendant's Motion for Summary Judgment on Plaintiff's claims under the California Homeowner Bill of Rights as to his first cause of action under California Civil Code section 2923.7 and his second cause of action under California Civil Code section 2924.10, but GRANTS Defendant's Motion for Summary Judgment on Plaintiff's third cause of action for liability under California Civil Code section 2924;

2. GRANTS Defendant's Motion for Summary Judgment on Plaintiff's sixth claim for negligence;

3. DENIES Defendant's Motion for Summary Judgment on Plaintiff's seventh claim under California's unfair competition law;

4. DENIES Defendant's Motion for Summary Judgment on Plaintiff's eleventh claim for intentional infliction of emotional distress;

5. GRANTS Defendant's Motion for Summary Judgment on Plaintiff's twelfth claim for negligent infliction of emotional distress; and

6. DENIES Defendant's Motion for Summary Judgment on Plaintiff's thirteenth claim for wrongful foreclosure.

IT IS SO ORDERED.