18-UDL-00838 EQUITY GROWTH ASSET MANAGEMENT VS. JOSEPHINE A. MOORE, ET AL.

EQUITY GROWTH ASSET MANAGEMENT JOSEPHINE A. MOORE
JAK MARQUEZ JAMES Z. MARGOLIS

PLAINTIFF EQUITY GROWTH ASSET MANAGEMENT’S MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Plaintiff Equity Growth Asset Management’s Motion for Summary Judgment, filed 11-16-18, is GRANTED. Code Civ. Proc. § 437c. The Court has considered Defendant’s 12-4-18 Opposition papers, but has disregarded Defendant’s untimely papers filed 12-10-18, which by Court Order were due 12-7-18. See 12-5-18 Minute Order; CRC 3.1300(d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755.

Per its Notice of Motion, Plaintiff has withdrawn its claim for damages in this unlawful detainer (UD) action and seeks only possession of the premises. The evidence does not create a triable issue of fact as to Plaintiff’s right to possession following the 8-13-18 Trustee’s Sale.

Defendant’s 12-4-18 Amended Answer alleges “Plaintiff waived, changed, or canceled the [3Day] notice to quit.” Plaintiff, however, offers no evidence supporting this defense.

Defendant also argues Plaintiff did not properly serve the 3-Day Notice to Quit, but offers no evidence creating a triable issue as to this defense. The Proof of Service for the 3-Day Notice states that after unsuccessfully attempting personal service, the process server served the 3-Day Notice by posting and mailing, as permitted by Code Civ. Proc. § 1162(a)(3). Defendant’s contention that she never received the Notice in the mail is not sufficient to create a triable issue of fact that precludes summary judgment. Further, Defendant does not dispute the Notice was posted on the premises. The parties’ dispute over Plaintiff’s bona fide purchaser status does not create a triable issue. Under Code Civ. Proc. § 1161a, in a UD case following a foreclosure sale, Plaintiff is only required to demonstrate it purchased the property at a trustee’s sale held in accordance with Civ. Code § 2924, and that the sale was duly perfected. Defendant argues a “procedural irregularity” in that a third-party website (the Multiple Listing Service, or MLS) apparently showed two different dates for the sale (the correct date and an additional date). The fact that Defendant may have seen two different dates on a third-party website is not evidence that Plaintiff failed to comply with Civ. Code § 2924. There is no dispute here that the Notice of Trustee’s Sale identified the correct sale date, and no evidence of any non-compliance with the statutory sales procedure. See 11-16-18 Request for Judicial Notice, Ex. D.

Nor do Defendant’s statements pertaining to her loan modification application create a triable issue of fact regarding the issue of possession. Defendant argues the foreclosing entity(ies) may have violated the Homeowner’s Bill of Rights (HBOR) by not making a decision on her pending loan modification application prior to the sale. True or not, an alleged HBOR violation is not grounds to set aside a foreclosure sale. Civ. Code § 2924.12.

Plaintiff’s 11-16-18 Request for Judicial Notice is GRANTED. Evid. Code § 452(c).

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.