Case Number: KC066003 Hearing Date: May 02, 2014 Dept: J

Re: Kyi Tha v. SunTrust Mortgage, Inc., etc., et al. (KC066003)

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Moving Party: Defendant SunTrust Mortgage, Inc.

Respondent: plaintiff Kyi Tha

POS: Moving, Opposing, and Reply OK

In this action alleging a violation of the Homeowner’s bill of Rights (CC § 2923.6), Plaintiff commenced the action on 5/6/13, asserting causes of action for:

1. Violations of CC § 2923.6
2. Violation of Bus & Prof C § 17200
3. Negligence
4. Demand for Accounting

The Final Status Conference is set for 5/5/13. Trial is set for 5/13/14.

Defendant SunTrust Mortgage, Inc. (“SunTrust” or “Defendant”) now moves for an order granting summary judgment or, in the alternative, summary adjudication in favor of SunTrust and against Plaintiff Kyi Tha (“Plaintiff”) of the following issues:

ISSUE ONE: Plaintiff’s first cause of action for the alleged violation of CC § 2923.6 fails as a matter of law because (1) no notice of default or notice of sale was recorded in violation of CC § 2923.6, which was not retroactive; (2) SunTrust is not obligated to review another loan modification from Plaintiff, who did not submit any documentation of any purported material change in his financial circumstances and whose financial circumstances did not materially change; (3) Plaintiff’s claim is neither justiciable nor ripe as Plaintiff did not sustain any injury; and (4) Plaintiff is not a borrower under the Homeowner Bill of Rights.

ISSUE TWO: Plaintiff’s second cause of action for the alleged violation of Bus & Prof C § 17200 et seq. fails as a matter of law and should be dismissed because: (1) Plaintiff cannot state any violation of CC § 2923.6 or any violation of the Homeowner Bill of Rights, and (2) Plaintiff lacks standing because Plaintiff did not sustain any injury.

Plaintiff Kyi Tha opposes the motion on the following grounds: Defendant’s motion fails to provide the statutorily-required 75-day notice period for a motion for summary judgment. The motion was noticed and filed on January 24, 2014 for an April 9, 2014 hearing date. Apparently, Defendants failed to ascertain that the court was hearing motions that date before noticing their MSJ. On January 30, 2014, this court issued an order resetting the hearing date to April 1, 2014. This had the legal effect of the court ordering shorted time for hearing prior to the required 75 days from filing. This order shortening time deprived Plaintiff of the requisite 75-day notice period for Defendant’s motion and only giving Plaintiff 67 days notice. However, the court does not have the authority to continue the motion a few weeks to constitute at least 75-days notice, it must continue the hearing the full 75-days. Robinson v. Woods, 168 Cal.App.4th 1258 (2008). This Court erred when, at the April 1 MSJ hearing, it continued the MSJ hearing to only May 2, 2014.

In addition, the May 2 date is just 11-days before trial (violating the 30 day cut-off), without good cause, and the Court has not presented arguments toward what “good cause” exists.

75-DAY NOTICE PERIOD:

“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (CCP § 437c(a).)

The court may not shorten the 75 day notice period without the parties’ consent. CCP § 437c(a) gives the court power to shorten time on other summary judgment time requirements, but not on the 75–day notice of hearing. (McMahon v. Sup.Ct. (American Equity Ins. Co.) (2003) 106 Cal.App.4th 112, 116; accord Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763.) “We hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” (McMahon, supra, at 117-118). Furthermore, insufficient notice is not cured by a continuance for the missing number of days—notice must begin anew. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268).

In Robinson, defendants served plaintiffs with a motion for summary judgment by mail and noticed it for hearing 76 days after the date of mailing. At the hearing, the trial court continued the hearing for four days in order to provide plaintiffs at least 80 days notice (75 days, plus five days for mailing). At the hearing four days later, the trial court commented that plaintiffs had not filed an opposition on the merits, proceeded to discuss the arguments raised in the motion and granted it. Plaintiff appealed, and the appellate court reversed, concluding that the trial court abused its discretion by continuing the noticed hearing for only four days instead of the 75-day statutorily required period. “[T]he trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew, and 75 days is mandatory where notice is given personally.”

Further, the lack of proper days’ notice may be caused by the moving party or by the court. (See McMahon, involving a court setting a shorter notice period; See Robinson, involving a court’s order setting the hearing an insufficient number of days out).

Here, Defendant timely served and filed this motion on January 24, 2014, and noticed the hearing on the motion for April 9, 2014, which was the soonest available date conforming to the 75-day notice period. Thus, the 75 days notice period was satisfied by Defendants here. Thereafter, on January 30, 2014, because the court was dark on April 9, 2014, the court’s staff reset the hearing date for April 1, 2014. This was through no fault of the moving party, who had provided Plaintiff with the requisite statutory notice. Thereafter, the court continued the motion to May 2, 2014, in order to provide Plaintiff the 75-day requirement under CCP § 437c(a).

Plaintiff argues that this Court should follow the holding in Robinson and Urshan, however those cases are distinguishable because they involved conduct by moving parties which did not provide the requisite notice, and not the court. Thus, the court finds that the motion may be heard on May 2, 2014, in compliance with CCP§ 437c(a) and does not require a continuance.
For the same reason discussed above, the court found good cause to allow the motion to be heard within 30 days of the trial date.

SUBSTANTIVE ISSUES:

ISSUE ONE:

“The California Homeowners Bill of Rights [“HBOR”] became effective on January 1, 2013. (Lueras v. BAC Home Loans Service, LP (2013) 221 Cal.App.4th 49, 86, f.4). Further, the HBOR is not retroactive. Civil Code Section 3 expressly provides that “[n]o part of it is retroactive, unless expressly so declared.”

In this case, the second Notice of Default was recorded in August 2010, and the second Notice of Trustee’s Sale was recorded in February 2012 (Request for Judicial Notice (“RJN”), Exs. 6 and 10), before the January 1, 2013, effective date of HBOR. Therefore, Defendants could not violate Civil Code Section 2923.6 as a matter of law.

Civil Code Section 2923.6(g) states, “In order to minimize the risk of borrowers submitting multiple applications for first lien loan modifications for the purpose of delay, the mortgage servicer shall not be obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the requirements of this section, unless there has been a material change in the borrower’s financial circumstances since the date of the borrower’s previous application and that change is documented by the borrower and submitted to the mortgage servicer.”

Here, Plaintiff did not submit any documentation of any purported material change in his financial circumstances. Thus, Defendant SunTrust was not obligated to review another loan modification request from Plaintiff. Therefore, there has been no violation of 2923.6.

It is a well-established and undisputable prerequisite that a controversy must be “ripe” in order to be justiciable by any court with competent jurisdiction. (Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158, 170).

Here, Plaintiff’s property has not been sold at foreclosure; no trustee’s sale is currently pending; Plaintiff currently resides in the subject property; and no new notice of sale has been issued. Thus, Plaintiff has not suffered harm, and the controversy is not ripe for adjudication.

Civil Code Section 2920.5(c)(2) provides that under HOBR, a “borrower shall not include any of the following…(B) An individual who has contracted with an organization, person, or entity whose primary business is advising people who have decided to leave their homes on how to extend the foreclosure process and avoid their contractual obligations to mortgagees or beneficiaries.”

In this case, Plaintiff contracted with third parties Carlos Rice-Perez and Nikki Eckerson to delay the foreclosure process. (Tha Depo, 29:1-5, Ex. A to Yap Decl.). It was the business of Rice-Perez to provide professional services to borrowers and/or their attorneys in their dispute against their lenders for wrongful foreclosures or wrongful evictions. (Rice-Perez Depo. 8:16-25, Ex. C to Yap Decl.). Eckerson regularly assisted Rice-Perez in his business by serving as a notary and researcher. (Eckerson Depo. 8:22-25 and 23:2-5, Ex. B to Yap Decl.). Thus, Plaintiff was not a borrower, and the protections of Civil Code Section 2923.6 did not apply to him. Therefore, Plaintiff’s first cause of action for alleged violation of CC § 2923.6 fails as a matter of law, and summary adjudication of Issue One is granted.

ISSUE TWO:

Business and Professions Code Section 17200 et seq. provides remedies for unfair, unlawful, or fraudulent business practices.

Here, Plaintiff cannot state a claim for unfair, unlawful, or fraudulent business practices because Plaintiff has not established any violation of CC § 2923.6 or any violation of HOBR, as discussed above. Thus, the second cause of action fails.

“Business and Professions Code Section 17204 limits standing in a section 17200 action to certain specified public officials and to ‘any person who has suffered injury in fact and has lost money or property.’” Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1513 citing B&P Code Section 17204).

In this case, Plaintiff did not suffer any harm, as discussed above. Thus, Plaintiff lacks standing and may not pursue a Business and Professions Code Section 17200 et seq. claim. Therefore, the second cause of action fails.

Once a moving party has satisfied the initial burden of proof, the burden “shifts to the opposing party to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.” Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411, 1418.

Here, Plaintiff has failed to oppose the motion on the merits, so he has failed to meet his burden of showing that there exist triable issues of material fact. Therefore, summary adjudication of Issue Two is granted.

The remaining claims have been previously disposed of by way of demurrer. Therefore, the motion for summary judgment is granted. All future dates are vacated.