Filed 8/27/18 Chidester v. Nationstar Mortgage, LLC CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

NITA CHIDESTER,

Plaintiff and Appellant,

v.

NATIONSTAR MORTGAGE, LLC,

Defendant and Respondent.

G055358

(Super. Ct. No. 30-2016-00859926)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.

Law Office of Ashishkumar Patel and Ashishkumar Patel for Plaintiff and Appellant.

Hall Huguenin, Howard D. Hall and Robert J. Im for Defendant and Respondent.

This case arises out of a residential home foreclosure. Plaintiff Nita Chisdester (plaintiff) defaulted on her home mortgage and sued defendant Nationstar Mortgage (defendant) and Bank of America for promissory estoppel, intentional misrepresentation, negligent misrepresentation, and reformation. Plaintiff appeals from a judgment of dismissal after the trial court granted defendant’s motion for summary judgment. Finding no error, we affirm.

FACTS

In 2006, plaintiff obtained a $912,750 mortgage (loan) from American’s Wholesale Lender (AWL) for a home in Huntington Beach (property). She defaulted on the loan in December 2010. In 2013, AWL assigned the loan to the Bank of New York Mellon, and at some point Bank of America began servicing the loan.

Plaintiff alleged she submitted loan modification documents to Bank of America between 2012 and 2013. Bank of America denied her application for a loan modification.

Defendant began servicing the loan in July 2013 and is the current servicer of the loan. Defendant preapproved plaintiff for a loan modification in August 2013. Plaintiff did not respond to defendant’s offer to modify the loan. The offer expired in October 2013. In March 2016, a notice of default was recorded against the property.

Plaintiff alleged she had roof repairs done at the property in November 2015. The home warranty insurance company issued the check for repairs directly to defendant. Defendant mailed plaintiff a letter with instructions on how she could complete the processing of the claim and obtain the check. Included with the letter were a set of documents that needed to be returned to defendant in order to process plaintiff’s claim. Defendant contended plaintiff did not submit a complete or legible copy of all of the documents required for the disbursement of funds for the roof repairs until February 2017. Defendant issued a check for $16,832 that same month. Plaintiff alleged she submitted the required documents earlier, although she made no mention of the roofing repairs check in her declaration.

Plaintiff initially filed this action against Bank of America and defendant in June 2016, alleging bad faith review of her application for a loan modification. A few months later, she filed a first amended complaint (FAC) alleging four causes of action: (1) promissory estoppel; (2) intentional misrepresentation; (3) negligent misrepresentation; and (4) reformation.

Defendant filed a motion for summary judgment, or alternatively, summary adjudication on all of plaintiff’s claims. The trial court granted defendant’s motion for summary judgment. The court determined there was no triable issue of material fact on the promissory estoppel cause of action because there was no actionable promise. As to the causes of action for intentional and negligent misrepresentation, the court found no triable issue of material fact existed because defendant made no misrepresentation to plaintiff. Finally, as to the reformation cause of action, the court stated there was no triable issue of material fact because reformation of the promissory note and deed of trust could not be sought against defendant.

DISCUSSION

Plaintiff contends the trial court erred by granting summary judgment and dismissing her case against defendant because there were triable issues of material fact as to defendant’s actions relating to its loan modification offer and release of insurance funds for roofing repairs at the property. As we explain in more detail below, we find no triable issues of material fact as to plaintiff’s claims against defendant. Therefore, we affirm the court’s judgment.

On an appeal from a judgment of dismissal following a grant of summary judgment, ‘““[w]e review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

1. Promissory Estoppel Cause of Action

In her first cause of action for promissory estoppel, plaintiff alleged defendant promised to modify her loan and disburse the check for roof repairs on the property, without intending to perform those promises. The trial court determined no triable issue of material fact existed because plaintiff was unable to establish the element of a promise. We agree with the trial court.

“The elements of promissory estoppel are (1) a promise, (2) the promisor should reasonably expect the promise to induce action or forbearance on the part of the promisee or a third person, (3) the promise induces action or forbearance by the promisee or a third person (which we refer to as detrimental reliance), and (4) injustice can be avoided only by enforcement of the promise. [Citations.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803.) “‘“[A] promise is an indispensable element of the doctrine of promissory estoppel. The cases are uniform in holding that this doctrine cannot be invoked and must be held inapplicable in the absence of a showing that a promise had been made upon which the complaining party relied to his prejudice . . . .” [Citation.] The promise must, in addition, be “clear and unambiguous in its terms.” [Citation.]”” (Ibid.) An enforceable promise “‘must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’ [Citations.]” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)

Plaintiff’s FAC recites a lengthy history of seeking a loan modification with Bank of America. Her case against defendant, however, is based upon two discrete issues: (1) defendant’s offer to modify her loan and (2) defendant’s disbursement of the check for roofing repairs on the property. Plaintiff argues defendant’s actions constituted enforceable promises. Specifically, plaintiff alleged she “relied on [d]efendant’s promise of obtaining an equitable loan modification.” She also asserted “[defendant] had promised [p]laintiff to sign and issue the insurance check for the roofing work required on the property. Plaintiff believed and trusted [defendant], and so hired McCormick Roofing to fix the roof. Unfortunately, when the insurance check was issued, [defendant] chose to withhold issuing the check causing [p]laintiff to be liable for the payment to McCormick Roofing. Plaintiff is informed and believes that [defendant] intentionally withheld the check, in breach of its promise, in order to put further pressure on [p]laintiff to vacate the property.”

As to her contention defendant promised to modify her loan, plaintiff concedes she failed to accept defendant’s loan modification offer. Indeed, the undisputed facts showed defendant preapproved plaintiff for a loan modification and sent her an offer in August 2013. Plaintiff did not apply for the loan modification and therefore failed to accept the offer. Thereafter, defendant’s offer expired by its own terms on October 3, 2013. Plaintiff failed to submit any evidence demonstrating how defendant’s expired offer was an actionable promise.

Similarly, as to defendant’s purported promise to disburse the check for roofing repairs, undisputed evidence showed defendant provided plaintiff with specific instructions as to certain forms to complete prior to the disbursement of the check. Indeed, defendant ultimately disbursed the check to plaintiff. Plaintiff contended she submitted the required forms earlier, and argued defendant sent the check late. In support of her claim that she faxed the completed documents earlier, plaintiff cites her daughter’s declaration, which does not aver defendant made any promise in regard to the roofing repairs. Plaintiff’s declaration is devoid of any mention of the alleged issues with the roofing repair check. The record shows defendant promised to disburse a check for roofing repairs, subject to certain prerequisites, and defendant ultimately disbursed the check. So the undisputed facts demonstrated defendant fulfilled any purported promise to reimburse roofing repairs on the property.

In sum, plaintiff submitted no evidence to create a triable issue of material fact as to her promissory estoppel cause of action. Specifically, she was unable to show facts giving rise to any enforceable promise that was breached. Thus, the trial court did not err in determining summary judgment was appropriate on the promissory estoppel cause of action.

2. Intentional and Negligent Misrepresentation Causes of Action

Plaintiff alleged defendant made intentional and negligent misrepresentations regarding defendant’s loan modification offer and the disbursement of the check for roofing repairs on the property. The trial court determined no triable issues of material facts existed because plaintiff was unable to establish the misrepresentation element for either cause of action. Again, we agree.

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage. [Citation.]” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “The elements of a claim for negligent misrepresentation are nearly identical. Only the second element is different, requiring the absence of reasonable grounds for believing the misrepresentation to be true instead of knowledge of its falsity. [Citations.]” (Ibid.)

Like plaintiff’s claim for promissory estoppel, her causes of action for intentional and negligent misrepresentation also fail at the first prong. She pointed to no evidence supporting the existence of the alleged misrepresentations. She did not identify how defendant’s loan modification offer constituted a misrepresentation. Instead, plaintiff merely voiced her dissatisfaction with the terms of the offer. A dissatisfactory offer, without more, does not constitute a misrepresentation of fact.

Likewise, plaintiff submitted no admissible evidence demonstrating defendant’s alleged misrepresentation with regard to the roofing repair check. As discussed above, plaintiff did not dispute defendant sent her instructions and forms to be completed prior to the disbursement of the check. She did not submit evidence demonstrating she complied with those requirements in a timely manner. The evidence showed defendant ultimately disbursed the check. In fact, plaintiff’s own declaration was devoid of any mention of the roofing repair check issue.

The only purported evidence in support of plaintiff’s claim was her daughter’s declaration, which stated, “I am informed and believe that [defendant] lied, claiming they never received the faxes and, therefore, did not issue payment to [the roofing company].” No further information or evidence was provided to support this statement made under information and belief. “Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.” (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124.) Because plaintiff failed to identify defendant’s alleged misrepresentations, let alone demonstrate there remained triable issues of material facts, summary judgment was properly granted as to her negligent and intentional misrepresentation causes of action.

3. Reformation Cause of Action

In her fourth cause of action for reformation, plaintiff claimed “[d]efendants committed a fraud against [p]laintiff in that [d]efendants’ employees and/or agents intentionally misrepresented to [p]laintiff that [d]efendants would only make a loan that [p]laintiff could afford to pay. . . . [¶] Plaintiff alleges that pursuant to Civil Code section 3399, that the loan documents which were executed did not truly express the intentions of [p]laintiff, more particularly that the loan would have a repayment schedule that [p]laintiff could afford.” She sought to reform the underlying promissory note and deed of trust against defendant based on the allegation she was the victim of fraud at the time she signed the loan. The trial court determined there was no triable issue of material fact as to the fourth cause of action because the relief requested could not be sought against defendant. We find no error.

Reformation is proper against those who are parties to or hold an interest in the instrument to be reformed. (Wilson v. Shea (1924) 194 Cal. 653, 658-659.) Under Civil Code section 3399, reformation is prohibited where doing so would “prejudice [the] rights acquired by third persons, in good faith and for value.”

Here, it is undisputed AWL was the original beneficiary under the loan. Defendant is merely the current servicer of the loan. Indeed, plaintiff concedes defendant was not involved in making the loan. Because the undisputed facts showed defendant was not the original lender and only acted as a subsequent servicer, reformation is improper against defendant.

Furthermore, even assuming a reformation cause of action would have been proper against defendant, any such claim was time-barred. Reformation based on fraud, or mistake, is subject to a three-year statute of limitations. (Welsher v. Glickman (1969) 272 Cal.App.2d 134, 140.) At most, reformation of the written instruments based on other grounds is subject to a four-year statute of limitations. (Utica Mutual Insurance Co. v. Monarch Insurance Co. of Ohio (1967) 250 Cal.App.2d 538, 543.) Under either standard, plaintiff’s claim is too late. Plaintiff executed the instruments in 2006. She testified she “read everything that [she] signed” and that she would have been sure to have understood the contents of the writings before signing either. Her reformation cause of action is time-barred. Therefore, plaintiff presented no triable issue of material fact on her cause of action for reformation.

For all these reasons, we conclude the trial court did not err by granting defendant’s motion for summary judgment.

DISPOSITION

The judgment is affirmed. Defendant is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.