Case Number: EC060889 Hearing Date: January 12, 2018 Dept: NCE

4. Oneunited Bank v. Tayyar

EC060889

Motion of Oneunited Bank for summary judgment or alternatively, summary adjudication:

The court has not considered the untimely and unauthorized supplemental and corrected papers filed by Massoud Tayyar and Cynthia Salinas.

Complaint:

Issue No. 1: As to Oneunited Bank’s complaint, no triable issue exists as to the Bank’s fifth and sixth causes of action because the borrowers admit liability and have no facts to support their affirmative defenses.

Motion is denied. The Requests for Admissions relied upon are no longer deemed admitted. The court granted relief from the deemed admissions on July 31, 2017.

In addition, even if the court were to consider the Requests for Admissions, the motion fails to establish the damages owed, a necessary element to a breach of contract case. There is no evidence showing the interest or late fees purportedly owed.

Cross-Complaint:

Issue No. 2: As to Tayyar and Salinas’ Cross-Complaint, no triable issues exist as to all causes of action because the borrowers admit they have no facts to support their claims.

Motion is denied. The Requests for Admissions relied upon are no longer deemed admitted. The court granted relief from the deemed admissions on July 31, 2017.

Issue No. 3: As to Tayyar and Salinas’ Cross-Complaint, no triable issue exists as to their first, third, fourth and fifth causes of action because the borrowers admit in sworn discovery responses they no longer assert these claims.

Motion is denied as moot as to the first, third and fourth causes of action of the cross-complaint. Dismissal of these causes of action was entered pursuant to a voluntary Request for Dismissal on January 4, 2018.

Motion is denied as to the fifth cause of action for damages for wrongful foreclosure. While the subject discovery responses appear to remove this cause of action from consideration, the overall evidence raises triable issues as to the continued viability of the claim. Such evidence includes the declaration of counsel explaining the responses, as well as the stipulation of the parties following the discovery responses which expressly states “The Confirmation Order did not moot the Second Cause of Action for Breach of Contract or the Fifth Cause of Action for Damages for Wrongful Foreclosure,” as well as evidence submitted which supports a reasonable inference of wrongful foreclosure. [Goodfriend Decl., Ex. 4, § 10; Tayyar Decl., §§ 2-11; Exs. 4, 6.]

Issue No. 4: As to Tayyar and Salinas’ Cross-Complaint, no triable issue exists as to the second cause of action because no material facts are raised to support it.

Motion is denied. The moving papers fail to meet the initial burden of establishing that this cause of action cannot be established. The papers refer to an express allegation that “a Repayment Agreement and/or Forbearance Agreement remained in full force and effect and that the foreclosure proceedings prosecuted by Cross-Defendants are void, voidable, unenforceable or otherwise invalid.” [UMF No. 250.] This is sufficient to allege an agreement to forebear and a breach of such a term by foreclosing. Moreover, the opposition submits evidence supporting a reasonable inference that a written forbearance agreement was in effect at the time of the foreclosure activity. [See Response to UMF No. 250, and evidence cited; Tayyar Decl., §§ 2-21.]

Third Amended Complaint (Consolidated Action):

Issue No. 5: As to Tayyar and Salinas’ Third Amended Complaint, no triable issues exist as to the first cause of action for intentional misrepresentation because the borrowers admit no fraud occurred and they did not sustain any damages.

Issue No. 7: As to Tayyar and Salinas’ Third Amended Complaint, no triable issues exist as to the third, fourth and fifth causes of action for intentional and negligent interference because the borrowers admit no interference occurred and they were not damaged.

Issue No. 8: As to Tayyar and Salinas’ Third Amended Complaint, no triable issues exist as to the sixth cause of action for unfair business practices because the borrowers admit no unfair business practices occurred and they were not damaged.

Issue No. 9: As to Tayyar and Salinas’ Third Amended Complaint, no triable issues exist as to the seventh cause of action for declaratory relief because the borrowers admit they are not entitled to such relief.

Motion is denied. These issues all depend upon the order deeming the Requests for Admission admitted. However, relief from the deemed admissions was granted by the court’s order of July 31, 2017.

Issue No. 6: As to Tayyar and Salinas’ Third Amended Complaint, no triable issues exist as to the second cause of action for negligence because no duty of care exists as a matter of law and the borrowers admit negligence did not occur.

Motion is denied. The Requests for Admissions relied upon are no longer deemed admitted. The court granted relief from the deemed admissions on July 31, 2017.

To the extent the argument is that there is no duty as a matter of law, there is evidence the bank made representations inducing the borrowers to enter into repayment and/or forbearance agreements and that the bank then instructed tenants to withhold rent payments despite the borrowers’ compliance with the agreements, which is sufficient to support a general duty of care on the part of the bank in connection with its transaction with the borrowers. [See UMF Nos. 343, 344.]

Unopposed Request for Judicial Notice in Support of Motion is granted.

Unopposed Request to Take Judicial Notice in Opposition to the Motion is granted.

Objections to the Bank’s Evidence are overruled.

Objections to Declarations of Massoud Tayyar and Mark Goodfriend: Objections 1, 2, 3, and 6 are sustained. Objection No. 5 is sustained only to the phrase “he was unable to reach Richman.” All other objections are overruled.

Requests for sanctions in both the opposition and reply papers are denied.