Andre Howell v. Select Portfolio Servicing, Inc.

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. (Ibid.) A cause of action has no merit if either (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o).)

First Cause of Action - Violation of Civil Code section 2923.55; Failing to Notify the Homeowner about Possible Foreclosure

Howell alleges that defendants violated Civil Code section 2923.55 because they did not contact him (in writing or by telephone) to assess his financial situation, or explore options to avoid foreclosure before recording the Notice of Default. (NOD.) (Compl., ¶¶ 25-30.)

Civil Code section 2923.55 provides that a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record an NOD until the mortgage servicer has either contacted “the borrower” in person or by telephone to discuss foreclosure avoidance options, or has attempted with due diligence to contact the borrower. The statute requires the contact to occur more than 30 days before the notice of default is recorded.

The NOD was recorded on June 15, 2023. (SUF, No. 17.) Defendants sent Howell a letter on August 30, 2022, that included all of the information required under Civil Code section 2923.55(b)(1). (SUF, No 6.) The letter told Howell that payments on his Loan were past due and his Property may be referred to for foreclosure. Ibid. The letter further informed Howell that, upon written request, he was entitled to a copy of the payment history of the Loan, the note, assignments, and/or deed of trust. Ibid. This letter provided a statement on the protections under the federal Service members Civil Relief Act (SCRA) and the phone number and email to contact U.S. Department of Housing and Urban Development if Plaintiff would like counseling or assistance. Ibid.

Defendants also spoke with Howell by telephone multiple times prior to recording the NOD to discuss the Howell’s account, his financial situation, foreclosure alternatives, decision notices, and approved plans. Those telephone calls occurred on multiple dates, including on December 27, 2021; October 27, 2022; November 11, 2022; January 4, 2023; March 1, 2023; March 9, 2023; April 8, 2023; April 19, 2023; and May 9, 2023. (SUF, Nos. 18, 19.)

Defendants further complied with Civil Code section 2923.55, subsection (c) by including a signed California Declaration of Compliance to the NOD that states that “[o]n 12/27/2021 contact was made with the Plaintiff to assess the Plaintiff’s financial situation and explore options for the Plaintiff to avoid foreclosure as required by California Civil Code § 2923.55(b)(2).” (SUF, No. 17.)

For these reasons, defendants have met their burden on summary judgement with respect to the first cause of action, by demonstrating they did contact Howell by writing and telephone to assess his financial situation, before recording an NOD.

Second Cause of Action - Violation of Civil Code section 2923.6; Failure to Provide Written Denial

Howell alleges defendants violated Civil Code section 2923.6, subdivision (c) by failing to postpone the sale date while a complete loan modification was pending and failing to provide a written determination.

Civil Code section 2923.6 prohibits loan servicers from taking three specific actions while a plaintiff’s “complete application for a first lien loan modification,” is pending: (1) recording a notice of default; (2) recording a notice of trustee's sale; and (3) conducting a trustee's sale. (Civ. Code, § 2923.6(c).) The noticing and appeal deadline provisions of Civil Code section 2923.6 are only triggered if a plaintiff submits a “complete” application for a first lien loan modification. (Civ. Code, § 2923.6(d).)

Howell submitted a complete Request for Mortgage Assistance application on October 18, 2022. (SUF, No. 7.) Defendants sent a letter acknowledging receipt of the complete assistance application on October 20, 2022. (SUF, No. 8.) Following review of Howell’s application, defendants approved Howell for a temporary 12 month Repayment Plan and notified Howell of the decision on October 26, 2022. (SUF, Nos. 9, 33.) The Repayment Plan explicitly stated that if Howell failed to make any payment by or before the listed due date on the payment schedule, the Repayment Plan would be cancelled. (Ibid.)

Howell made the first three (3) payments under the Repayment Plan – November 30, 2022, December 30, 2023, and January 30, 2023 – and then ceased making any further payments under the plan. (SUF, No. 10.) As a result, Defendants sent Plaintiff a letter on March 16, 2023, informing him that the Repayment Plan was being withdrawn because Plaintiff had not make the required plan payments. (SUF, No. 11.) According to the undisputed material facts, Plaintiff submitted yet another Request for Mortgage Assistance application on April 10, 2023. (SUF, No. 13.) Based upon SPS’s review of Howell’s application, SPS determined that Plaintiff did not qualify for any home retention loss mitigation options. (SUF, Nos. 14-15.)

Accordingly, SPS sent Howell a letter dated April 18, 2023, notifying Howell of SPS’s determination. (SUF, No 16.) This correspondence provided Howell with information regarding the home retention loss mitigation options for which Howell was reviewed, and the reason why Howell did not qualify for each option. Id.

Thus, by the time the NOD was recorded on June 15, 2023, defendants had reviewed and denied Plaintiff’s April 2023 application. SUF, No.

17.

For these reasons, defendants met their burden on summary judgement with respect to the second cause of action, by demonstrating there was no application pending at the time the NOD was recorded.

Third Cause of Action - Violation of Civil Code section 2923.7 – Failure to Assign a Single Point of Contact

Civil Code section 2923.7(a) states: “When a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.”

Howell alleges that Defendants failed to assign him with a Single Point of Contact (“SPOC”) within a reasonable time after receipt of the loan modification application, which prevented him from knowing the status of the loan modification since he never received a denial. (Compl., ¶¶ 49-41.) Howell alleges that this failure prevented him from filing for bankruptcy or selling the Property himself. (Compl., ¶ 54.)

Defendants sent Howell letters notifying Howell of his assigned SPOC, and providing contact information for Howell’s SPOC. (SUF, No. 34.) Each time the SPOC was reassigned, defendants would send a letter to Howell advising him of the assignment of an SPOC, and providing him with information regarding how he could contact his new SPOC. (Ibid.) Additionally, defendants’ evidence establishes that Howell was able to submit loss mitigation documentation, which was promptly reviewed and responded to, and was regularly able to communicate with SPS agents regarding his account, the amount of default, the status of his loan applications, and information concerning the trustee’s sale. (SUF, Nos. 7-32.)

Furthermore, a violation of Civil Code section 2923.7 is actionable only when that violation is material. A material violation is one where the alleged violation affected a plaintiff's loan obligations or the modification process. Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal. App. 5th 907 provides an example where the action was dismissed where plaintiff’s allegations demonstrated that the servicer assigned a customer service representative to process loan modification application. Here, Howell has multiple opportunities to apply for loss mitigation options. (SUF, Nos. 7,13, 21, 29.)

For these reasons, defendants met their burden on summary judgement with respect to the third cause of action, as defendants demonstrated they complied with Civil Code section 2923.7, because Howell had numerous opportunities to apply for loss mitigation options, and if there was a breach, it was not material.

Fourth Cause of Action - Violation of Civil Code Section 2924.9, Failure to Provide Homeowner with Foreclosure Alternatives

Civil Code 2924.9 provides, in relevant part, unless a borrower has previously exhausted the first lien loan modification process offered by, that within five business days after recording a notice of default pursuant to Civil Code 2924, a mortgage servicer shall send a written communication to the borrower that includes all of the following information: (1) That the borrower may be evaluated for a foreclosure alternative prevention alternative or, if applicable foreclosure prevention alternatives, (2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative, and (3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.

Howell alleges that defendants failed to provide him with all foreclosure alternatives within (5) business days after the NOD was recorded, as required by Civil Code section 2924.9. (Compl., ¶ 35.)

Defendants had no obligation to send written communication to Howell within five (5) business days after recording the NOD since the undisputed material facts establish that defendants had already reviewed Howell twice for foreclosure prevention alternatives and even approved Howell for a Repayment Plan (which Plaintiff failed to complete). SUF, Nos. 7-9, 33, 13-16.

On April 10, 2023, Howell submitted another Request for Mortgage Assistance application to defendants. Defendants ultimately determined plaintiff did not qualify for any home retention loss mitigation options. (SUF, Nos. 13-16.)

Thus, at the time the NOD was recorded on June 15, 2023, Howell had already “previously exhausted the first lien loan modification process” and defendants were under no obligation to send a written communication to Howell within five (5) days of recording the NOD as required by section 2924.9.

Accordingly, defendants met their burden for summary judgment, as to this cause of action.

Fifth Cause of Action - Wrongful Foreclosure

Howell alleges that Defendant wrongfully foreclosed on the Property because Defendant violated Civil Code sections 2923.55, 2923.6, 2923.7, and 2924.9. (Compl., ¶ 63.)

To challenge a trustee’s sale, a plaintiff must allege that: (1) The trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually, but not always, the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” Sciarratta v. U.S. Bank Nat’l Ass’n (2016) 247 Cal.App.4th 552, 56 – 62 (internal citations omitted).

Howell’s claim for wrongful foreclosure is derivative of his other claims and fails for the same reasons identified above—namely that the undisputed material facts establish that defendants fully complied with HBOR by fully reviewing Plaintiff multiple times and even approving him for a Repayment Plan, which Howell also defaulted on. (SUF, Nos. 7- 9, 33, 13-16, 21-24, 29-31.)

Furthermore, Howell did not tender the full amount of the loan deficiency. SUF, Nos 38-39. Tender “requires the trustor to make ‘an offer to pay the full amount of the debt for which the property was security.’” (Ram v. OneWestBank, FSB (2015) 234Cal.App. 4th 1, 11. “‘. . . It is apparent from the general tenor of the decisions that an action to set aside the sale, unaccompanied by an offer to redeem, would not state a cause of action

which a court of equity would recognize.’” (Karlsen v. American Sav. & Loan Assn. (1971) 15Cal.App.3d 112, 117 (citing Copsey v. Sacramento Bank (1901) 133 Cal. 659, 662).)

Accordingly, defendants met their burden for summary judgment on this cause of action.

Sixth Cause of Action - Unfair Business Practices, Violation of Business & Professional Code section17200, et seq.

Unfair business practices under Business and Professions Code Section 17200 et seq., also known as the Unfair Competition Law (“UCL”), “shall mean and include any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code § 17200.) “Because . . . section 17200 is written in the disjunctive, it established [that] three varieties of unfair-competition-acts or practices are unlawful, or unfair, or fraudulent’ . . . ‘A practice is prohibited as ‘unfair’ or ‘deceptive’ even if not ‘unlawful’ or vice versa.’” (Lippit v. Raymond James Fin. Servs., Inc. (9th Cir. 2003) 340 F. 3d 1033, 1043 (quoting Cel-Tech Commc-ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 180).)

Courts have made it clear that the UCL cannot be used as an end-run around the requirements of other statutes. (Glenn K. Jackson Inc. v. Roe (9th Cir. 2001) 273 F. 3d 1192, 1203.) “A court may not allow plaintiff to plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition.” (Chamber v. United of Omaha Life Ins. Co. (9th Cir. 2000) 225 F. 3d 1042, 1048.)

Howell’s claim for unfair business practices is wholly premised upon his claims for violations of HBOR and wrongful foreclosure, which fail for the same reasons demonstrated above. (SUF, Nos. 1-39)

Accordingly, having established that Howell cannot establish at least one element of every cause of action met their burden for summary judgment. The burden now shifts to Howell. Since Howell has not opposed this motion as of the date of this tentative ruling, his burden remains unmet.

Accordingly, defendants’ motion for summary judgment is granted, and defendants are ordered to submit a judgment conforming to the court’s order within 10 days of the clerk’s service of the minute order.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 5/11/2026. (Judge’s initials) (Date)

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