Lewine v. BSI Financial Services CA2/1

Filed 1/25/21 Lewine v. BSI Financial Services CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROBERT LEWINE et al., B293975
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC657255)
v.
BSI FINANCIAL SERVICES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara Marie Scheper, Judge. Affirmed.
Law Offices of Steven Rein and Steven Rein for Plaintiffs
and Appellants.
Blank Rome, Cheryl S. Chang and Jessica A. McElroy for
Defendants and Respondents Wilmington Savings Fund Society
FSB, as trustee and Servis One, Inc. d/b/a BSI Financial Services.
ZBS Law and Bradford E. Klein for Defendant and
Respondent Zieve, Brodnax & Steele, LLP.
____________________________
Before us is an appeal by appellants Robert Lewine and
Phyllis Katz-Lewine (the Lewines)1 of the granting of a summary
judgment motion after a property they held as joint tenants was
sold at a foreclosure sale on April 4, 2017. The property was sold
to pay off a loan that was secured by a deed of trust on the
property. The Lewines sued Servis One, Inc., d/b/a BSI Financial
Services (BSI), the servicer of the underlying loan; Wilmington
Savings Fund Society, FSB, the beneficiary of the deed of trust
(WSFS); and Zieve, Brodnax & Steele, LLP, the trustee on the
deed of trust (ZBS) (collectively, respondents) on April 11, 2017,
claiming that they violated Civil Code section 2923.62 by
foreclosing on the property while a complete loan modification
application was pending, and without complying with the notice
and appeal provisions of section 2923.6.
Respondents countered that the Lewines’ claim had abated
because those appeal and notice provisions were repealed in 2018
and the Lewines’ loan modification application was not complete.
In 2018, the trial court agreed that the Lewines’ claim had
abated, granted summary judgment for respondents, and entered
judgment terminating the action.
As set forth in our Discussion, we need not address the
Lewines’ appellate claim that a recent legislative amendment to
section 2923.6 establishes that the abatement doctrine does not
apply to their cause of action against respondents. This is
because we agree with respondents’ alternative argument that,
1 For the sake of clarity, and meaning no disrespect, when
we refer to Robert Lewine or Phyllis Katz-Lewine individually,
we use their first names.
2 Undesignated statutory citations are to the Civil Code.
2
even if the Lewines’ claim under section 2923.6 had not abated, it
fails as a matter of law because the Lewines’ 2017 loan
modification application was incomplete. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
We summarize only those facts relevant to this appeal.
In 1976, Robert purchased the subject property in
Los Angeles for approximately $78,500. The Lewines held title to
the subject property as joint tenants prior to the foreclosure. In
January 2007, Phyllis executed a promissory note for $1 million,
which was secured by a deed of trust on the property. In
September or October 2012, Phyllis defaulted on the monthly
payment obligations in breach of the note and deed of trust.
On February 10, 2015, the deed of trust was assigned to
WSFS. At an unspecified point in time, ZBS became the
nonjudicial foreclosure trustee on the deed of trust.
On January 26, 2016, a notice of default and election to sell
under deed of trust was recorded with the Los Angeles County
Recorder’s Office. Between August 29, 2016 and
September 11, 2016, “ ‘Phyllis[,] by and through her counsel of
record[,] . . . submitted a loss modification application to the . . .
Statebridge Company, LLC[,]’ ” which, at that time, was the
servicer of the subject loan. On August 30, 2016, a notice of
trustee’s sale was recorded with the Los Angeles County
Recorder’s Office. On September 8, 2016, Statebridge informed
3 Part of this summary is based on the undisputed portions
of the trial court’s order granting respondents’ summary
judgment motion. (See Baxter v. State Teachers’ Retirement
System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the
summary of facts provided in the trial court’s ruling].)
3
Phyllis that her application was incomplete. On
September 16, 2016, Statebridge informed Phyllis that it had
received a facially complete application from her. On October 20,
2016, “Statebridge ‘addressed a letter to Phyllis . . . substantively
denying her . . . application due to insufficient income and
excessive liens on the Subject Property.’ ”
On October 25, 2016, BSI took over servicing of the loan.
On November 16, 2016, Phyllis appealed Statebridge’s denial of
her application to BSI. On December 22, 2016, BSI determined
that the appeal was incomplete and requested additional
documents. The Lewines thereafter submitted additional
documents but, on February 15, 2017, BSI advised the Lewines
that it “ ‘require[d] a new completed loan modification application
and supporting documents by or before March 2, 2017[,]’ ” and
BSI stated that it “would postpone the sale date by 45 days to
allow for this review.”
On March 1, 2017, BSI received a loan modification
application from the Lewines. On March 2, 2017, BSI wrote
Phyllis a letter notifying her that the loan modification
application was denied because it was incomplete. The Lewines
deny having received this letter until after the foreclosure sale,
which occurred on April 4, 2017. Although the Lewines claim
they belatedly received this letter “because it was addressed to
Phyllis but mailed to [the Lewines’ counsel’s] address,” their
appellate briefing does not explain how or precisely when they
actually received the letter.
On April 11, 2017, the Lewines filed a verified complaint
against respondents. The verified complaint stated that “[the
Lewines] are informed and believe and thereon allege that in
foreclosing on the property, [respondents] violated §2923.6(c) . . .
4
in that, at the time of the sale, [the Lewines] had submitted a
complete loan modification application which was under
consideration and had not been denied, nor had [respondents]
complied with any of the denial and appeal provisions of that
section.” The Lewines sought “all available relief under C.C.
§2924.12, including injunctive relief to stop the recordation of the
Trust Deed on Sale if it has not been recorded, an order
rescinding the sale, and/or damages.”
On May 25, 2017, BSI and WSFS filed a verified answer.
ZBS filed a verified answer on August 29, 2017.
On February 7, 2018, respondents moved for summary
judgment or, in the alternative, summary adjudication.
Respondents contended, inter alia, that the Lewines could not
establish that they violated section 2923.6 because the Lewines’
March 1, 2017 submission was not a complete application for a
loan modification.
On April 10, 2018, the Lewines opposed the motion.
On April 19, 2018, respondents filed a reply in support of
their motion, wherein they argued that the Lewines’ claim under
section 2923.6 abated because the statutory provisions affording
borrowers the right to appeal denials of loan modification
applications were repealed effective January 1, 2018 without a
savings clause. On May 4, 2018, the Lewines filed a surreply
brief addressing that issue.
On May 9, 2018, the trial court heard respondents’
summary judgment motion and agreed with respondents that the
Lewines’ cause of action had abated: “The Legislature chose not
to include a savings clause and this indicates a willingness to
terminate any pending claims.” The trial court thus issued an
order granting the motion. On July 18, 2018, the trial court
5
entered judgment in favor of respondents, and respondents
served notice of entry of judgment on the Lewines on
August 17, 2018. On October 11, 2018, the Lewines appealed the
judgment.
STANDARD OF REVIEW
“ ‘We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.’
[Citation.] ‘Summary judgment is appropriate only “where
no triable issue of material fact exists and the moving party
is entitled to judgment as a matter of law.” ’ [Citation.]”
(Barenborg v. Sigma Alpha Epsilon Fraternity (2019)
33 Cal.App.5th 70, 76.) “Under summary judgment law, ‘ “[t]here
is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact
in favor of the party opposing the motion in accordance with the
applicable standard of proof.” [Citation.]’ ” (Lares v. Los Angeles
County Metropolitan Transportation Authority (2020)
56 Cal.App.5th 318, 331–332.)
“ ‘ “[D]e novo review [of an order granting summary
judgment] does not obligate us to cull the record for the benefit of
the appellant in order to attempt to uncover the requisite triable
issues. As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and,
therefore, to point out the triable issues the appellant claims are
present by citation to the record and any supporting authority.
In other words, review is limited to issues which have been
adequately raised and briefed.” ’ [Citation.]” (See Los Angeles
Unified School Dist. v. Torres Construction Corp. (2020)
57 Cal.App.5th 480, 492 (Los Angeles Unified School Dist.).)
6
“We affirm the trial court’s decision [granting a summary
judgment motion] if it is correct on any ground the parties had an
adequate opportunity to address in the trial court, regardless of
the reasons the trial court gave.” (See Jameson v. Pacific Gas &
Electric Co. (2017) 16 Cal.App.5th 901, 909 (Jameson).)
DISCUSSION
As far as we can discern, the Lewines contend on appeal
that: (1) Because the Legislature reenacted in 2019 the very
provisions of section 2923.6 it had repealed in 2018, “the claims
abatement logic” upon which the lower court relied was
erroneous; (2) BSI is estopped to deny that it is “bound by the
mandates of §2923.6 as it existed at the time of the operative
facts in this case, particularly the appeal rights provisions”; and
(3) the authorities upon which respondents relied during the
proceedings below did not establish that the abatement doctrine
applies to the instant case.
Respondents disagree with each of these contentions, and
assert, as they did before the trial court, that the Lewines’ loan
modification application was not complete. Under the
respondents’ theory, the Lewines were not entitled to
section 2923.6’s protections even if the Lewines’ claim had not
abated.4
For the reasons discussed below, we agree that the
Lewines’ failure to submit a complete loan modification
application is fatal to their sole cause of action under
section 2923.6. (See Jameson, supra, 16 Cal.App.5th at p. 909
4 We observe that because the Lewines failed to file a reply
brief, they did not respond to the potential alternative bases for
affirmance raised in the respondents’ brief.
7
[noting that a reviewing court may affirm an order granting
summary judgment “on any ground the parties had an adequate
opportunity to address in the trial court”].)
A. The Reenactment in 2019 of the Appeal and Notice
Provisions that Existed in 2017 and the Legislature’s
Expression of Intent
Before turning to the merits of the appeal, we observe the
Lewines are correct that in 2019, the Legislature did indeed
reenact appeal and notice provisions that are virtually identical
to those in the version of section 2923.6 that existed in 2017, and
that were repealed in 2018, albeit briefly as it turned out.
More specifically, Senate Bill No. 818 reenacted the
substance of the pre-January 1, 2018 version of section 2923.6,
and those reenacted provisions went into effect on
January 1, 2019. (Compare Stats. 2012, ch. 87, § 7 [Senate Bill
No. 900, which added the version of section 2923.6 that was
effective until January 1, 2018], with Stats. 2018, ch. 404, § 7
[Senate Bill No. 818, which reenacted the substance of the pre-
January 1, 2018 version of section 2923.6].) After the passage of
Senate Bill No. 818, subdivisions (c) through (g) of section 2923.6
now read as follows:
(c) If a borrower submits a complete application for a
first lien[5] loan modification offered by, or through,
the borrower’s mortgage servicer at least five
business days before a scheduled foreclosure sale, a
mortgage servicer, mortgagee, trustee, beneficiary, or
5 “ ‘First lien’ means the most senior mortgage or deed of
trust on the property that is the subject of the notice of default or
notice of sale.” (§ 2920.5, subd. (d).)
8
authorized agent shall not record a notice of default
or notice of sale, or conduct a trustee’s sale, while the
complete first lien loan modification application is
pending. A mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent shall not record a
notice of default or notice of sale or conduct a
trustee’s sale until any of the following occurs:
(1) The mortgage servicer makes a written
determination that the borrower is not eligible
for a first lien loan modification, and any
appeal period pursuant to subdivision (d) has
expired.
(2) The borrower does not accept an offered
first lien loan modification within 14 days of
the offer.
(3) The borrower accepts a written first lien
loan modification, but defaults on, or otherwise
breaches the borrower’s obligations under, the
first lien loan modification.
(d) If the borrower’s application for a first lien loan
modification is denied, the borrower shall have at
least 30 days from the date of the written denial to
appeal the denial and to provide evidence that the
mortgage servicer’s determination was in error.
(e) If the borrower’s application for a first lien loan
modification is denied, the mortgage servicer,
mortgagee, trustee, beneficiary, or authorized agent
shall not record a notice of default or, if a notice of
default has already been recorded, record a notice of
sale or conduct a trustee’s sale until the later of:
9
(1) Thirty-one days after the borrower is
notified in writing of the denial.
(2) If the borrower appeals the denial pursuant
to subdivision (d), the later of 15 days after the
denial of the appeal or 14 days after a first lien
loan modification is offered after appeal but
declined by the borrower, or, if a first lien loan
modification is offered and accepted after
appeal, the date on which the borrower fails to
timely submit the first payment or otherwise
breaches the terms of the offer.
(f) Following the denial of a first lien loan
modification application, the mortgage servicer shall
send a written notice to the borrower identifying the
reasons for denial, including the following:
(1) The amount of time from the date of the
denial letter in which the borrower may request
an appeal of the denial of the first lien loan
modification and instructions regarding how to
appeal the denial.
(2) If the denial was based on investor
disallowance, the specific reasons for the
investor disallowance.
(3) If the denial is the result of a net present
value calculation, the monthly gross income
and property value used to calculate the net
present value and a statement that the
borrower may obtain all of the inputs used in
the net present value calculation upon written
request to the mortgage servicer.
10
(4) If applicable, a finding that the borrower
was previously offered a first lien loan
modification and failed to successfully make
payments under the terms of the modified loan.
(5) If applicable, a description of other
foreclosure prevention alternatives for which
the borrower may be eligible, and a list of the
steps the borrower must take in order to be
considered for those options. If the mortgage
servicer has already approved the borrower for
another foreclosure prevention alternative,
information necessary to complete the
foreclosure prevention alternative.
(g) In order to minimize the risk of borrowers
submitting multiple applications for first lien loan
modifications for the purpose of delay, the mortgage
servicer shall not be obligated to evaluate
applications from borrowers who have been evaluated
or afforded a fair opportunity to be evaluated
consistent with the requirements of this section,
unless there has been a material change in the
borrower’s financial circumstances since the date of
the borrower’s previous application and that change
is documented by the borrower and submitted to the
mortgage servicer.[6]
6 This statutory text is identical to the version of
subdivisions (c) through (g) that was in effect prior to
January 1, 2018, except the pre-January 1, 2018 version of
subdivision (c) did not specify that the application must be
submitted at least five business days before a scheduled
11
(Stats. 2018, ch. 404, § 7.)
The Legislature stated the following in section 26 of
Senate Bill No. 818: “It is the intent of the Legislature that any
amendment, addition, or repeal of a section or part of a section
enacted by Senate Bill 900 [(which added the pre-January 1, 2018
version of section 2923.6)] . . . that took effect as of
January 1, 2018, shall not have the effect to release, extinguish, or
change, in whole or in part, any liability that shall have been
incurred under that section, or part of a section, prior to January
1, 2018, unless the amendment, addition, or repeal expressly so
provides. The section, or part of a section, that was amended,
added, or repealed shall be treated as still remaining in force for
the purpose of sustaining any proper action, suit, or proceeding
for the enforcement of such a liability, as well as for the purpose
of sustaining any judgment, decree, or order.” (See Stats. 2018,
ch. 404, § 26, italics added.)
Even though this provision arguably expresses the
Legislature’s intent to revive a claim like the Lewines’ cause of
action under section 2923.6, the parties fail to discuss section 26
at all in their briefing. We do not discuss it further because the
Lewines’ cause of action would fail even if the abatement doctrine
did not apply to their claim.
foreclosure sale, and certain minor modifications have been made
to the current version of subdivision (g) that are not relevant
here. (See Stats. 2012, ch. 87, § 7.)
12
B. The Lewines’ Loan Modification Application Was
Incomplete and the Notice and Appeal Provisions of
the Current and Pre-January 1, 2018 Versions of
Section 2923.6 Do Not Apply to Incomplete Loan
Modification Applications
As set forth in the Factual and Procedural Background, on
February 15, 2017, BSI advised the Lewines that it needed them
to submit a new loan modification application and supporting
documents by March 2, 2017. The Lewines do not contend that
this request was improper. Rather, they complain that BSI
thereafter foreclosed on their property without informing them
“in what respect [their loan modification application] was
incomplete; without advising them of their appeal rights as
required by C.C. §2923.6(e); and without giving them 30 days to
appeal, plus 15 additional days, as required by C.C. §2923(e).”7
7 To the extent that the Lewines intended to proceed on
any other theory (e.g., respondents foreclosed on the property
when an appeal of a loan modification application—and not a
loan modification application itself—was pending), they have
failed to articulate clearly any such theory on appeal. (See Los
Angeles Unified School Dist., supra, 57 Cal.App.5th at p. 492
[“ ‘ “As with an appeal from any judgment, it is the appellant’s
responsibility to affirmatively demonstrate error and, therefore,
to point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.” ’ ”]; Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956
(Cahill) [“ ‘Appellate briefs must provide argument and legal
authority for the positions taken. . . . The absence of cogent legal
argument or citation to authority allows this court to treat the
contention as waived.’ ”].)
13
Under the version of section 2923.6 that was in effect prior
to January 1, 2018 and the version that is currently operative, a
borrower is entitled to written notice of a denial of a loan
modification application and an appeal therefrom only if the
borrower has submitted a complete application. Subdivision (c) of
the statute prescribes the legal consequences that follow “[i]f a
borrower submits a complete application for a first lien loan
modification” (e.g., a trustee’s sale shall not be conducted during
the pendency of the application), and subdivisions (d), (e), and (f)
of the statute afford notice and appellate rights to “the
borrower.” (See § 2923.6, subds. (c)–(f).) Given the text (i.e.,
subdivisions (d)’s, (e)’s, and (f)’s placement of the definite article
“the” before “borrower”) and the structure of these four provisions
(i.e., subdivisions (d), (e), and (f) follow subdivision (c)), it is
apparent that subdivisions (c), (d), (e), and (f) all confer rights to
the same borrower—to wit, the borrower who has submitted a
complete loan modification application.8
8 (See People v. Chevron Chemical Co. (1983)
143 Cal.App.3d 50, 54 [“ ‘[A] statute should be construed with
reference to the entire statutory system of which it forms a
part in such a way that harmony may be achieved among its
parts. . . .’ ”]; cf. Pineda v. Bank of America, N.A. (2010)
50 Cal.4th 1389, 1396–1397 [“Use of the indefinite articles ‘a’ or
‘an’ signals a general reference, while use of the definite article
‘the’ (or ‘these’ in the instance of plural nouns) refers to a specific
person, place, or thing. [Citation.] . . . [H]ad the Legislature
used the definite article ‘the’ before ‘action for the wages,’ as in
‘suit may be filed for these penalties at any time before the
expiration of the statute of limitations on the action for the wages
from which the penalties arise,’ it would suggest the Legislature
was referring to a specific suit for unpaid final wages filed by an
employee who seeks section 203 penalties as well.”].)
14
Furthermore, several federal district courts have arrived at
the same conclusion, that is, a borrower is entitled to these notice
and appeal rights only if he or she has submitted a complete
application.9 In fact, the Lewines conceded during the
proceedings below and before our court that Rocha stands for this
proposition, yet they do not contend that Rocha was wrongly
decided.
“For purposes of [section 2923.6], an application shall be
deemed ‘complete’ when a borrower has supplied the mortgage
servicer with all documents required by the mortgage servicer
within the reasonable timeframes specified by the mortgage
servicer.” (See § 2923.6, subd. (h); Stats. 2012, ch. 87, § 7 [pre-
January 1, 2018 version of § 2923.6, subd. (h), which is identical
to the current version of that provision].) In a February 15, 2017
9 (See Penermon v. Wells Fargo Bank, N.A. (N.D.Cal. 2014)
47 F.Supp.3d 982, 998–999 [granting a motion to dismiss the
plaintiff’s claim that the defendant failed to provide her with a
written denial or allow her to appeal the denial of her application
because she “fail[ed] to clearly plead that [her] application as
submitted was complete as required by” section 2923.6]; Rocha v.
CIT Bank, N.A. (N.D.Cal., Apr. 3, 2018) [2018 U.S. Dist. Lexis
57671, at p. *25] [nonpub. opn.] (Rocha) [“Without a complete
application, [the defendant-bank] had no obligation to review
Plaintiffs’ loan modification application, and it was neither
obligated to provide a written denial as required by the statute
nor impeded from proceeding with a foreclosure sale.”].) We may
consider Rocha because, “ ‘[a]lthough we may not rely on
unpublished California cases, the California Rules of Court
do not prohibit citation to unpublished federal cases, which may
properly be cited as persuasive, although not binding, authority.’
[Citation.]” (Herpel v. County of Riverside (2020) 45 Cal.App.5th
96, 122, fn. 25.)
15
letter, BSI asked the Lewines to submit several documents in
support of their new loan modification application within 15 days,
including a “pension benefit statement.” Included in the Lewines’
March 1, 2017 submission of documents to BSI is a letter from
Phyllis in which she stated that “[she] can’t find [her] SAG
pension benefit statement,” and claimed that “[t]he monthly
payment received is highlighted on [her] U.S. Bank statements.”
Absent from the Lewines’ briefing is any argument that 15 days
was not a reasonable timeframe in which they could obtain the
missing pension benefit statement, nor is it apparent that this
deadline was unreasonable. Absent also from the Lewines’
briefing is any explanation why a line item on a bank statement
is equivalent to a representation from the union (SAG) about the
amount of Phyllis’s pension income, especially where it is
common sense that this information would be necessary to
evaluate Phyllis’s ability to pay a modified loan.
It follows that no reasonable trier of fact could find that the
Lewines’ March 1, 2017 loan modification application was
complete for the purposes of section 2923.6. Because the
Lewines’ sole cause of action under section 2923.6 fails as a
matter of law, the trial court did not err in granting respondents’
motion for summary judgment.10 (See Code Civ. Proc., § 437c,
10 When the Lewines submitted their loan modification
application on March 1, 2017, section 2924.10, subdivision (a)
obligated BSI to provide “written acknowledgment of the receipt”
of “any document in connection with a first lien modification
application” within five business days of receiving it; that written
acknowledgment needed to identify “[a]ny deficiency in the
borrower’s first lien loan modification application.” (See Stats.
2012, ch. 87, § 13.) Much like the provisions of section 2923.6
discussed in this opinion, section 2924.10 was repealed as of
16
subd. (c) [“The motion for summary judgment shall be granted if
all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”].)
January 1, 2018, and reenacted effective January 1, 2019. (See
Stats. 2012, ch. 87, § 13; Stats. 2018, ch. 404, § 13.)
The Lewines did not allege in their complaint that
respondents violated section 2924.10, nor do they argue on appeal
that BSI failed to comply with this statute after the Lewines
submitted their loan modification application on March 1, 2017.
Thus, we need not decide whether the Lewines could have
obtained relief for a violation of section 2924.10. (See Laabs v.
City of Victorville (2008) 163 Cal.App.4th 1242, 1253 [“ ‘To create
a triable issue of material fact, the opposition evidence must be
directed to issues raised by the pleadings. [Citation.] If the
opposing party’s evidence would show some factual assertion,
legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the
summary judgment motion. [Citations.]’ ”]; Cahill, supra,
194 Cal.App.4th at p. 956 [“ ‘We are not bound to develop
appellants’ arguments for them. [Citation.]’ ”].)
17
DISPOSITION
The judgment is affirmed. Respondents Servis One, Inc.
d/b/a BSI Financial Services; Wilmington Savings Fund Society,
FSB; and Zieve, Brodnax & Steele, LLP are awarded their costs
on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
18