Filed 12/17/19 Munir v. Nationstar Mortgage CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

ARKETHA MUNIR,

Plaintiff and Appellant,

v.

NATIONSTAR MORTGAGE LLC,

Defendant and Respondent.

A153609

(San Francisco County

Super. Ct. No. CGC17559754)

Arketha Munir appeals from a judgment entered after the court granted respondent’s motion for judgment on the pleadings without leave to amend. She contends her complaint stated a cause of action. We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

A. Loan and Default

In September 2003, Munir obtained a $799,200 loan (Loan) with respect to real property located at 817–819 Hayes Street in San Francisco (Property). The Loan was secured by a deed of trust (DOT) entitling the lender to accelerate the Loan and sell the Property if Munir did not make principal and interest payments as agreed. The DOT identifies Munir’s address not as the property address, but as an address in “San Leandero [sic], CA 94578.”

Munir defaulted on the Loan. A Notice of Default and Election to Sell Under Deed of Trust was recorded in September 2012, and a Notice of Trustee Sale was recorded in January 2013.

Over three years after her default, Munir allegedly submitted an application for a loan modification to Nationstar, “along with a change of circumstances,” in April 2016. According to Munir, Nationstar “refused to review” her application and denied it.

B. Munir’s Complaint

Based on these allegations, Munir sued Nationstar in June 2017, claiming violation of Civil Code section 2923.6 (part of the Homeowner Bill of Rights (HBOR)), breach of the implied covenant of good faith and fair dealing, and violation of Business and Professions Code section 17200 et seq. (UCL). Nowhere in her complaint, however, did Munir allege that the Property was her personal residence or that any foreclosure sale or activity occurred after the January 2013 recording of the notice of sale.

C. Judgment on the Pleadings

After answering the complaint, Nationstar filed a motion for judgment on the pleadings, contending the complaint failed to state facts sufficient to constitute a cause of action. In support of its motion, Nationstar requested judicial notice of the DOT on the ground it was “judicially noticeable as a public record that is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Citing Evid. Code, § 452, subd. (h); Fontenot v. Wells Fargo Bank, N.A. (2013) 198 Cal.App.4th 256, 266, overruled in part on another ground, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13 (Yvanova).)

Munir filed an opposition. She opposed the request for judicial notice because she “dispute[d] the assertions” in the DOT and its legal effect, without explaining why. She also claimed her complaint stated causes of action because Nationstar, as the Loan’s servicer, had a duty to “address any issues Plaintiff may come across concerning payments of her loan,” including reviewing her loan modification application. She did not identify a single allegation in her complaint.

In reply, Nationstar asserted that Munir could not state a viable claim under Civil Code section 2923.6 because no foreclosure activity occurred after Munir submitted the loan modification application and the Property was not “owner-occupied” as required by statute, Munir had no factual basis for a breach of the implied covenant of good faith and fair dealing, and the UCL claim failed because she did not lose money or property and because her allegations as to the origination of the Loan were time-barred and could not pertain to loan-servicer Nationstar. Nationstar also asked the court to deny leave to amend, because the deficiencies of the complaint could be cured only by amendments that would contradict the verified complaint’s initial allegations.

The court granted Nationstar’s motion and entered judgment accordingly. This appeal followed.

II. DISCUSSION

In our de novo review of an order granting judgment on the pleadings, we accept as true and liberally construe the material factual allegations in the complaint, but disregard mere contentions, deductions, or conclusions of fact or law. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516; Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.) We also consider “matters that may be judicially noticed, including a party’s admissions or concessions which cannot reasonably be controverted.” (Pang, at pp. 989–990.)

A. Waiver

In her opening brief in this appeal, Munir does not support her factual assertions about the contents of her complaint with citations to the record. In her “Statement of Appealability” she provides citations for the location of certain documents in the clerk’s transcript, but the remainder of the brief contains only one citation to the record—“1 CT 161-163”—which is not even in the record on appeal. By failing to provide required record citations, she has waived the arguments in her opening brief. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 502–503.) We nonetheless proceed to the merits to explain why those arguments are so utterly devoid of merit.

B. Merits

Munir contends repeatedly that the court erred in granting a “Motion for Summary Judgment” on her claims. This case involves a motion for judgment on the pleadings (Code Civ. Proc., § 438), not a motion for summary judgment (Code Civ. Proc., § 437c). In any event, her arguments are untenable.

1. HBOR Claim

The first purported cause of action in Munir’s complaint is for violation of “Civil CCP 2923.6.” She alleges that she submitted a complete loan modification application “along with a change in circumstances” in April 2016, but Nationstar “refused to review the loan modification application” and “just outright denied” it.

At the time of Munir’s June 2017 complaint, former Civil Code section 2923.6 prohibited dual tracking—essentially, the practice of pursuing foreclosure while purportedly considering a loan modification application. The statute read: “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. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until” (1) thirty days after the servicer made “a written determination that the borrower is not eligible for a first lien loan modification;” (2) the borrower did not accept an offered modification within fourteen days; or (3) the borrower breached an offered modification after accepting it. (Former Civ. Code, § 2923.6, subd. (c).)

Munir’s complaint fails to allege facts stating a violation of former Civil Code section 2923.6. First, the statute applied only to owner-occupied residential properties—that is, the borrower’s principal residence. (Former Civ. Code, § 2923.6, subd. (j); § 2924.15, subd. (a).) Munir’s complaint does not allege that she was the

owner-occupant of the Property or that it was her principal residence; to the contrary, the DOT lists an address for Munir that is not the Property address. Nationstar made this point in the trial court, and Munir continues to ignore it in her briefs on appeal.

Second, while section 2923.6 forbids a loan servicer from recording a Notice of Default or Notice of Trustee’s Sale or finishing a foreclosure sale while a complete modification application is pending, Munir’s complaint alleges that her modification application was not even submitted until about three years after the Notice of Default and Notice of Trustee Sale were recorded. The complaint does not allege any foreclosure activity after she submitted her application, so no dual-tracking has been alleged. For this reason as well, as a matter of law the complaint shows that there was no violation of former Civil Code section 2923.6.

Finally, while Munir’s complaint makes the conclusory allegation that her loan modification application was “complete”—a predicate of former Civil Code section 2923.6—it does not include any facts to support that conclusion.

2. Implied Covenant of Good Faith and Fair Dealing Claim

The second purported cause of action in Munir’s complaint is for breach of the covenant of good faith and fair dealing. Munir alleges that “at all times there existed” an implied covenant, which Nationstar breached “by failing to review Plaintiff for possible alternatives to a loan modification review.”

Munir fails to allege a cause of action. First, the implied covenant of good faith and fair dealing arises only in a contractual relationship. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 525, overruled in part on another ground, Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) Munir’s complaint does not identify any contract between Munir and Nationstar that might contain an implied covenant relevant to Nationstar’s alleged wrongdoing.

Second, if Munir is relying on the DOT as the requisite contract, in that document Munir granted the beneficiary and its successors and assigns the right to accelerate her debt and sell the Property if she failed to repay the Loan as agreed. The DOT does not require that Munir be offered loss mitigation options; to the contrary, it indicates that no such offer would waive the right to foreclose. Munir does not explain how, under the circumstances of this case, there could be an implied covenant to review Munir “for possible alternatives to a loan modification review.” The implied covenant of good faith cannot be used to vary a contract’s express terms, and a party cannot breach the implied covenant by acting in accord with the terms of the contract. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374–375.)

In her opening brief, Munir argues that Nationstar breached its implied contractual obligations by “denying [her] the benefits of the loan contract.” That is merely a legal conclusion, which she does not tie to the allegations in her complaint. Munir claims defendants induced her to “stop paying her mortgage so that she could get reviewed for a loan modification,” but the allegations of her verified complaint show the contrary, since she alleges that she stopped paying on the Loan before seeking a loan modification. And Munir contends that Nationstar “made the promise of [a] loan modification without intending to modify Plaintiff’s loan” and enforced an unenforceable contract, but these conclusions nowhere appear in her complaint, and she offers no facts to support them.

We also note that Munir mixes issues of tort duty into her discussion of the implied covenant of good faith and fair dealing. She fails, however, to identify any case holding that a loan servicer has a tort duty to review a loan modification application where, as here, the subject property is not owner-occupied and the loan is not subject to HBOR. Moreover, she fails to demonstrate that the complaint adequately alleges the other elements of a negligence claim, such as proximately-caused damages. While she alleges that the failure to review her for a loan modification and purportedly proceeding with the foreclosure process caused damage, the other allegations of her pleading show she was in default before seeking a loan modification and, once she submitted her application, no further foreclosure activity occurred.

3. UCL Claim

Munir’s third purported cause of action is for violation of the UCL. She alleges that Nationstar “engaged in deceptive business practices as defined in the Code section above, by marketing and funding a predatory loan that obligated the Plaintiff to make payments well beyond what the Plaintiff could afford. Plaintiff alleges that Defendant engaged in deceptive business practices by attempting to collect on a debt that was void and unenforceable.” She also alleges that these acts constitute unfair business practices because they purportedly violated a variety of statutes.

Munir fails to state a cause of action. First, she alleges no facts supporting her conclusions that Nationstar—a loan servicer—marketed and funded a predatory loan, or attempted to collect on a debt that was void or unenforceable. Her allegations in this regard are mere contentions and legal conclusions, which we disregard.

Second, Munir provides no legal authority or substantive argument for the proposition that these acts would constitute a violation of the UCL.

Third, a UCL claim must be brought “within four years after the cause of action accrued.” (Bus. & Prof. Code, § 17208.) Munir’s UCL claim in her June 2017 complaint is time-barred to the extent it relates to acts regarding the origination of the Loan in 2003, the September 2012 recording of the Notice of Default, or the January 2013 recording of the Notice of Sale.

Fourth, Munir has no standing to pursue her UCL cause of action unless she “has suffered injury in fact and has lost money or property as a result of” a substantive UCL violation. (Bus. & Prof. Code, § 17204.) A plaintiff must plead such economic loss with particularity, allege facts that sufficiently “establish a loss or deprivation of money or property,” and “show that [the] economic injury was the result of . . . the unfair business practice.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.) Munir fails on all fronts. Although she vaguely alleges that she “struggl[ed] to avoid becoming delinquent on her mortgage” and “suffered consequential damages” of some amount in excess of $100,000, there is no allegation of facts suggesting this loss was due to the denial of her loan modification application. To the contrary, as Munir’s complaint alleges elsewhere, she did not even seek a loan modification until “after falling behind on their mortgage payments” and after the Notice of Default and Notice of Trustee sale were recorded. (See Jenkins, supra, 216 Cal.App.4th at pp. 522–523 [no causation for UCL claim because borrower’s default, rather than subsequent conduct by defendants, caused foreclosure-related damages].)

4. Leave to Amend

A trial court does not abuse its discretion in denying leave to amend unless there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Fontenot, supra, 198 Cal.App.4th at p. 274.) To obtain relief on appeal, the appellant must show how the complaint can be amended and how that amendment will change the pleading’s legal effect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Neither in her briefs in this court nor in the trial court has Munir identified any facts she could plead in good faith to cure the myriad defects of her complaint. In her opening brief in this appeal, she contends “the trial court erred at the very least in finding that Plaintiffs’ [sic] claims in the Complaint could not be further amended to allege facts so as to sustain Defendants’ judgment on the pleadings without leave to amend.” However, she does not state what facts could be added to the pleading to remedy its deficiencies. She fails to demonstrate error in the court’s denial of leave to amend.

C. Conclusion

Munir has not established any error by the trial court, and we will affirm the judgment. In addition, we note that, besides the many deficiencies of Munir’s complaint and the glaring shortcomings of her opening brief in this appeal, Munir’s reply brief merely repeats what was stated in her opening brief, without replying to anything in the respondent’s brief.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

Munir v. Nationstar Mortgage / A15360