MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

(2001) 25 Cal.4th 809, 821.) To the extent that Plaintiff’s claim is based on breach of the HELOC contract, the claim is barred by the four-year statute of limitations because she did not file this action until September of 2024 (Code Civ. Proc. § 337(a).) Plaintiff does not sufficiently articulate in her opposition brief the authority for any other legal theories concerning the missing statements. Similarly, and assuming for sake of argument that Plaintiff was unaware of the alleged excessive balance until January of 2020 - which would not appear to be the case given her communications with the lender (assisted by a third party) in 2015 and 2019 – the same limitations period would apply. Here too, no other legal theory is supported in the opposition.

Plaintiff’s other principal theory is that she was induced not to sell or refinance her house because of the March 3rd and 23rd of 2021, phone calls in which Defendant allegedly advised her that the property was no longer in foreclosure. (Sklavenitis July 2, 2026, Dec. at ¶17). This statement is inconsistent with her statement that she and her husband discussed selling the property in 2020 but did not do so “because the dispute over the HELOC balance, which [she] believed was inflated and inaccurate, would have consumed a very significant portion of the equity in the Subject Property.” (Sklavenitis July 2, 2026, Dec. at ¶23).

Moreover, after the Defendant apparently changed its mind and moved forward with a foreclosure (UMF 14 – Undisputed filing of Notice of Default in April 2022), Plaintiff attempted to obtain the same loan modification that she had forgone previously. (Sklavenitis July 2, 2026, Dec. at ¶22). There is not triable issue of fact as to Plaintiff’s reliance on the “out of foreclosure” representation.

Plaintiff fails to support with evidence and/or legal authority the other fact/law theories that she alleged in her complaint: 1) enforceability of the HELOC Deed of Trust; 2) enforceability of the Trustee’s Deed Upon Sale arising from the 2024 Sale; 3) violation of Truth in Lending Act; Real Estate Settlement Procedures Act; and/or unfair and deceptive practices law; 4) failure to comply with the notice requirements for the 2024 Notice of Trustee’s Sale; 5) dual tracking; or 6) chain of title issues with MERS. She does not create triable issues of fact with respect to these theories.

Moving party is ordered to circulate and file a proposed order and judgment for the Court’s signature, and to serve notice of the Court’s ruling.

DISCUSSION

Late Opposition - The opposition was filed late, but the Court granted leave to do so via ex parte application and order.

Defendant’s Undisputed Material Facts

Undisputed: 1, 2, 3, 5, 6, 7, 8, 9, 10, 13, 14, 16, 17, 19, 20, 21, 22. Disputed but established: 11, 12, 15, 16, 18. Disputed and not established: 4.

Evidentiary Objections-

Objection No. 1: “On or about March 23, 2021, I had a further telephone conversation with an SLS representative. During that call, my advocate was told that the account had been ‘charged off’ and

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

that it was no longer available for a modification. I have since learned that SLS’s own internal servicing notes from that date state: ‘NO LONGER AVAIL FOR MOD HAD BEEN RECENTLY CHARGED OFF – LOOKING TO RESOLVE BY SIF.’ A true and correct copy of the relevant portion of SLS’s internal servicing notes dated March 23, 2021, is attached hereto as Exhibit A. I understand that ‘SIF’ means Settlement in Full, which is an arrangement in which the servicer accepts less than the full outstanding balance to resolve the debt. The content of SLS’s own internal notes is entirely consistent with what I was told on that call.” Sklavenitis Declaration, at 5:3-12.

Objections: Lacks foundation/authentication (Evid. Code §§ 1400-1401); Lacks personal knowledge (Evid. Code §§ 403, 702, 800); Improper opinion. (Evid. Code §§ 720, 800, 802); Hearsay (Evid. Code § 1200); Relevance (Evid. Code §§ 210, 350); Lacks probative value (Evid. Code § 352).

The objections are overruled.

Objection No. 2: “Defendants’ own intended path for resolving the HELOC was a negotiated settlement for less than the full balance, not a foreclosure for the full claimed amount.”

Objections: Lacks foundation/authentication (Evid. Code §§ 1400-1401); Lacks personal knowledge (Evid. Code §§ 403, 702, 800); Improper opinion. (Evid. Code §§ 720, 800, 802); Hearsay (Evid. Code § 1200); Relevance (Evid. Code §§ 210, 350); Lacks probative value (Evid. Code § 352).

The objections are overruled.

Objection No. 3: “On or about March 25, 2021, approximately two days after being told the account had been charged off’ and that SLS was looking to settle, I received a Notice of Trustee Sale in the mail, which appeared to schedule a sale for that very date. I was deeply confused and alarmed by this document. I did not understand how I could have been told twice in the preceding weeks that I was ‘no longer in foreclosure’ and that the account had been charged off and was being resolved by settlement, and then receive a Notice of Trustee Sale two days after the second of those representations. No sale occurred on March 25, 2021, which I understood to be consistent with the representations that had been made to me.” Sklavenitis Declaration, at 5:19-6:2.

Objections: Lacks foundation/authentication (Evid. Code §§ 1400-1401); Best evidence rule (Evid. Code §§ 1521, 1523); contradicts deposition (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473). To prove the contents of a writing, Plaintiff must introduce it. At deposition, Defendants specifically challenged Plaintiff that she had not produced such a Notice of Trustee’s Sale and asked her to identify it in her production or produce it; to date, she has done neither.

The objections are overruled.

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

MERITS

Declaratory Relief 10th COA - The Cause of Action for Declaratory Relief is the sole remaining cause of action in this complaint. It states:

109. Ms. Sklavenitis re-alleges and incorporates by this reference each and every preceding paragraph as though fully set forth herein.

110. An actual, present controversy exists between Ms. Sklavenitis and Defendants concerning the validity of Defendant’s claimed HELOC arrears, the enforceability of the HELOC Deed of Trust and the Trustee’s Deed Upon Sale arising from the 2024 Sale, and the parties’ respective rights, duties, and obligations with respect to the Subject Property.

111. Ms. Sklavenitis contend that the 2024 Sale is void or voidable, that Defendants’ arrears calculations are unlawful and excessive, and that Ms. Sklavenitis should retain or be restored to legal title subject only to lawful liens in amounts determined by the Court. Defendants contend otherwise.

112. Ms. Sklavenitis seeks a judicial declaration of the parties’ rights, status, and legal relations regarding the Subject Property, the HELOC, the 2024 Sale, and any claimed interests arising therefrom, including a declaration that the 2024 Sale is void or voidable and that Defendants’ claimed arrears are unlawful and excessive.

Defendant identifies the factual issues in the complaint and at issue in the motion, in sum, as follows:

Plaintiff claims that she did not receive statements starting in 2013

Plaintiff authorized California Capital Mortgage to communicate with SLS in 2015 and 2019.

By January 2020, the parties were in discussions regarding foreclosure and the accrued HELOC balance

Plaintiff did not file her lawsuit until September 23, 2024.

In the intervening years, January of 2020 through September of 2024, Plaintiff did nothing.

Plaintiff filed 3 bankruptcies to delay the foreclosures.

Plaintiff admitted under POP, in the BK that she did not have claims against 3rd parties.

The Court will attempt to summarize the theories raised by Plaintiff as follows:

1. The validity of Defendants’ claimed HELOC arrears, which are unlawful and excessive. –

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

Plaintiff bases this claim on the lack of monthly statements. She does not deny or rebut communications in 2015 and 2019 asking about the loan and apparently using a third-party advocate for assistance. But assuming arguendo the necessity of a monthly statement theory Plaintiff advances, she receives a statement in January 2020 (Plaintiff admits in her opposing Separate Statement that she received “some monthly statements beginning in January 2020”). If the theory is breach of contract in failing to send prior statements, then Defendant correctly argues that the statute of limitations of four years expired by the time she filed her complaint in September 2024.

Plaintiff argues in the opposition that:

“The HELOC is a consumer credit plan subject to TILA and Regulation Z, specifically 15 U.S.C. § 1637(b), 12 C.F.R. § 1026.5(b)(2), and California Civil Code sections 1799.90 through 1799.97. The CFPB [Consumer Financial Protection Bureau] has stated that times of default are precisely when a consumer most needs the periodic statement, and that as long as charges may be assessed, the consumer is entitled to receive a periodic statement. The CFPB has specifically identified the practice at issue here, in which second mortgage holders ceased communicating with borrowers, and then later, as home”

The Court is unable to determine which provision is relevant to this dispute and how. If the contention is that one of those statutes states that the failure to provide monthly statements would be actionable after more than 4 years, it is incumbent on Plaintiff to explain.

2. The enforceability of the HELOC Deed of Trust – Plaintiff argues that the Deed of Trust was sent to two entities in 2011 and 2012. (Oppo at 5:7-15). “[W]hether the CWHEQ trust therefore holds a valid interest in the Subject Property sufficient to have supported the September 2024 foreclosure, is a genuine dispute of material fact and law.” Plaintiff has cited no law supporting this conclusion. Nor has she provided a citation to evidence or the documents to the Court.

3. The enforceability of the Trustee’s Deed Upon Sale arising from the 2024 Sale – This issue is not clearly explained in the complaint. The only argument in the opposition addresses the fact that the amount listed was properly calculated.

4. Violation of the HELOC agreement - The opposition does not explain the issue. Other than the monthly statement issue, there is no additional discussion about this in the opposition.

5. Violation of the Truth in Lending Act- This is not raised in the opposition.

6. Violation of the Real Estate Settlement Procedures Act (RESPA) - This is not raised in the opposition.

7. Violation of unfair and deceptive practices law which prevent creditors from claiming amounts owed under a contract when they have failed to provide notice to the borrower - This is not raised in the opposition.

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

8. March 2021 representation that the property was no longer in foreclosure and the account had been charged off - This appears to be the most significant issue raised by Plaintiff. She contends that in the telephone call this representation was made and that Exh. A to her declaration supports that these representations were made. Defendant argues in its reply that her interpretation of the note is inaccurate. A Shellpoint representative declares that “The comment does not reflect that Shellpoint desired or intended to accept a reduced amount on the HELOC, nor that Shellpoint would make an offer. Rather, it was Borrower who was going to make an offer, and Shellpoint required the senior lien’s payoff quote to assess the offer.”

The meaning of the statement is immaterial. Even assuming that the property was not in foreclosure, the company could have changed course. When the Notice of Default was filed in April of 2022 it was not necessarily improper. Plaintiff is correct that it could affect the accrual date for limitations purposes, but that would only impact the monthly statement issue, not the entire complaint.

The Court is not persuaded that any damages flowed from Plaintiff’s reliance on the “house out of foreclosure” statement, even assuming Plaintiff’s interpretation is correct.

9. 2024 Notice of Trustee’s Sale was defective because it misstated the amount in default and did not fully comply with the requisite notice period – The amount in default is the arrearage issue which is barred by the statute of limitations.

10. Dual Tracking - when Plaintiff called Shellpoint, they could not identify her account, no single point of contact, failure to engage in meaningful good faith loss mitigation options - This is not raised in the opposition or Plaintiff’s Declaration.

Four Legal Issues Raised by Defendant

Issue 1 Defendants Are Entitled to Judgment Because the Allegations Lack Merit

Based on the foregoing, the Court concludes that the allegations do lack merit.

Issue 2 – Finance Charge is Independent of a Monthly Statement Requirement - Defendant argues that the obligation to send monthly statement is distinct from the finance charge. Sending monthly statements is not a condition precedent to imposing finance charges.

“If the parties’ obligations are independent, the breach by one party does not excuse the other party’s performance.” (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1183). Plaintiff cannot reasonably challenge the accrued amount based on the lack of statements being sent to her. Hypothetically, failing to send the monthly statement may have been a violation of law, but Plaintiff has not demonstrated this in her opposition.

Issue 3 – Defendants Are Entitled to Judgment Based on the Statute of Limitation- Defendant correctly argues that the limitations period for declaratory relief depends on the rights sought to be enforced. Plaintiff’s claim is based on a breach of written contract: Defendant was

2024CUOR030757: MARIA SKLAVENITIS, et al. vs SHELLPOINT MORTGAGE SERVICING, et al.

allegedly required to send monthly statements but purportedly did not do so. As such, the statute of limitations is four years. (See Code Civ. Proc. § 337(a).) Defendant’s position is that because Plaintiff admitted to receiving the statements in January 2020, and any right to challenge based on that issue was time barred when she brought her case in September 2024.

Issue 4 – The Declaratory Relief Cause of Action is Barred by the Doctrine of Laches – Defendant argues that Plaintiff’s unreasonable delay and acquiescence bars the claim. Plaintiff admittedly had knowledge of the accrual of finance charges sufficient to bring the action in 2020 but waited more than 4 years to do so. (UMFs 9, 10, and 22.) Moreover, Plaintiff filed bankruptcies in 2023 wherein she acknowledged the debt and said it was not disputed and she had no claims against third parties, and did not object to Defendant’s proof of claims that identified every finance charge and other fee from October 25, 2021.

Plaintiff could have resolved the present dispute in those bankruptcies, or in a lawsuit filed before the trustee’s sale. Instead, she slept on her rights by waiting until after the foreclosure occurred (UMFs 21-22), and her bankruptcy filings acquiesced to the validity of the debt and amount owed on the HELOC. In some cases, laches can provide a basis to prevail on Motion for Summary Judgment. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67). However, based on the facts before the Court, the issue of laches cannot be determined as a matter of law here.

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