2010-00070476-CU-OR

Kourosh Hamidi vs. Litton Loan Service LP

Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:  Scott, Denetta E.J.

***  If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 14 Undisputed Material
Facts offered by the moving defendants will be addressed at the hearing and the
parties should be prepared to point to specific evidence which is claimed to
show the existence or non-existence of a triable issue of material fact.  ***

Defendants Litton Loan Servicing, LP, et al.’s joint motion for summary judgment or
alternatively, for summary adjudication of the two causes of action (“COA”) alleged in
the Fifth Amended Complaint (“5AC”) is DENIED.  Although defendants’ moving
papers may have satisfied their initial burden of production under Code of Civil
Procedure §437c(p)(2) with respect to both the motion for summary judgment and the
alternative motion for summary adjudication, plaintiffs have met their burden of
showing a triable issue of material fact especially in light of the well established rule
that the evidence offered in opposition be construed liberally while the evidence in
support is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74
Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1350(g), requiring all evidence (including declarations) in excess of 25 pages
be bound in a single volume of evidence with a table of contents.

This action arises out of mortgage loan modification which plaintiffs allegedly obtained
in 2009 after making three monthly trial payments of $1,588 on the first of September,
October and November 2009. (5AC, ¶13 & Ex. A.)  In their complaint plaintiffs contend  that only days after their final trial payment, defendants commenced foreclosure
proceedings without notifying plaintiffs their loan modification was being or had been
denied. (5AC, ¶14.)  The trustee sale occurred in 2010 and plaintiffs allege they never
received any notice of default or notice of sale. (5AC, ¶¶14-16.)  The 5AC asserts two
COA, one for breach of contract and one for breach of the implied covenant of good
faith & fair dealing.  Both COA relate to the written “Loan Workout Plan” attached to
the 5AC as Exhibit A and this document by its own terms requires three monthly trial
payments of $1,588 due on the first of September, October and November 2009.

Defendants PRA now move for summary judgment/adjudication on the grounds that
plaintiffs have no evidence of defendants breaching the contract at issue and without a
breach of this contract, there can be no breach of the implied covenant.  In support of
summary adjudication of the contract COA, defendants offer Undisputed Material Fact
(“UMF”) Nos. 1-7 and in support of summary adjudication of the implied covenant
claim, they cite UMF Nos. 8-14.

In opposition, plaintiffs contend there are triable issues of material fact which preclude
both summary judgment and summary adjudication.  Specifically, the opposition insists
that plaintiffs not only timely made all three monthly trial payments but also timely
submitted all documents requested by defendants.  Thus, plaintiffs insist that their
timely compliance with the trial payment plan entitles them to a permanent loan
modification under West v. JPMorgan Chase Bank.  The opposition maintains that
while the defendants claim in their moving papers plaintiffs failed to timely make trial
payments or timely deliver documents, plaintiffs’ own declarations show the opposite is
true and as a result, there are triable issues of material fact which mandate denial of
this motion.  The opposition characterizes defendants’ UMF Nos. 1-2, 4, 6-9, 11 and
13-14 are disputed but plaintiffs offer no Additional Material Facts (“AMF”) of their own
in an attempt to defeat this motion.

Objections to Evidence

Defendants PRA written objections to evidence are overruled except for objection No.
6 to both plaintiffs’ declarations, which objection is sustained.  The Court notes that the
mere fact plaintiffs’ evidence “contradicts” other evidence does not render the former
inadmissible.

Plaintiffs (timely) filed no written objections to evidence.

Defendants’ Satisfied Initial Burden of Production

Under Code of Civil Procedure §437c(p)(2), a defendant moving for summary
judgment/adjudication must present (admissible) evidence which shows that a plaintiff
cannot establish one or more elements of the cause of action or that there is a
complete defense to that cause of action.  Coupled with plaintiffs’ failure to argue
otherwise, this Court finds that defendants satisfied their initial burden of production
and effectively shifted to plaintiffs the burden to produce evidence sufficient to
establish the existence of at least one triable issue of material fact.

Plaintiffs Carried Burden of Showing Triable Issues of Material Facts

This Court holds that plaintiffs have produced evidence sufficient to show triable issues
of material fact which precludes both summary judgment and summary adjudication,
particularly since the evidence in opposition must be construed liberally while the
supporting evidence is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education
(1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

As noted above, plaintiffs contend that UMF Nos. 1-2, 7-9 and 14 are “disputed” at
least in part.  In UMF Nos. 1 and 8 (which are otherwise identical), defendants assert
that plaintiffs made only two of the three of the monthly payments required in
connection with their first attempted loan modification, as distinguished from the
second attempt which is at the heart of the 5AC.  However, the evidence cited by
plaintiffs consisting of their own declarations along with their bank records plainly
demonstrate that they made payments just prior to the first of the months of June, July
and August 2009.  Thus, the Court finds a triable issue of material fact exists with
respect to UMF Nos. 1 and 8, and defendants cannot now argue that these UMF are
somehow irrelevant because their inclusion of this UMF effectively concedes their
“materiality,” whether intended or not. (See, Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1)
[moving party’s inclusion of facts in its separate statement effectively concedes each
fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to
any one, the motion must be denied].)  For this reason alone, both summary judgment
and summary adjudication must be denied.

UMF 2 essentially states that defendants sent a letter to plaintiffs in July 2009 which
notified the latter that their trial plan was denied because they had not returned the
required documents.  In response, plaintiffs concede the letter said that requested
information had not been received but plaintiffs correctly point out that the subject
letter nowhere indicates their trial payment plan had been denied.  Moreover, plaintiffs’
declarations aver that they had timely submitted all of the information which was
requested.  Construing this evidence liberally as required by California law, plaintiffs
have presented evidence which is sufficient to establish a triable issue of material fact
in connection with UMF 2 as well and for the reasons cited above, defendants cannot
now attempt to disavow this UMF since they voluntarily chose to include it in their
separate statement.  Because UMF 9 is not substantively different from UMF 2, the
Court finds that there are triable issues of material fact relative to both and thus,
summary judgment/adjudication must be denied.

UMF 7 provides in its entirety:

On August 26, 2009, [defendant] Litton’s comment history reflects that the loan
modification was denied because of a lack of borrower response. Litton on that
date also sent correspondence to the Plaintiffs stating that the trial plan had
been denied because Plaintiffs failed to timely submit the required paperwork.
Litton also spoke to the Plaintiffs on that date, advising them that the trial plan
had been denied.

Plaintiffs concede that Litton’s records show the modification had been denied and a
letter was to be generated but plaintiffs dispute the remainder because even the letter
which defendants claim was sent does not actually say plaintiffs’ modification had
been denied.  Additionally, the opposition asserts that defendants’ cited evidence does
not reflect any telephone call with plaintiffs but even if it did, plaintiffs expressly deny
have such a conversation on or about 8/26/2009.  Since this evidence must be
construed liberally, the Court finds it sufficient to establish a triable issue of material
fact with respect to UMF 7 as well and inasmuch as UMF 14 is essentially the same as
UMF 7, there is also a triable dispute relating to UMF 14 too.  Consequently, both
summary judgment and summary adjudication must be denied.

Conclusion

Based on the foregoing, PRA’s motion for summary judgment or alternatively, for
summary adjudication is denied because plaintiffs have met their burden of showing
triable issues of material fact in connection with UMF Nos. 1-2, 7-9 and 14.  This
conclusion is reinforced by the rule requiring evidence in opposition be construed
liberally.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, plaintiffs to
prepare a formal order which conforms to Code of Civil Procedure §437c(g).