Case Number: EC065955 Hearing Date: October 19, 2018 Dept: NCE

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Calendar: 3

Case Number: EC 065955

Date: 10/19/18 Trial date: February 25, 2019

Case Name: Cseh, et al. v. Ocwen Loan Servicing, LLC

Relief Requested:

Summary judgment in favor of defendant Ocwen Loan Servicing and against Plaintiffs

Moving Party: Defendant Ocwen Loan Servicing

Responding Party: Plaintiffs Francesca Cseh and Bela Cseh

COURT’S TENTATIVE RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant’s Amended Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues is granted.

Defendant Ocwen Loan Servicing, LLC has established that plaintiffs will be unable to prove one of more of the essential elements of plaintiff’s only remaining cause of action for negligence in the operative complaint, the First Amended Complaint. Defendant has submitted evidence which shows that in response to plaintiffs’ various loan modification applications, Ocwen provided two loan modification proposals, which plaintiffs accepted and then did not fulfill, and as to the remaining applications, responded promptly and provided written explanations for the denial of those applications.

Specifically, defendant submits evidence in the form of a declaration from a senior loan analyst, who sets forth in detail the history of the servicing of the subject loan by Ocwen since the loan was transferred to it in September of 2011, and establishes that on January 4, 2012, Ocwen provided plaintiffs with a Proposed Modification Agreement. [UMF No. 3, Flannigan Decl., para. 6, Ex. B].

Plaintiffs defaulted on that loan modification, and submitted a loan modification application, and in a letter dated September 24, 2013, Ocwen determined it could not offer a modification to plaintiffs. [UMF Nos. 4-6, and evidence cited, Flannigan Decl., para. 7, Ex. C]. Another loan modification package was submitted in March of 2014, and in September of 2014 Ocwen provided a Forebearance Stipulation Agreement, which plaintiffs accepted. [UMF Nos. 7-9, and evidence cited, Flannigan Decl., paras. 8, 9, Ex. E]. Plaintiffs did not complete the terms of this Agreement, and then in April of 2015, plaintiffs submitted documents to Ocwen in support of another loan modification application, and Ocwen sent a letter in May of 2015 stating that it could not offer plaintiffs a loan modification, as the loan had already been modified the maximum number of times allowed by the owner of the loan. [UMF Nos. 10-12, and evidence cited, Flannigan Decl., paras. 10-12, Ex. G]. Plaintiffs submitted documents to support another loan application in October of 2015, to which Ocwen responded in November of 2015, in a letter again stating that it could not offer plaintiffs a loan modification, as the loan had already been modified the maximum number of times allowed by the owner of the loan. [UMF Nos. 13, 14, and evidence cited, Flannigan Decl., para. 11, Ex. G]. Finally, plaintiffs submitted documents to support another loan application in October of 2016, to which Ocwen responded six days later, in a letter again stating that it could not offer plaintiffs a loan modification, as the loan had already been modified the maximum number of times allowed by the owner of the loan. [UMF Nos. 15, 16, and evidence cited, Flannigan Decl., para. 12, Ex. K]. This is sufficient to establish that plaintiffs in these circumstances will be unable to prove the existence of a duty of care in connection with the handling of loan modification application matter, or a breach of such a duty if it did exist. Defendant Ocwen has also established that plaintiffs’ discovery responses include no evidence which would tend to show negligence or monetary damages caused by such negligence. [UMF Nos. 17, 18, and evidence cited]

This is sufficient to shift the burden to plaintiffs to raise triable issues of material fact.

In response, plaintiffs have submitted the declaration of their attorney, who has failed to set forth facts showing the attorney has personal knowledge of any of the matters attested to which occurred to plaintiffs, and who apparently relies entirely on the allegations of an unverified Second Amended Complaint. This is not appropriate or sufficient, as under CCP § 437c (d) supporting or opposing declarations in connection with a motion for summary judgment “shall be made by any person on personal knowledge,” and plaintiffs may not rely on their pleading as evidence. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, n. 7 (“It is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context.”)

Plaintiffs have accordingly failed to raise triable issues of material fact, and summary judgment is appropriate.

Defendant Ocwen Loan Servicing, LLC’s Unopposed Request for Judicial Notice is granted.

Defendant Ocwen Loan Servicing, LLC’s Evidentiary Objections:

Objection to Entire Declaration is overruled.

Objection No. 1 is sustained to the words “filed and” and is otherwise overruled.

Objections Nos. 2-9 are sustained.