Filed 11/25/19 Jordan-Macias v. Onewest Bank, FSB CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

LOREE JORDAN-MACIAS,

Plaintiff and Appellant,

v.

ONEWEST BANK, FSB,

Defendant and Respondent.

H043766

(Santa Clara County

Super. Ct. No. 2013-1-CV-244905)

Plaintiff and appellant Loree Jordan-Macias (Jordan) appeals from a March 2016 judgment entered after the trial court granted summary judgment to defendant and respondent OneWest Bank, FSB (bank) in her negligence action. In that action, Jordan alleged that bank breached its duty of care in evaluating her loan modification applications by failing to timely process them, by losing documents she submitted, and by incorrectly calculating her eligible income. Jordan contends that the trial court erred in granting bank summary judgment because she asserts bank did owe her a duty of care. Bank responds that, even assuming it owed Jordan a duty, there is no triable issue of material fact that it breached that duty, and we should affirm the judgment on that basis. For the reasons explained below, we agree with bank and affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

In 2004, Jordan obtained a refinance loan from bank for real property located in Campbell, California. She stopped making her monthly payments in 2009, and a first notice of default was recorded in June 2009.

In 2009, bank began sending Jordan letters explaining her options for avoiding foreclosure. Starting in February 2010 and over the next several years, Jordan submitted to bank a number of applications for a loan modification. Bank denied her applications on the grounds that they were incomplete, and, in later review periods, that Jordan lacked the requisite monthly income. In 2014 and 2015, bank offered Jordan a loan modification, which she did not accept because she believed the monthly payment she would have had to make under the terms of the modified loan was too high. Foreclosure proceedings have been stayed since 2015.

In April 2013, Jordan initiated a lawsuit against bank. In October 2014, following rounds of demurrer and motion practice, Jordan filed her operative complaint, the Third Amended Complaint (complaint), alleging a cause of action for negligence. The trial court denied bank’s demurrer, and bank filed an answer.

In November 2015, bank filed a motion for summary judgment, or alternatively, summary adjudication. Bank’s motion addressed two elements of Jordan’s negligence action, duty and breach. Bank argued that the undisputed facts showed that bank did not owe a duty of care to Jordan in the context of the loan modification negotiations and, even assuming it did have such a duty, bank did not breach that duty. Bank relied primarily on the authority of Lueras v. BAC Home Loans Servicing LP (2013) 221 Cal.App.4th 49 (Lueras) to argue it did not owe her a duty of care.

Regarding the element of breach, bank argued there was no factual dispute that bank reasonably and properly processed Jordan’s multiple requests for a loan modification. Bank submitted the attorney declaration of Kimberly Paese, which attached several exhibits, including Jordan’s verified discovery responses and the declaration of the current servicer of Jordan’s loan, Ocwen Loan Servicing LLC (Ocwen Declaration). The Ocwen Declaration, discussed further below, contained numerous exhibits, including written communications from bank and from Jordan relating to Jordan’s applications for a loan modification.

In January 2016, Jordan filed an opposition to bank’s motion for summary judgment. She submitted her own declaration (the Jordan Declaration) describing her loan modification applications and bank’s responses. Jordan also filed objections to bank’s evidence. Bank filed a reply brief and responses to Jordan’s evidentiary objections, as well as its own evidentiary objections to the Jordan Declaration. In addition, bank filed a reply to Jordan’s response to bank’s separate statement of undisputed material facts.

The trial court issued a tentative ruling granting bank’s motion for summary judgment and finding that bank did not owe Jordan a duty of care. Shortly thereafter, on January 28, 2016, the trial court heard argument from both parties and took the matter under submission. Approximately one month later, on February 29, 2016, the trial court issued a written order adopting its tentative ruling and concluding that bank was entitled to summary judgment. Citing to various authorities and finding the Lueras decision “more persuasive,” the trial court determined bank did not have any common law duty of care in its reviews of Jordan’s applications for a loan modification. Having concluded that Jordan could not satisfy the duty element of her negligence claim, the trial court did not reach the separate question of breach. The trial court also granted bank’s request for judicial notice but did not rule on any of the parties’ evidentiary objections. The trial court entered judgment in March 2016, and Jordan timely appealed.

II. DISCUSSION

Jordan contends we should reverse the judgment, arguing primarily the trial court erred in concluding bank did not owe her a duty of care in its consideration of her applications for loan modification. Bank counters that, even assuming the duty element is satisfied, we must still affirm the judgment because bank produced sufficient evidence that it had not breached its duty of care, and Jordan did not raise any triable issue of fact as to breach. Bank also contends that Jordan failed to adequately brief the issue of breach on appeal, and she has thereby forfeited any argument on this issue. Jordan disputes that forfeiture applies and asserts that triable issues of fact exist as to breach, primarily on the ground that bank incorrectly asserted she had not submitted “complete” loan applications and bank improperly determined her income was insufficient to secure a loan modification.

For the reasons explained below, we conclude bank produced sufficient evidence that it did not breach its duty of care, and Jordan did not present admissible evidence from which a reasonable factfinder could decide that bank breached its duty of care. We therefore affirm the judgment.

A. Standard of Review
B.
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “Whether the trial court erred by granting [bank’s] motion for summary judgment is a question of law we review de novo.” (Samara v. Matar (2018) 5 Cal.5th 322, 338.) “In performing our independent review of a defendant’s summary judgment motion, ‘we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. . . .’ [Citation.] A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, at p. 850.) If a defendant’s moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar at p. 850.)” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 944–945 (Jones).)

“In determining whether the parties have met their respective burdens, we must ‘ “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.’ ” (Jones, supra, 230 Cal.App.4th at p. 945.) “A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) “ ‘The plaintiff . . . may not rely upon the mere allegations or denials’ of his ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ (Code Civ. Proc., § 437c, subd. (o)(2).)” (Aguilar, supra, 25 Cal.4th at p. 849.)

With these principles in mind, we turn to Jordan’s cause of action for negligence. “A plaintiff in any negligence suit must demonstrate a ‘ “legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the resulting injury.” ’ ” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) We begin with the first element of duty, which the trial court determined was dispositive of Jordan’s claim.

C. Duty
D.
The trial court entered judgment in favor of bank on Jordan’s negligence claim on the basis that bank did not owe Jordan any legal duty of care in its reviews of her applications for a loan modification. Approximately one month after the trial court entered judgment, this court issued Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 (Daniels). In Daniels, this court concluded that a bank owes borrowers “a duty of care with respect to the loan modification process.” (Id. at p. 1183.) Based on the ruling in Daniels, bank concedes here that the issue of duty is settled in Jordan’s favor for purposes of summary judgment. Bank does not argue we should reconsider the holding in Daniels but instead contends we should affirm the judgment because Jordan cannot establish breach, another necessary element of a negligence claim.

We acknowledge that courts in California (as well as federal courts applying California law) remain divided on whether a lender owes a duty of care to a borrower in the loan modification review process, and the California Supreme Court has not yet ruled on this issue. (See, e.g., Sheen v. Wells Fargo Bank, N.A. (2019) 38 Cal.App.5th 346, 358, review granted Nov. 13, 2019, S258019 [discussing split of authority].) Nevertheless, we do not here revisit the ruling in Daniels because we conclude that Daniels is consistent with the California Supreme Court’s general discussion of legal duties in its recent decision in Southern California Gas Leak Cases (2019) 7 Cal.5th 391.

In Southern California Gas Leak Cases, the Supreme Court reviewed a number of prior tort decisions in which it had found a duty of care for cases involving economic loss, summarizing them generally as cases in which “purely economic losses flow . . . from a financial transaction meant to benefit the plaintiff (and which is later botched by the defendant).” (Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 403.) Although the court in Southern California Gas Leak Cases did not consider the question of a duty of care in the context of an application for a loan modification, the rule that this court announced in Daniels is consistent with general principles of duty summarized by the California Supreme Court. We therefore assume that bank owed Jordan a duty of due care in its consideration of her loan modification applications. We now turn to the element of breach.

C. Breach

Before examining the evidence of breach, we first consider the adequacy of the parties’ briefing on this issue both on appeal and in the trial court. In her opening brief in this court, Jordan argued that the trial court erred in its ruling that bank did not owe her a duty of care, but she did not address the evidence of breach. Bank contends that Jordan has therefore forfeited any contention that she presented sufficient evidence of breach to warrant reversal. In her reply brief, Jordan argues that there are triable issues of material fact as to breach, and she discusses her evidence relating to that element of her negligence claim.

For its part, bank argues that we should affirm the trial court because bank successfully negated the separate element of breach and therefore was entitled on that ground to summary judgment of Jordan’s negligence action. Bank maintains, and Jordan does not contest, that both parties fully briefed the issue of breach in the trial court. Jordan argues that her reference in her opening brief on appeal to the duty element of negligence and her copying of certain facts from the Jordan Declaration suffice to preclude forfeiture of her arguments as to breach.

We agree with bank that we have the authority to find forfeiture based on Jordan’s failure in her opening brief to provide authority and argument on breach. (Cal. Rules of Court, rule 8.204(a)(1)(B); see also Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125–126.) However, we decline to deem Jordan’s argument forfeited. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Both parties briefed the question of breach in the trial court, and bank has fully argued the issue in its appellate briefing. Indeed, bank urges us to affirm the trial court’s judgment on this basis. Under these circumstances, bank suffered no prejudice from Jordan’s failure to develop her argument in her opening brief, and Jordan likewise argued her evidence as to breach in her reply brief. We turn now to the merits of the parties’ arguments.

Bank argues that we should affirm the judgment because the undisputed evidence shows bank did not breach its duty of care as to each of Jordan’s six loan modification applications and properly denied them either because Jordan failed to complete the application or failed to document an income sufficient to qualify for a modification. In considering this argument, we “apply the same three-step analysis as the trial court: first we ‘identify the issues framed by the pleadings;’ next we ‘determine whether the moving party’s showing has satisfied his burden of proof and justifies a judgment in movant’s favor;’ and finally we ‘determine whether the opposition demonstrates the existence of a triable issue of material fact.’ [Citations.] In doing so, we liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1449.)

1. Jordan’s Complaint

Jordan’s complaint alleged that, starting in 2009, Jordan began contacting bank “in an attempt to obtain a loan modification or some other loan workout agreement.” Jordan further alleged that bank employees told her “[f]rom 2009–2014” that bank “was working on a loan modification application on behalf of [Jordan] and that [Jordan] would receive a loan modification.”

Jordan’s negligence cause of action in her complaint alleged that bank breached its duty to Jordan in the loan modification process by “losing documents that were provided by [Jordan]; failing to contact [Jordan] in a timely fashion regarding the status of the loan modification application; failing to timely evaluate the loan modification application then after 90 days or so had passed since [Jordan] provided documents [bank] would claim that the documents were stale and/or out-dated and required [Jordan] to re-submit ‘current’ documents; incorrectly inputting data related to [Jordan’s] income and expenses; incorrectly calculating the amount of any affordable payment for [Jordan]; continuously transferring [Jordan] to a different customer service representative who would claim to know little about the application or why it had not yet been approved or denied; and by employing persons with little or no experience to handle loan modifications.”

2. Bank’s Showing

As the party moving for summary judgment, bank bore the initial burden to show that Jordan could not establish the element of breach to support a negligence cause of action. (Jones, supra, 230 Cal.App.4th at p. 945.) Bank’s motion asserted that bank did not breach its duty in reviewing Jordan’s multiple loan modification applications, consisting of six reviews between 2009 and 2012, because the undisputed facts showed bank “did all it reasonably could do to try [to] approve Jordan for a modification” during that three-year period.

In support, bank submitted the attorney declaration of Kimberly Paese, which attached several exhibits, including Jordan’s verified discovery responses in which Jordan admitted that she stopped making payments on the loan in 2009, and bank did not instruct her to stop making the payments. Bank further submitted (as an attachment to the Paese declaration) the declaration of Ocwen Loan Servicing LLC (Ocwen), the current servicer of Jordan’s loan. The Ocwen Declaration was executed by Katherine Ortwerth, who declared she was previously employed by respondent (OneWest Bank, FSB), now worked as a loan analyst for Ocwen, and was familiar with the business records related to Jordan’s loan.

The Ocwen Declaration attached numerous exhibits, including written communications between bank and Jordan. Starting in early 2009, bank sent Jordan multiple letters explaining her options for avoiding foreclosure and noting that she would need to complete a “financial packet” for consideration that included “documentation” of her income. In May 2009, bank sent Jordan a letter explaining that a borrower must submit documentation of his or her income. The letter stated “[T]his document should include: [¶] For each borrower who is a salaried employee: [¶] Copy of the most recent filed federal tax return with all schedules; and [¶] Copy of the two most recent pay stubs. [¶] For each borrower who is self-employed: [¶] Copy of the most recent filed federal tax return with all schedules; and [¶] Copy of the most recent quarterly or year-to-date profit/loss statement. [¶] . . . [¶] For each borrower who has rental income: [¶] Copies of most recent two years filed federal tax returns with all schedules, including Schedule E—Supplement Income and Loss.” The May 2009 letter also stated that the borrower must complete and sign “the IRS Form 4506-T.” A June 2009 letter from bank to Jordan explained that the documentation should include a copy of her most recent filed federal tax return and a “[c]opy of the two most recent pay stubs.” Jordan did not submit a loan modification application in 2009.

In early 2010, Jordan affirmatively began seeking a loan modification and bank reviewed materials she submitted. We discuss the evidence submitted by bank according to the undisputed dates of the review periods at issue.

a. First Review Period: February 2010 to October 18, 2010

In February 2010, Jordan advised bank she had authorized an entity called “Bobby Embry d.b.a. California Land Trust (‘Embry’)” to act on her behalf, and Embry submitted an application for a loan modification for Jordan. Bank determined that Jordan’s information was “incomplete” as she had not submitted her two most recent paystubs and had only provided a copy of a paycheck from Black and White Luxury Transport LLC. In March 2010, bank sent Jordan a letter requesting she send copies of her two most recent paystubs. Bank also explained to Embry in multiple phone conversations in April 2010 the documents it needed to complete Jordan’s application materials. At some point in May 2010, bank received documents from Embry but this information, too, “was incomplete.” Bank informed Embry that the copies of the “paychecks” from Black and White Luxury Transport LLC were “unacceptable” as it required “paystubs with current gross income, year-to-date gross income or[,] alternatively, a profit and loss statement for the latest quarter with business income and expenses.” Bank sent a letter on May 21, 2010, explaining those deficiencies. Following another telephone call with Embry during which bank explained why the copies of the paychecks were unacceptable to verify Jordan’s income, bank received a letter from Black and White Luxury Transport LLC. That letter, dated June 5, 2010, stated that Jordan was then-employed as a sales and marketing contractor and received a “straight salary of $3,600 per month paid bi-monthly at $1,800.00 each pay period.”

A few weeks later, on July 6, 2010, bank sent Jordan a letter explaining the Home Affordable Modification Program (HAMP) and included an application packet. The letter explained that borrowers must submit the following four items to be considered for HAMP: request for modification and hardship affidavit form; a “completed and signed” IRS Form 4506-T or 4506T-EZ, “[s]upporting income documentation required for each declared income source;” and the “[m]ost recent two months bank statements for all borrowers.”

On October 18, 2010, bank advised Jordan that her application was denied because she had failed to timely provide a complete application. Four days later, on October 22, bank sent Jordan a new blank application via express mail.

b. Second Review Period: November 2010 to January 11, 2011

In November 2010, bank received “documents” from Jordan but bank concluded the “information was incomplete.” Shortly thereafter, bank sent Jordan a letter explaining the documents needed, described as an “IRS Form 4506-T” and a “Request for Modification and Affidavit.” The letter also indicated that it had rejected Jordan’s financial information. Bank detailed that it did not receive copies of her most recent paystubs, and the profit and loss statement Jordan had submitted was not itemized. The November 15 letter from bank stated “[t]o continue to be considered for HAMP, please submit any rejected or missing documents by 11/29/2010.” The letter sent a similar letter to Jordan on December 2, 2010, stating that any rejected or missing documents must be submitted by December 16, 2010.

Around December 9, 2010, bank received a letter from Jordan explaining her employment status, in which she stated she had been hired for “Social Vocational Services” in Santa Clara County for part-time work starting January 1, 2011, and requested an extension for her application (currently due December 13, 2010) in order to submit “the HAMP package with current and updated financials, paystubs etc.” On January 11, 2011, bank advised Jordan her request for a modification was denied because she had failed to timely provide a complete application package and “all financial documentation required.”

c. Third Review Period: January 2011 to June 14, 2011

On January 25, 2011, bank sent Jordan a letter explaining what documents were required. On or about February 21, 2011, bank received documents from Neighborhood Assistance Corporation of America (NACA) submitted on Jordan’s behalf. Three days later, bank sent a letter explaining the deficiencies in Jordan’s submission, including that it had not received copies of her most recent paystubs. Bank sent a similar letter to Jordan on March 14, 2011, stating that Jordan must provide copies of her most recent paystubs by March 28, 2011. Around March 27, 2011, bank received a letter from Jordan. The letter stated, “[h]ere are the paystubs for February as requested.” However, the letter explained that Jordan did not have paystubs for one of her clients because the client had lost Jordan’s paperwork and had not paid her for work she had done. Jordan told bank that she had “resubmitted” the paperwork to that client on March 15. Jordan asserted that she would receive an additional $367.50 per month in “retroactive” income for this client, although Jordan did not yet have the payment or paystubs. Jordan’s letter states, “But here is everything that I have currently.”

Bank continuously communicated with Jordan in April, May, and June 2011 regarding the status of her file and its requests for “missing, rejected and additional documents.” Ultimately, on June 14, 2011, bank advised Jordan by letter that her request for a modification of the loan had been denied. Bank received a complaint letter on June 23 from Jordan’s attorney.

d. Fourth Review Period: October 2011 to February 10, 2012

Following the transmittal of Jordan’s attorney’s complaint letter, bank reached out to Jordan again on July 21, 2011, to explore her options for avoiding foreclosure. On August 26, 2011, Jordan advised bank she intended to reapply for a loan modification. However, Jordan did not contact bank about a loan modification or submit documents until October 25, 2011. Following verbal communication with NACA about the insufficiency of the submitted documents, bank sent a letter on October 27 to Jordan explaining the deficiencies. The letter explained it had received proof of income documentation, but that it was missing bank statements, a Dodd-Frank certification, a “Request for Modification Agreement,” and tax returns. Bank stated it had accepted Jordan’s proof of income. The October 27 letter stated the missing documents must be submitted by November 7, 2011.

Bank sent Jordan a series of further similar letters in November 2011. In early December 2011, bank received “documents” but “this information was incomplete.” Bank sent Jordan further letters explaining the deficiencies, including that it had rejected Jordan’s bank statements and rental agreement, among other documents. Bank received documents including, in December and January 2012, an “incomplete” tax form (IRS Form 4506-T) that contained no address. After advising Jordan it needed the tax form “completely filled out,” bank received another form from Jordan. The form “was not filled out correctly because no box in part 6 [of the form] was checked.” On February 10, 2012, bank denied Jordan’s request for a modification because “she failed to timely provide a complete application package.”

e. Fifth Review Period: March 2012 to August 29, 2012

Despite denying her request for modification, bank continued communicating with Jordan, and, on March 20, 2012, Jordan faxed documents to bank. Jordan also sent a letter, which bank received on March 23, 2012. In the March 23 letter, Jordan wrote to bank “I have been told that my request for modification was denied because of not receiving my 4506-T. I have repeatedly complied with ALL your requests for documents in a timely manner and was recently told that I did not send in my 4506-T after your many requests. [¶] This is incorrect!!! I did fax the 4506-T [at] the end of January directly to you at fax . . . . and also uploaded through the NACA website. I have the transmission verification reports showing that in fact that I did fax them to you. I do have these records in the event that I will have to contact an attorney.”

That same day, on March 23, bank explained to her (on a phone call) that she had not sent a copy of IRS Form 4506-T “with a box in part 6 checked.” Based on its internal servicing notes, bank noted Jordan’s Form 4506-T was rejected “as it seems the borrower is not getting the correct rejection reason and sending the same incomplete form 4506-T over and over again.” On March 31, 2012, bank received another IRS Form 4506-T from Jordan. Bank determined the documents were still insufficient and sent further letters “explaining the missing, rejected and additional documents required to complete her application materials” in April and May 2012.

On May 10, 2012, however, bank advised NACA that bank had submitted Jordan’s loan modification request to “the second-level underwriter for review.” That underwriter determined, in July 2012, that “further information was needed to verify Jordan’s income.” During July and August 2012, bank explained to Jordan (in both writing and phone calls) the “missing, rejected and additional documents required to complete her application materials.” On August 21, 2012, bank received sufficient information for the underwriter to verify her income. Using the financial information Jordan provided, bank determined her monthly eligible income was $3,945.62. Based on this figure, bank denied a loan modification on August 29 and sent her a letter explaining the denial. Bank stated it “was unable to create a modified payment within the HAMP guidelines that was less than 42% of her gross monthly income.”

f. Sixth Review Period: September 2012 to November 28, 2012

Following the denial on August 29, bank advised Jordan in September 2012 that bank could consider a “non-HAMP modification” of the loan if she submitted “updated” documents, because the prior financial information Jordan submitted was “outdated.” On November 5 and 6, 2012, bank received documents but “this information was incomplete.” On November 13, 2012, bank received documents from NACA on Jordan’s behalf, and, on November 28, 2012, bank denied Jordan a modification for a loan because she did not qualify “based on her verified income and expenses.”

Following the denial in late November 2012, bank was advised Jordan had retained an attorney. In May 2014 and May 2015, bank offered Jordan a modification of the loan. Jordan rejected both offers.

As described above, Jordan’s complaint alleged that bank acted negligently in its consideration of Jordan’s loan modification applications submitted between 2009 and 2014. Based on the above evidence, we determine that bank provided evidence that tended to show it had not acted negligently and therefore bank met its “initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) The evidence showed that bank acted diligently in trying to process Jordan’s applications for a loan modification, starting as early as 2009 and extending through 2014. When bank determined the submissions made by Jordan or her agents were deficient because bank could not assess Jordan’s financial condition, the evidence sufficiently supports bank’s position that it adequately communicated orally and in writing to explain those deficiencies. The burden on summary judgment therefore shifted to Jordan to submit opposing evidence demonstrating the existence of a material fact on the issue of breach. (Id. at. p. 850.)

3. Jordan’s Showing

Before turning to Jordan’s declaration submitted in opposition to bank’s motion for summary judgment, we summarize the pertinent principles guiding our review of her declaration, the sole evidence she proffered in support of her opposition. A plaintiff opposing a motion for summary judgment must raise a triable issue of fact. (See AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065 [“Counter-affidavits and declarations need not prove the opposition’s case; they suffice if they disclose the existence of a triable issue”].) While a declaration submitted in opposition to summary judgment should be liberally construed, “[t]his does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. (Code Civ. Proc., § 437c, subd. (d).” (Ibid.) “ ‘An issue of fact can only be created by a conflict of evidence. . . . [A]n issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions” [citation], or mere possibilities.’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.)

We further note that the issue here is breach and that, generally, the element of breach is a question “of fact for the jury’s determination.” (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.) “If the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) “However, where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214.)

With these principles in mind, we turn to the substance of Jordan’s declaration. Jordan’s declaration did not attach or authenticate any exhibits, although, as noted further below, it did reference certain letters Jordan sent to bank, which were included in bank’s evidence. In her declaration, Jordan stated that for the first four of the above loan modification review periods (that is, from February 2010 through February 2012) she did, contrary to bank’s evidence, provide bank with a “complete application and all required documents,” including her tax returns, IRS Form 4506-T, paystubs, bank statements, and rental income she received.

As to the last two review periods (from March 2012 to November 2012) Jordan stated bank miscalculated her monthly income as it was actually “between $500.00 – $800.00 more” than the bank’s calculation of $3,945.62, and that based on this “true” monthly income bank “would have been able to create a modification within the HAMP Guidelines.” In regards to the non-HAMP modification, Jordan also asserted that she had qualified for such a modification because by then her monthly income was $4,800 per month rather than the $4,300 calculated by bank. Regarding her 2014 modification offer, Jordan did not deny rejecting that offer, but stated it was “ridiculous” given it was much larger, which she characterized as “about $5,000.00, plus up-front money” versus her “regular” monthly payment, which had been “$2,784 monthly.”

Bank contends Jordan’s Declaration “standing alone” was insufficient to demonstrate the existence of a triable, material issue of fact. Bank characterizes the declaration as “terse,” “conclusory,” and consisting “almost entirely of legal conclusions or ultimate facts.”

We turn first to bank’s evidentiary objections. In the trial court, bank submitted numerous objections to Jordan’s declaration. Bank argues that certain of those objections, which the trial court did not rule upon, were properly preserved for appeal, and bank has renewed those objections here. (Reid, supra, 50 Cal.4th at pp. 534–535.) In particular, bank’s argument focuses here on the issue that Jordan’s statements that she submitted “a complete application” and “all required documents” are “inadmissible ultimate facts or conclusions.” Bank also asserts that, to the extent certain of the documents were submitted by her agents or other third parties (in particular, Embry and NACA), Jordan lacked personal knowledge of those submissions. (See Evid. Code, § 702, subd. (a) [“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”].)

Turning first to the issue of documents submitted by third parties rather than Jordan herself, Jordan’s declaration generally asserted she was making her declaration based on her own personal knowledge, and that she “started the modification process on my home loan in 2009.” Bank does not dispute that Jordan, as the borrower, has personal knowledge of the loan modification process and of the documents she personally submitted to bank, independent of documents submitted by third parties. Bank’s own evidence includes many of these communications and letters from Jordan. We overrule bank’s objections to the extent the statements in Jordan’s declaration are based on her own knowledge and the documents she submitted. We therefore focus on the statements Jordan makes based on the documents and information she claims to have submitted herself.

Bank also requests we sustain its objections to statements in Jordan’s declaration that constitute “conclusions” and “ultimate facts.” On a motion for summary judgment, a lay witness’s declaration must cite evidentiary facts, not legal conclusions or ultimate facts. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120.) Bank asserts that the statements that she submitted a “complete” application was an issue of an “ultimate fact.” We agree. We similarly disregard Jordan’s conclusory and speculative opinion that her income made her “eligible” for certain HAMP guidelines. We note that Jordan herself concedes that “[l]ikely it’s not enough to create [a] triable issue of fact to just state something to the effect of, my application was complete.” We sustain bank’s objections to and therefore disregard Jordan’s statements that are wholly conclusory, namely her repeated statements that her applications were “complete” and that she provided “all required documents,” her statement that bank’s assertions that the paperwork was incomplete were “not true,” and her statement that her application “was repeatedly rejected for reasons that were not acute [sic].”

We reject Jordan’s argument that, because bank concluded that her application was complete in late 2012 (when the fifth review period started), that fact raises a triable issue as to whether her previous applications were complete. In our view, this fact is probative of bank’s contention that it gave due consideration to each of Jordan’s applications and does not suggest that bank acted negligently. Jordan cites no authority and provides no further explanation of its probative value to her contention of breach, and we therefore do not agree that it raises a triable issue of material fact.

Jordan nevertheless contends that she did not “just baldly assert she submitted a complete application” but also “bolstered it with the statements she submitted all required documents” such as “information regarding 2009 tax returns” or her statement that she sent a letter on March 27, 2011 that “included paystubs.”

We have carefully looked at the admissible statements in Jordan’s declaration and are not persuaded that they raise any triable issue of fact. For example, Jordan declared that she did provide bank with proof of her income and “[p]er my March 27, 2011 letter I included paystubs as [bank] had requested.” However, reviewing the March 27, 2011 letter itself (included in the bank’s evidence), Jordan’s letter states only that she was enclosing some paystubs but was not providing other paystubs related to a client “for services provided by me through In Home Support Services (IHSS)” because “all my paperwork for [her client] had been lost in [IHSS’s] office.”

Therefore, the evidence, including Jordan’s own letter to bank, confirms that bank did not have all of Jordan’s paystubs for the requested time period. Similarly, Jordan’s declaration states that she did provide bank “information regarding 2009 tax returns.” However, we agree with bank that this statement was a “misleading half-truth,” as the bank’s evidence showed that the tax information provided constituted a letter from Jordan’s accountant stating that Jordan had not yet filed her 2009 tax return, had filed for an extension, and had not yet completed or filed her 2009 taxes because of a family accident that had occurred in early June 2010. While the letter from Jordan’s accountant certainly constitutes “information” about her 2009 taxes (i.e., that they had not been filed), it does not demonstrate that bank received any tax returns, let alone any substantive financial information that would permit a reasonable lender to assess her financial standing.

Jordan also points on appeal to a statement in her declaration that bank would “ ‘come up with new documents they required such as the Dodd Frank statement.’ ” Jordan’s complaint did not allege bank breached its duty of care by requesting legally required documentation, and therefore bank’s request for a “Dodd-Frank statement” falls outside her complaint; nor do we believe a reasonable factfinder could find breach on this basis.

Jordan acknowledges that the “lender needs to know what the borrower’s income is to determine if they can afford a modified payment” but asserts that “[t]here is no authority however [that] the lender[’]s requirement can be whatever they say they want as far as documentation however unreasonable it may be to a trier of fact.” We have reviewed the evidence before the trial court of bank’s letters to Jordan and her responses. We see no factual basis for Jordan’s assertion that bank asked for “whatever it wanted.” Instead, bank consistently requested the same documents, including completed and filed tax returns, Jordan’s paystubs, her profit and loss statements, her bank statements, and information about rental income. Bank’s letters to Jordan do not raise a triable issue of fact that bank’s requests were unreasonable. Further, Jordan does not provide any admissible evidence that bank lost the information she sent them, although she does dispute bank’s characterization of her submissions as incomplete. However, for reasons we have explained, Jordan’s assertions that her applications were complete do not constitute admissible evidence.

Jordan also claims she sufficiently raised a triable issue as to her eligible monthly income. With respect to her income related to the HAMP loan modification application (from March 2012 to August 2012), Jordan stated that her “eligible” monthly income was “actually between $500.00 – $800.000 more” than the monthly income bank had calculated (of $3,945.62). However, the HAMP loan modification process requires that the borrower provide income verification documents in order to be considered by the program. (See Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 923 [referencing required income verification documents]; John R. Chiles & Matthew T. Mitchell, HAMP: An Overview of the Program and Recent Litigation Trends (2011) 65 Consumer Fin. L.Q. Rep. 194, 196 [stating a mortgagor must “independently verify his/her income by sending the servicer certain documentation depending upon the source of income. For instance, a wage- and/or salary-earning borrower must provide copies of two recent pay stubs, not more than ninety days old at the time of submission” in order to be evaluated for a HAMP modification].)

Beyond Jordan’s unsupported assertion that her income was “$500.00 – $800.00 more,” she does not explain what that additional income consisted of, whether it was verifiable, or any other information upon which a lender could assess her financial strength based on this additional income. Jordan does not contend that bank could or should have accepted assertions of income for which Jordan did not have documentation. Jordan’s speculation that this additional income (which on its face could be anywhere from $500 to $800) sufficed for a HAMP modification is insufficient for purposes of summary judgment. (See Barisich v. Lewis (1990) 226 Cal.App.3d 12, 22 (Barisich) [holding that opinions or conclusions in declaration were not sufficient to defeat summary judgment, and “[t]he opposing party’s burden is to set forth evidentiary facts which disclose the existence of a triable, factual issue”].)

As to her later application for a non-HAMP modification, Jordan further declared that she sent bank a letter on December 12, 2012, “stating my current income was $4,800.00 monthly, not the $4,3,00 [sic] they incorrectly calculated it to be.” That letter from Jordan (included in bank’s evidence), however, does not make that statement. Rather, Jordan wrote that her “income is actually running closer to $4,800 per month” and that she was working on “getting all my figures together.” Moreover, even if we were to accept her statement that $4,800 “was” her income at the time period, Jordan’s statement that this made her “eligible” for a loan modification is also based on speculation and is not sufficient to defeat summary judgment. (See Barisich, supra, 226 Cal.App.3d at p. 22.)

In sum, Jordan has raised no triable issues of material fact that bank breached its duty of care in its processing of her loan modification requests. We therefore conclude bank has met its burden of persuasion that it is entitled to judgment as a matter of law (Aguilar, supra, 25 Cal.4th at p. 850) and affirm the judgment. (See Pacific Gas & Electric Co. v. Jameson (2017) 16 Cal.App.5th 901, 909–910.)

III. DISPOSITION

The judgment is affirmed. In the interests of justice, each party is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

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DANNER, J.

WE CONCUR:

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GREENWOOD, P.J.

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GROVER, J.

H043766

Jordan-Macias v. Onewest Bank, FSB