2010-00082041-CU-OR
Brenda Bardasian vs. American Brokers Conduit
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
Bell, Charles E.

The motion of Defendant Marix Servicing LLC. (“Marix”) for summary judgment or, in
the alternative, summary adjudication of issues is GRANTED in part and DENIED in
part as follows:

This is a nonjudicial foreclosure case. Marix is the alleged servicer on one of the two
mortgage loans in question. In the operative fifth amended complaint, Plaintiff Brenda
Bardasian (“Bardasian”) has pleaded against Marix three causes of action for Violation
of Business and Professions Code §§ 17200 et seq., Violation of Civil Code § 2924,
and Violation of Civil Code § 2923.5. Marix now moves for summary judgment or, in
the alternative, summary adjudication of the causes of action against it.

The Eighth Cause of Action for Violation of CC § 2923.5

Summary adjudication is DENIED.

By the eighth cause of action, Bardasian seeks to postpone the trustee’s sale until
Marix has complied with CC § 2923.5. That section prevents a mortgage servicer,
among others, from recording a notice of default until the mortgage servicer has
contacted the borrower in default and has completed tasks including exploring the
borrower’s financial options to avoid foreclosure. Bardasian alleges that the notice of
default recorded in September 2010 was recorded without Marix or any other
authorized party having contacted her to explore her options or otherwise having
completed the statutorily enumerated tasks. With its moving papers, Marix has submitted its request for admissions served on
Bardasian on 03/23/12, as well as this court’s order of 09/19/12 deeming the requests
admitted. (Bell Decl., Exhs. 1-2.) Bardasian concedes that the requests were deemed
admitted. (Opp. at 2:14-20.) Among the requests deemed admitted are the following:
Admit that the Notice of Default recorded on September 16, 2010 in the
Sacramento County Recorder’s Office…is a valid and enforceable
instrument.

Admit that the foreclosure on the SUBJECT PROPERTY is legal.

Admit that you have no evidence that the Declaration accompanying the
Notice of Default, recorded on September 16, 2010 in the Sacrament
County Recorder’s Office…is false.

Admit that you were contacted by MARIX to discuss options to avoid
foreclosure and assess YOUR financial situation as it relates to the
SUBJECT PROPERTY.

Admit that YOU were contacted by any of the named Defendants to
discuss options to avoid foreclosure and assess YOUR financial situation
as it relates to the SUBJECT PROPERTY.

(Bell Decl., Exh. 1 [ellipses added].) Based on the requests and the order
deeming them admitted, Marix argues that it is entitled to adjudication of the
eighth cause of action.

Bardasian opposes based on the Third Appellate District’s opinion in this case
issued on December 15, 2011 (Appellate Case No. C068488). (See
Bardasian’s RJN, Exh. B.) The opinion is the Court of Appeal’s response to
Bardasian’s petition for writ review following an order (1) enjoining the trustee’s
sale due to the failure to comply with CC § 2923.5 and (2) ordering Bardasian to
post a bond before the injunction became effective. The Court of Appeal
granted the writ and determined, among other things, that the trial court, the
Honorable David I. Brown presiding, had made a decision on the merits that
September 2010 Notice of Default was invalid due to failure to comply with CC
§ 2923.5. The Court of Appeal was explicit in holding that Judge Brown’s order
was on the merits, not merely a determination that Bardasian was likely to
prevail on the merits at trial. (See Bardasian’s RJN, Exh. B at 14.) Thus,
Bardasian argues that the issue whether the September 2010 Notice of Default
is valid has already been adjudicated and cannot be relitigated. Because the
September 2010 Notice of Default must be valid for Marix to obtain summary
adjudication of the eighth case of action, Bardasian further argues that
summary adjudication must be denied.

Notably, Marix has not filed a reply and has not otherwise explained why
Bardasian is wrong or why the Court of Appeal’s decision is not the law of the
case. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Given the Court of
Appeal’s statement–made before this court deemed Marix’s requests for
admission admitted–that Judge Brown conclusively determined that that the
September 2010 Notice of Default was ineffective due to failure to comply with
CC § 2923.5, the court is not persuaded that any subsequent admissions in this regard entitle Marix to summary adjudication of the eighth cause of action.

The Sixth and Seventh Causes of Action for Violation of Business and Professions
Code §§ 17200 et seq. and Violation of CC § 2924

Summary adjudication is GRANTED.

Marix’s evidence demonstrates the nonexistence of a triable issue of material
fact. Moreover, Bardasian’s memorandum of points and authorities does not
contain any opposition to Marix’s request for summary adjudication of these
causes of action. As a consequence, Marix has persuaded the court that it is
entitled to adjudication as a matter of law.

In reaching this conclusion, the court notes that Bardasian has purported to
dispute certain of the material facts in the moving separate statement as they
relate to the sixth and seventh causes of action. However, the only evidence
that Bardasian has produced to support these disputes is (1) the Court of
Appeal’s writ decision discussed above and (2) a declaration that she filed in
support of the injunction that Judge Brown granted. (See Bardasian’s RJN,
Exhs. A, B.) This evidence relates solely to the eighth cause of action to
postpone/enjoin the trustee’s sale based on violation of CC § 2923.5. Further,
although a violation of CC § 2923.5 supports a postponement cause of action
such as Bardasian’s eighth cause of action, it does not support any other cause
of action. (See Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 214.)
Thus, Bardasian’s successful opposition to summary adjudication of the eighth
cause of action does not translate into success on the remainder of Marix’s
motion.

Objections to Evidence

Because Bardasian did not submit her objections in a separate document and in
the format prescribed by CRC 3.1354(b), the court declines to rule on them.

Judicial Notice

The parties’ requests for judicial notice are GRANTED.

Conclusion

Summary adjudication of the sixth and seventh causes of action is GRANTED.

Summary adjudication of the eighth cause of action is DENIED.

Pursuant to CRC 3.1312, Marix is directed to lodge for the court’s signature a
formal order consistent with this ruling.