Schmidt v. CitiBank, N.A.

239 Cal. Rptr. 3d 648, 28 Cal. App. 5th 1109
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 7, 2018
DocketD072993
StatusPublished
Cited by33 cases

This text of 239 Cal. Rptr. 3d 648 (Schmidt v. CitiBank, N.A.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schmidt v. CitiBank, N.A., 239 Cal. Rptr. 3d 648, 28 Cal. App. 5th 1109 (Cal. Ct. App. 2018).

Opinion

AARON, J.

*1112I.

INTRODUCTION

Plaintiffs David and Hedda Schmidt appeal from a judgment entered in favor of defendants Citibank, N.A., as Trustee for Structured Asset Mortgage Investments II Trust 2007-AR3 Mortgage Pass Through Certificates Series 2007-AR3, and Select Portfolio Servicing, Inc. (defendants).

The Schmidts filed this action against the defendants, alleging violations of the Homeowners' Bill of Rights (HBOR; Civ. Code, §§ 2923.55, 2923.6 ) and Business and Professions Code section 17200, and seeking to prevent the completion of a trustee's sale of their residence.

The defendants moved for summary judgment and presented evidence of extensive and numerous telephone calls between the Schmidts and Select Portfolio Servicing, Inc., the loan servicer, during which the Schmidts' financial situation was discussed, as were possible options to avoid foreclosure. The trial court granted the defendants' motion for summary judgment and entered judgment in their favor.

On appeal, the Schmidts contend that summary judgment should not have been granted because there remain triable issues of fact to be determined. We disagree and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

In January 2007, the Schmidts obtained a $1,820,000 loan, secured by a residence at 2415 Rue Denise in La Jolla, California (the Property). The *1113Schmidts signed a promissory note and deed of trust securing the note. The deed of trust was assigned to Citibank, N.A., as Trustee for Structured Asset Mortgage Investments II Trust 2007-AR3 Mortgage Pass Through Certificates Series 2007-AR3.1

The Schmidts defaulted on the loan and entered into a loan modification agreement in February 2013 with their loan servicer at the time, JPMorgan Chase Bank. Within *651approximately seven months, the Schmidts defaulted on the loan modification agreement.

In March 2014, Select Portfolio Services, Inc. (SPS) began servicing the Schmidts' loan.

On March 10, 2014, SPS sent the Schmidts a letter with an enclosed document regarding the Servicemembers Civil Relief Act (SCRA), including information regarding SCRA eligibility and protections. Between March 18 and November 22, 2014, SPS employees spoke on the telephone with the Schmidts on numerous occasions about the status of their mortgage. The evidence presented to the trial court on summary judgment demonstrated that the Schmidts and SPS employees discussed a variety of matters, including the Schmidts' financial situation and potential options for avoiding foreclosure. SPS employees also provided the Schmidts with a toll free number for the Department of Housing and Urban Development (HUD), as required by the HBOR, on at least three occasions.

In the meantime, in March 2014, the Schmidts submitted a completed loan modification application to SPS. In July 2014, SPS denied the March 2014 loan modification application. The record demonstrates that the Schmidts did not appeal the denial of the loan modification.

On November 26, 2014, SPS sent the Schmidts a letter indicating that the Schmidts could request certain documents, including a copy of their payment history, a copy of the note, the name of the entity that "holds the loan," as well as any "assignments of mortgage or deed of trust required to demonstrate" the right to foreclose.2

A notice of default regarding the Schmidts' loan was recorded on January 14, 2015. The notice of default stated that the Schmidts had to pay "$84,072.15 as of 1/12/2015" in order to "bring [their] account in good standing." A declaration attached to the recorded notice of default indicated *1114that SPS had contacted the Schmidts, as required by Civil Code section 2923.55, subdivision (b)(2).

On April 28, 2015, a notice of trustee's sale was recorded against the property.

In February 2016, the Schmidts filed another loan modification application, which was not completed until May 2017. This loan modification application was denied on June 7, 2017.

The record demonstrates that the Schmidts have not made any payments on the loan since October 2013. No trustee's sale has taken place, and the total amount owing on the loan stood at $2,298,570.55 as of June 19, 2017.

B. Procedural background

The Schmidts filed their initial complaint in July 2015, and have amended the complaint twice since that time. The current operative complaint is the second amended complaint. The second amended complaint sets forth causes of action for violation of the HBOR ( Civ. Code, §§ 2923.55, 2923.6 ) and Business and Professions Code section 17200.3 The Schmidts sought damages, restitution, and injunctive relief.

After answering the second amended complaint, the defendants filed a motion for summary judgment. The Schmidts opposed the motion. After full briefing and a *652hearing on the matter, the trial court granted the defendants' motion for summary judgment on August 4, 2017. The court entered judgment in favor of the defendants on August 23, 2017.

The Schmidts filed a timely notice of appeal from the notice of entry of judgment.

III.

DISCUSSION

A. Additional background

This appeal involves alleged violations of the HBOR. "The Homeowner Bill of Rights [citations] (HBOR), effective January 1, 2013, was enacted 'to ensure that, as part of the nonjudicial foreclosure process, borrowers are *1115considered for, and have a meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower's mortgage servicer, such as loan modifications or other alternatives to foreclosure.' ( [Civ. Code, ]§ 2923.4, subd. (a).)" ( Valbuena v. Ocwen Loan Servicing , LLC (2015) 237 Cal.App.4th 1267, 1272, 188 Cal.Rptr.3d 668, fn. omitted ( Valbuena ).)

The provisions comprising the HBOR have been relocated to different sections (and at times, returned to the original sections) of the Civil Code, and have been slightly amended since its passage. At the time of the recording of the notice of default in this case, the HBOR required a mortgage servicer to do a number of things before recording a notice of default or moving forward with a trustee's sale of a property.4 For example, the HBOR prohibited a mortgage servicer from recording a notice of default before sending the borrower a letter explaining its right to request various loan documents. (See former Civ. Code, 5 § 2923.55, subds.

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Bluebook (online)
239 Cal. Rptr. 3d 648, 28 Cal. App. 5th 1109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-citibank-na-calctapp5d-2018.