Wallace v. Nationstar Mortgage LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENISE WALLACE, No. 2:18-cv-02768-JAM-DB 12 Plaintiff, 13 v. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 14 NATIONSTAR MORTGAGE, LLC, MOTION FOR SUMMARY JUDGMENT AND individually and dba MR. GRANTING IN PART AND DENYING IN 15 COOPER, and DOES 1-100, PART DEFENDANTS’ MOTION FOR inclusive, SUMMARY JUDGMENT 16 Defendants. 17

18 Denise Wallace (“Plaintiff”) filed suit against Nationstar 19 Mortgage, LLC, Centex Home Equity, LLC, The Bank of New York 20 Mellon, and The Mortgage Law Firm (“Defendants”) for breach of 21 contract, negligent and intentional infliction of emotional 22 distress, and slander of title and credit. See First Am. Compl. 23 (“FAC”), ECF No. 10. The parties filed cross-motions for summary 24 judgment on August 18, 2020, and September 1, 2020, respectively. 25 See Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 51; Defs.’ Mot. 26 Summ. J. (“Defs.’ Mot.”), ECF No. 58. Each side has opposed the 27 other, see Pl.’s Opp’n, ECF No. 60; Defs.’ Opp’n, ECF No. 55, and 28 1 replied, see Pl.’s Reply, ECF No. 60; Defs.’ Reply, ECF No. 61. 2 For the reasons set forth below, the Court GRANTS in part 3 and DENIES in part Plaintiff’s Motion for Summary Judgment and 4 GRANTS in part and DENIES in part Defendants’ Motion for Summary 5 Judgment.1 6 7 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 8 On August 24, 2004, Plaintiff obtained a $330,215.50 loan 9 from Centex Home Equity Company, LLC (“Centex”) that was secured 10 by her home located at 8194 Treecrest Avenue, Fair Oaks, 11 California. Defs.’ Resp. to Pl.’s Undisputed Facts (“Pl.’s SUF”) 12 ¶¶ 1–2, ECF No. 56; Defs.’ Undisputed Facts (“Defs.’ SUF”) ¶ 1, 13 ECF No. 58-2; FAC ¶ 12; Pl.’s Decl. ¶ 2, ECF No. 51-4. 14 Nationstar Mortgage, LLC (“Nationstar”) has serviced the loan 15 since its inception. Pl.’s SUF ¶ 4; Defs.’ SUF ¶ 3. Plaintiff 16 fell behind on her loan payments soon after the loan originated. 17 Defs.’ SUF ¶ 4. As a result, Nationstar offered her a loan 18 modification that was executed on August 27, 2008. Defs.’ SUF 19 ¶¶ 5–6. The 2008 loan modification stated that the unpaid 20 principal balance of the loan was $344,706.29. Defs.’ SUF ¶ 7. 21 Sometime in 2009 and 2010 (exactly when, and for what 22 reason, is disputed), Plaintiff sought another loan modification 23 from Nationstar. Pl.’s SUF ¶ 4; Defs.’ SUF ¶¶ 8–12. On April 24 26, 2010, Nationstar sent Plaintiff a loan modification proposal. 25 Pl.’s SUF ¶ 5; Defs.’ SUF ¶ 13. The 2010 loan modification 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 29, 2020. 1 proposal contained, among other terms, a new unpaid principal 2 balance of $368,907.33 with a two-year fixed interest rate from 3 2010 to 2012. Defs.’ SUF ¶ 14. On April 29, 2010, Plaintiff 4 made a counteroffer to Nationstar’s loan modification proposal by 5 revising it. Pl.’s SUF ¶ 7; Defs.’ SUF ¶ 15. Plaintiff changed 6 several material terms, including changing the unpaid principal 7 balance to $168,907.33 with a fixed interest rate from 2010 8 onward. Defs.’ SUF ¶ 15. 9 Nationstar denies having knowledge of the counteroffer in 10 April 2010. Pl.’s SUF ¶ 7. At the time Nationstar received 11 Plaintiff’s counteroffer, it believed it was merely a copy of its 12 original loan modification proposal. Defs.’ SUF ¶ 16. 13 Accordingly, Nationstar implemented its original 2010 loan 14 modification in its record system, including an unpaid principal 15 of $368,907.33 and a two-year fixed interest rate. Id. At no 16 point in time did Nationstar send Plaintiff a mortgage loan 17 statement with her modified principal balance. Defs.’ SUF ¶ 19. 18 And Nationstar sent Plaintiff monthly mortgage loan statements 19 from 2010 onward. Id. However, Nationstar admits it received an 20 email from Plaintiff on April 30, 2010, asking whether the 21 revised loan modification proposal had been received. Pl.’s SUF 22 ¶ 9. Daniel Gallegos, one of Nationstar’s foreclosure prevention 23 specialists replied to Plaintiff and acknowledged receipt. Id. 24 Plaintiff claims that she made her first payment pursuant to 25 the revised loan modification proposal, which she considered the 26 operative agreement, on June 1, 2010. Pl.’s SUF ¶ 11. 27 Nationstar denied any payment was made pursuant to that revised 28 proposal. Id. On March 5, 2012, Plaintiff received a letter 1 from Nationstar informing her that the interest rate on her loan 2 would change from 3.250% to 7.000% on June 1, 2012. Pl.’s SUF 3 ¶ 14; Defs.’ SUF ¶ 20. This increase was contrary to Plaintiff’s 4 revision of the loan modification proposal but was in line with 5 Nationstar’s 2010 loan modification. See Pl.’s SUF ¶ 14; Defs.’ 6 SUF ¶ 14. Nationstar denies ever accepting payment from 7 Plaintiff pursuant to the revised loan modification proposal. 8 Defs.’ SUF ¶ 27. Any payments it received were pursuant to the 9 terms of the original 2010 loan modification. Id. 10 Plaintiff filed the instant lawsuit in Sacramento County 11 Superior Court on August 28, 2018. See Compl., ECF No. 1-1. 12 Defendants removed the case to federal court on October 15, 2018. 13 See Notice of Removal, ECF No. 1. Plaintiff filed the First 14 Amended Complaint on November 8, 2018. See FAC, ECF No. 10. 15 Plaintiff’s fifth cause of action for declaratory relief was 16 dismissed with prejudice on March 27, 2019. See Order, ECF No. 17 22. Plaintiff now seeks summary judgment on her first cause of 18 action and Defendants’ two counterclaims against her. See 19 generally Pl.’s Mot. Defendants seek summary judgment on all 20 four of Plaintiff’s remaining causes of action against them and 21 their two counterclaims against her. See generally Defs.’ Mot. 22 23 II. OPINION 24 A. Evidentiary Objections 25 Plaintiff raised several objections to Defendants’ evidence 26 in opposition to Defendants’ motion. See Pl.’s Obj. to Def.’s 27 Evid., ECF No. 60-2; see also Pl.’s Resp. to Defs.’ Disputed 28 Facts, ECF No. 60-3. Defendants responded to these objections. 1 See Defs.’ Response to Pl.’s Obj., ECF No. 61-1. The Court has 2 reviewed these evidentiary objections but declines to rule on 3 each individual objection as courts self-police evidentiary 4 issues on motions for summary judgment and a formal ruling is 5 unnecessary to the determination of this motion. See Burch v. 6 Regents of the University of California, 433 F.Supp.2d 1110, 7 1118–1122 (E.D. Cal. 2006) (objections challenging the 8 characterization of the evidence are improper on a motion for 9 summary judgment). 10 B. Judicial Notice 11 Plaintiff requests that the Court take judicial notice of 12 Defendants’ Answer and Affirmative Defenses to her First Amended 13 Complaint and Defendants’ Counterclaims at ECF No. 25. Request 14 for Judicial Notice (“RJC”), ECF No. 51-2. Defendants do not 15 oppose this request. Rule 201 of the Federal Rules of Evidence 16 allows a court to take judicial notice of an adjudicative fact 17 that is “not subject to reasonable dispute,” because it (1) “is 18 generally known within the trial court’s territorial 19 jurisdiction”; or (2) “can be accurately and readily determined 20 from sources whose accuracy cannot reasonably be questioned.” 21 Fed. R. Evid. 201(a)-(b). 22 Thus, a court may take judicial notice of “undisputed 23 matters of public record . . . including documents on file in 24 federal or state courts.” Harris v. County of Orange, 682 F.3d 25 1126, 1132 (9th Cir. 2012). The Court finds Plaintiff’s request 26 to judicially notice a pleading on the docket in the very same 27 action unnecessary. Therefore, Plaintiff’s request for judicial 28 notice is denied. 1 Defendants, for their part, request this court to take 2 judicial notice of the deed of trust executed by plaintiff on 3 August 24, 2004 and plaintiff’s first amended complaint filed in 4 this action. ECF No. 58-5. Defendants’ request for judicial 5 notice as to the first amended complaint is unnecessary and 6 therefore denied. Defendant’s request for judicial notice as to 7 the deed of trust is granted. 8 C. Legal Standard 9 A Court must grant a party’s motion for summary judgment 10 “if the movant shows that there is no genuine dispute as to any 11 material fact and the movant is entitled to a judgment as a 12 matter of law.” Fed. R. Civ. Proc. 56(a). The movant bears the 13 initial burden of “informing the district court of the basis for 14 its motion, and identifying [the documents] which it believes 15 demonstrate the absence of a genuine issue of a material fact.” 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is 17 material if it “might affect the outcome of the suit under the 18 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 19 248 (1986). Once the movant makes this initial showing, the 20 burden rests upon the nonmoving party to “set forth specific 21 facts showing that there is a genuine issue for trial.” Id. An 22 issue of fact is genuine if “the evidence is such that a 23 reasonable jury could return a verdict for the nonmoving party.” 24 Id. 25 D. Analysis 26 1. Breach of Contract 27 Both Plaintiff and Defendants seek summary judgment on 28 Plaintiff’s first cause of action for breach of contract. 1 Plaintiff argues that the operative contract between Plaintiff 2 and Defendants was the 2010 loan modification that was revised 3 by Plaintiff and that Defendants breached that contract by 4 noticing default and attempting to foreclose on Plaintiff’s 5 home. Pl.’s Mot. at 7–9. Defendants argue the statute of 6 limitations for breach of contract in California bars 7 Plaintiff’s claim; the 2010 loan modification revised by 8 Plaintiff was not the operative contract; and the claim is also 9 barred by the statute of frauds. Defs.’ Mot. at 6–13. 10 The statute of limitations for breach of a written contract 11 in California is four years. See Cal. Civ. Proc. Code § 337(1); 12 see also Krieger v. Nick Alexander Imports, Inc., 234 Cal.App.3d 13 205, 220–21 (1991). A cause of action for breach of contract 14 accrues at the time of the breach, and the statute of 15 limitations begins to run at that time regardless of whether any 16 damage is apparent or whether the injured party is aware of his 17 right to sue. Perez-Encinas v. AmerUs Life Ins. Co., 468 18 F.Supp.2d 1127, 1134 (N.D. Cal. 2006) (citations omitted). 19 Plaintiff learned of Defendants’ alleged breach of contract 20 as early as May 11, 2010, when Nationstar sent her first monthly 21 mortgage loan statement. See Loan Statements at 30, Ex. 6 to 22 Nationstar Decl., ECF No. 58-4. The statement sets Plaintiff’s 23 principal loan balance at $368,907.33, not at $168,907.33, as 24 Plaintiff alleges it should have been. Id. Nationstar sent 25 Plaintiff monthly loan statements reflecting the higher 26 principal amount each month for every month after May 2010. 27 Defs.’ SUF ¶ 19. Moreover, Plaintiff acknowledged the alleged 28 breach of contract on June 1, 2012, when she sent a letter to 1 Nationstar disputing that the increased interest rate complied 2 with the terms of the loan modification agreement. See Pl.’s 3 June 1, 2012, Letter at 35, Ex. 8 to Nationstar Decl., ECF No. 4 58-4. Thus, Plaintiff knew of Nationstar’s purported breach as 5 far back as May 11, 2010, and, as a result, the statute of 6 limitations has long since run. 7 Plaintiff not only relies on her June 1, 2012, letter to 8 Nationstar in support of her own motion for summary judgment, 9 see Pl.’s Decl. ¶ 15, ECF No. 51-4; June 1, 2012, Letter, Ex. C 10 to Pl.’s Mot. at 19, ECF No. 51-4, but she does not dispute that 11 the statute of limitations has run in her opposition to 12 Defendants’ motion, see Pl.’s Opp’n at 2–4. Therefore, 13 Plaintiff has conceded this point by silence. See Ardente, Inc. 14 v. Shanley, Case No. 07-CV-4479-MHP, 2010 WL 546485 at *6 (N.D. 15 Cal. 2010) (“Plaintiff fails to respond to this argument and 16 therefore concedes it through silence.”); see also E.D. Cal. 17 L.R. 230(c). Plaintiff failed to bring her claim for breach of 18 contract within the requisite time period and the claim is, 19 therefore, time barred. 20 Accordingly, the Court grants summary judgment in favor of 21 Defendants and against Plaintiff on Plaintiff’s first cause of 22 action for breach of contract. 23 2. Emotional Distress 24 Defendants seek summary judgment on Plaintiff’s second and 25 third causes of action for negligent and intentional infliction 26 of emotional distress. They argue that emotional distress 27 damages are not available; the two-year statute of limitations 28 has run; and Defendants’ conduct does not satisfy the elements 1 of either a negligent or intentional infliction of emotional 2 distress claim. Defs.’ Mot. at 14–20. Negligent infliction of 3 emotional distress “is a form of the tort of negligence, to 4 which the elements of duty, breach of duty, causation and 5 damages apply.” Huggins v. Longs Drugs Store Cal., Inc., 6 6 Cal.4th 124, 129 (1993). A plaintiff must show “serious 7 emotional distress actually and proximately caused by wrongful 8 conduct on the part of a defendant who should have foreseen that 9 the conduct would cause such distress.” Davenport v. Litton 10 Loan Servicing, LP, 725 F.Supp.2d 862, 884 (N.D. Cal. 2010) 11 (citation omitted). 12 In order to plead a claim of intentional infliction of 13 emotional distress, a plaintiff must allege: (1) extreme and 14 outrageous conduct by defendants; (2) intent to cause, or a 15 reckless disregard of the probability of causing, emotional 16 distress; (3) severe emotional suffering; and (4) actual and 17 proximate causation of emotional distress by defendants’ 18 outrageous conduct. Fletcher v. Western Nat’l Life Ins. Co., 10 19 Cal.App.3d 376, 394 (1970). 20 Plaintiff’s emotional distress claims are based solely on 21 Defendants’ allegedly wrongful foreclosure proceedings, stemming 22 from Defendants’ alleged breach of her revised loan modification 23 agreement. See FAC ¶¶ 30–37 (“Defendants . . . owed a duty to 24 exercise due care toward Plaintiff by way of their relationship 25 vis-à-vis the loan and modification thereto.”). Defendants 26 commenced foreclosure proceedings in April 2018. Nationstar 27 Decl. ¶ 36, ECF No. 58-4. However, emotional distress claims 28 are generally not available where the alleged wrongdoing results 1 only in economic injury to the plaintiff, particularly when the 2 economic injury merely arises from a breach of contract. 3 Averbach v. Vnescheconombank, 280 F.Supp.2d 945, 960 (N.D. Cal. 4 2003) (citing Erlich v. Menezes, 21 Cal.4th 543, 555 (1999)) 5 (“No California case has allowed recovery for emotional distress 6 arising solely out of property damage; moreover, a pre-existing 7 contractual relationship, without more, will not support a 8 recovery for mental suffering where the defendant’s tortious 9 conduct has resulted only in economic injury to the 10 plaintiff.”). 11 Thus, even assuming Plaintiff’s revised 2010 loan 12 modification agreement was the operative contract, and that 13 Defendants breached that contract in modifying the interest 14 rates and seeking to foreclose on Plaintiff’s property, 15 Plaintiff cannot maintain an emotional distress claim under 16 California law. Only a claim sounding in contract law is 17 appropriate here. Erlich, 21 Cal.4th at 552 (“Courts will 18 generally enforce the breach of a contractual promise through 19 contract law . . . .”) (internal quotation marks and citation 20 omitted). And, as previously explained, Plaintiff’s breach of 21 contract claim is barred by the statute of limitations. 22 Accordingly, the Court grants summary judgment in favor of 23 Defendants and against Plaintiff on Plaintiff’s second and third 24 causes of action for negligent infliction of emotional distress 25 and intentional infliction of emotional distress. 26 3. Slander of Title and Credit 27 Defendants seek summary judgment on Plaintiff’s fourth 28 cause of action for slander of title and credit. Defendants 1 argue they did not slander Plaintiff’s title because the 2 publication of the foreclosure documents is privileged, there is 3 nothing false about the foreclosure documents, and Plaintiff 4 cannot establish the necessary kind of pecuniary loss. Defs.’ 5 Mot. at 20–21. Defendants also argue Plaintiff’s slander of 6 credit claim fails because it is preempted by the Federal Credit 7 Reporting Act (“FCRA”). Id. at 21. 8 Slander of title is an unprivileged or malicious 9 publication of a false statement that disparages a plaintiff’s 10 title to real property and causes pecuniary damage to the 11 property’s owner. Howard v. Schaniel, 113 Cal.App.3d 256, 262– 12 63 (1980). To establish slander of title, there must be: (1) a 13 publication; (2) which is without privilege or justification and 14 thus with malice, express or implied; (3) is false, either 15 knowingly so or made without regard to its truthfulness; and 16 (4) causes direct and immediate pecuniary loss. Id. at 263–64. 17 However, the recording of a notice of default and trustee 18 sale are privileged acts, upon which no tort claim, other than 19 malicious prosecution, may be based. See Cal. Civ. Code 20 § 2924(d)(1) (“[t]he mailing, publication, and delivery of 21 notices as required by this section” shall constitute privileged 22 communications pursuant to Section 47); see also Kachlon v. 23 Markowitz, 168 Cal.App.4th 316, 333 (2008) (“We hold that 24 section 2924 deems the statutorily required mailing, 25 publication, and delivery of notices in nonjudicial 26 foreclosure, and the performance of statutory nonjudicial 27 foreclosure procedures, to be privileged communications under 28 the qualified common-interest privilege of section 47, 1 subdivision (c)(1).”). 2 In Kachlon, one of the plaintiffs alleged a slander of 3 title claim against the foreclosure and lien services company. 4 168 Cal.App.4th at 329. There, the foreclosure company was 5 substituted in as trustee and was provided with, and relied 6 upon, inaccurate and disputed evidence when it recorded the 7 notice of default and commenced the nonjudicial foreclosure 8 proceedings. Id. at 328–29. The foreclosure company’s 9 liability depended on whether recording the notice of default 10 and its decision not to rescind the notice were wrongful. Id. 11 at 333. The court held that, notwithstanding the foreclosure 12 company’s reliance on inaccurate information, its recording of 13 the notice of default—a notice required by § 2924—was privileged 14 communication under the qualified common-interest privilege of 15 § 47(c)(1). Id. at 343. 16 Here, too, the notice of default and notice of sale were 17 statutorily required by § 2924 and, thus, are privileged under 18 § 47(c)(1). As in Kachlon, even if the Court assumes that 19 Defendants relied on the incorrect loan modification agreement 20 such that notice of default should not have been given, the 21 recording of a notice of default is nonetheless a privileged 22 act, upon which a claim for slander of title cannot be based. 23 Moreover, the evidence fails to show that Defendants acted 24 with malice. “Mere negligence in making a sufficient inquiry 25 into the facts on which the statement was based does not, of 26 itself, relinquish the privilege. Mere inadvertence or 27 forgetfulness, or careless blundering, is no evidence of 28 malice.” Kachlon, 168 Cal.App.4th at 344 (internal quotation 1 marks and citation omitted). To constitute malice, the 2 negligence must be so significant to evidence “a wanton and 3 reckless disregard of the consequences and of the rights and of 4 the feelings of others.” Id. 5 Nationstar can best be described as negligent in failing to 6 recognize that Plaintiff sent it a revised version of its loan 7 modification proposal. No evidence suggests it acted with ill 8 will or with reckless disregard for the truth of the notice of 9 default. Before recording the notice of default, Nationstar had 10 mailed Plaintiff loan statements reflecting the higher principal 11 every month from May 2010 onward. Defs.’ SUF ¶ 19. It was 12 clearly under the impression that its original loan modification 13 agreement was in effect. Its business records confirm as much. 14 See Exs. 7, 10, 11 to Nationstar Decl., ECF No. 58-4. Nothing 15 suggests Nationstar acted with malice. Having reached this 16 conclusion, it is not necessary to address the other elements of 17 the tort as applied to this case. See Howard, 113 Cal.App.3d at 18 265. Defendants are entitled to be relieved of liability for 19 Plaintiff’s slander of title claim. 20 Finally, to the extent Plaintiff’s slander of credit claim 21 is based on credit reporting, it is preempted by the FCRA. See 22 Townsend v. Chase Bank USA N.A., 2009 WL 426393 at *3–4 (C.D. 23 Cal. 2009) (“The FCRA thus preempts all matters regulated by 24 Section 1681s-2(a), which broadly states the various duties of 25 furnishers of credit information to provide accurate information 26 to credit reporting agencies.”). “Federal courts in California 27 have consistently held that the FCRA preempts both statutory and 28 common law claims under state law against furnishers of 1 information for failing to properly investigate and report 2 allegedly erroneous information.” Id. 3 Accordingly, the Court grants summary judgment in favor of 4 Defendants and against Plaintiff on Plaintiff’s fourth cause of 5 action for slander of title and credit. 6 4. Fraud Counterclaim 7 Plaintiff seeks summary judgment on Defendants’ first 8 counterclaim alleging she committed fraud by surreptitiously 9 altering the loan modification agreement. See Answer and 10 Counterclaim ¶¶ 39–44, ECF No. 25. Plaintiff argues Defendants 11 cannot establish fraud because there was no misrepresentation. 12 Pl.’s Mot. at 9–11. “Fraud is an intentional tort, the elements 13 of which are (1) misrepresentation; (2) knowledge of falsity; 14 (3) intent to defraud, i.e., to induce reliance; (4) justifiable 15 reliance; and (5) resulting damage.” Conrad v. Bank of America, 16 45 Cal.App.4th 133, 155 (1996). To establish a fraud claim, all 17 elements of the claim must be plead and proven in full, 18 factually and specifically. Id. 19 The Court agrees with Plaintiff that Defendants have failed 20 to establish misrepresentation. While Plaintiff’s revised loan 21 modification agreement was not covered in red ink, she did fax 22 it over to Nationstar with a coversheet with the subject line, 23 “Revised Loan Modification.” See Revised Loan Modification, Ex. 24 A to Pl.’s Mot., ECF No. 51-4 (emphasis added). That Nationstar 25 failed to notice the subject of the fax, or other alterations to 26 the loan modification indicating it had been revised, does not 27 mean that Plaintiff intentionally concealed her changes to the 28 original loan modification proposal. Absent any evidence to 1 support misrepresentation, Defendants’ fraud counterclaim 2 necessarily fails. Wilhelm v. Pray, Price, Williams & Russell, 3 186 Cal.App.3d 1324, 1332 (1986) (“The absence of any one of 4 these required elements will preclude recovery.”). 5 Accordingly, the Court grants summary judgment in favor of 6 Plaintiff and against Defendants on Defendants’ first 7 counterclaim for fraud. 8 5. Unjust Enrichment Counterclaim 9 Plaintiff also seeks summary judgment on Defendants’ second 10 counterclaim for unjust enrichment. Plaintiff argues that she 11 was not unjustly enriched because she did not receive a benefit 12 that was unfairly obtained at Nationstar’s expense. Pl.’s Mot. 13 at 12–14. Defendants claim Plaintiff was unjustly enriched “by 14 altering the terms of the [loan modification agreement] and not 15 bringing such material alterations to Defendants’ attention in a 16 timely manner, [she] received a benefit at the expense of 17 Defendants.” See Answer and Counterclaim ¶ 46. 18 Under California law, “the elements of unjust enrichment are 19 receipt of a benefit and unjust retention of the benefit at the 20 expense of another.” Berger v. Home Depot USA, Inc., 741 F.3d 21 1061, 1070 (9th Cir. 2014). “This equitable test does not turn 22 merely on the transfer of money or other benefits from one party 23 to another—it requires injustice.” Id. (citing Doe I v. Wal-Mart 24 Stores, Inc., 572 F.3d 677, 684 (9th Cir. 2009). As explained 25 above, Plaintiff did point out that she revised Defendants’ loan 26 modification proposal. Her failure to make her revisions 27 sufficiently obvious does not give the Court grounds to find she 28 intended to deceive Defendants. Contra Lectrodryer v. SeoulBank, eee EIR IE IIE ID IIE OE OIE INR IEE SII EOE

1 77 Cal.App.4th 723, 726-27 (2000) (where the court found ample 2 evidence that an exporter of industrial equipment obtained a 3 letter of credit from a bank to pay the plaintiff but the bank 4 refused to do so even though the letter of credit was intended to 5 | be pre-paid). Any benefit she received from Nationstar’s failure 6 to carefully read what she faxed back to them can hardly be 7 characterizes as “injustice.” 8 Accordingly, the Court grants summary judgment in favor of 9 Plaintiff and against Defendants on Defendants’ second 10 counterclaim for unjust enrichment. 11 12 Til. ORDER 13 For the reasons set forth above: 14 (1) Plaintiff’s Motion for Summary Judgment on her First, 15 Cause of Action is DENIED. 16 (2) Plaintiff’s Motion for Summary Judgment on Defendants’ 17 First and Second Counterclaims is GRANTED. 18 (3) Defendants’ Motion for Summary Judgment on Plaintiff’s 19 First, Second, Third, and Fourth Causes of Action is GRANTED; and 20 (4) Defendants’ Motion for Summary Judgment on their First 21 and Second Counterclaims is DENIED. 22 The Clerk of the Court is ordered to close the case. 23 IT IS SO ORDERED. 24 Dated: December 7, 2020 25 Me 26 Benlek, sunk 27 28 16