SERVIS ONE, INC. vs WATTS

3. CASE # CASE NAME HEARING NAME SERVIS ONE, INC. vs MOTION FOR SUMMARY

WATTS JUDGMENT Tentative Ruling:

Moving party: Plaintiff Servis One, Inc. dba BSI Financial Services (“Plaintiff”) Responding party: Defendant Shawn Watts (“Defendant” or “Watts”)

Complaint for judicial foreclosure filed on August 14, 2025.

Plaintiff now moves for summary judgment on grounds that there is no defense to the action, no triable issue as to any material fact, and Plaintiff is entitled to a judgment of foreclosure as a matter of law based upon the undisputed material facts that (1) Plaintiff is the holder of the original Note and the current beneficiary under the subject Deed of Trust, (2) Defendant is in default under the Note and Deed of Trust, and (3) the debt secured by the Deed of Trust has not been repaid.

In accordance with the relief requested in the Complaint for Judicial Foreclosure filed by Plaintiff in the above-captioned action, Plaintiff seeks a judgment that: (a) the Deed of Trust may be foreclosed, (b) ordering the sale of the Property according to law by the Sheriff of Riverside County, California in the manner provided by law, (c) the proceeds of the sale be applied in payment of the amounts due to Plaintiff, and (d) Defendants Watts, and all persons claiming any liens under any title instruments subsequent to the execution and original recordation of the Deed of Trust, be barred and foreclosed from all rights, claims, or equity redemption in the Property and every part of the Property. Plaintiff states it has waived and is not seeking a deficiency judgment in this action.

Plaintiff contends that: (1) Plaintiff is the holder of the Note and Beneficiary of the Deed of Trust Securing the Property; (2) The applicable law and the Deed of Trust authorize the entry of judgment of foreclosure and the sale of the property; (3) there is no triable issue of material fact as to Defendant’s defaults under the loan documents; (4) Plaintiff’s Deed of Trust is the Senior Lien and in first position, and there are no junior liens encumbering the property.

In support of this motion, Plaintiff submits:

• Memorandum of Points and Authorities; • Separate Statement of Undisputed Material Facts; • Declaration of Destinee Jackson; • Declaration of Danny; J. Oh, Esq.; • Appendix of Evidence; and • Request for Judicial Notice.

In Opposition, Defendant contends that there are triable issues in that: (1) Plaintiff’s own evidence contains a material inconsistency concerning the amount due; and (2) Plaintiff has not eliminated triable issues regarding its compliance with HBOR. If the Court concludes that additional discovery is needed to fully oppose the motion, Defendant requests a continuance under CCP § 437c(h). Facts essential to justify opposition likely exist in Plaintiffs possession, including loan- servicing records, internal loss- mitigation notes, application-status records, and the timeline of foreclosure-related activity.

In support of the Opposition, Defendant submits:

• Memorandum of Points and Authorities; • His own declaration; • A section in the opposition called “Separate Statement of Disputed Material Facts (see discussion of the opposition below).

Analysis

I. Standard

A plaintiff may move for summary judgment in any action or proceeding on the grounds that there is no defense to the action. Such a motion is well taken and should be granted if the papers submitted show that there is no triable issue as to any material fact and that plaintiff is entitled to a judgment as a matter of law. (CCP §§ 437c(a), (c).) The moving party bears the initial burden of production to make a prima facie case showing that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.)

A prima facie showing is one that is sufficient to support the position of the party in question: “No more is called for.” (Id. at 851.) This means that the plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 851.) Plaintiffs can meet their burden of showing there is no defense to the action by proving each element of their cause of action. (CCP §437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP §437c(p)(1); see, Aguilar v. Atlantic Richfield Co., supra, at 850.) Similarly, when the only disputed factual issues presented are unnecessary to the determination of a case, summary judgment should not be denied based on such issues. (See, Fretland v. County of Humboldt (1999) 69 Cal. App. 4th 1478, 1490; Yurick v.

Superior Court (1989) 209 Cal. App. 3d 1116, 1120.)

II. Request for Judicial Notice

Grant Plaintiff’s RJN of the following documents:

1. The Grant Deed recorded on March 13, 2023, as Instrument No. 2023-0072303, in the Official Records of the Recorder’s Office for Riverside

County, California (“Official Records”), evidencing Defendant SHAWN DARAE WATTS’s acquisition of the Property by Grant Deed dated November 4, 2022, a copy of Grant Deed which is set forth in the Appendix as Exhibit 1.

2. The Promissory Note dated March 10, 2023, executed by Defendant SHAWN DARAE WATTS in favor of American Pacific Mortgage Corporation in the original principal amount of $389,809.00 (“Note”), a copy of Note which is set forth in the Appendix as Exhibit 2.

3. The Deed of Trust dated March 10, 2023, recorded on March 13, 2023, as Instrument No. 2023-0072304, in the Official Records of the Recorder’s Office for Riverside County, California (“Deed of Trust”), a copy of Deed of Trust set forth in the Appendix as Exhibit 3.

4. The Assignment of Deed of Trust executed on or about July 20, 2024, and recorded on August 2, 2024, as Instrument No. 2024-0231443, in the Official Records, assigning the Deed of Trust to Plaintiff, a copy of Deed of Trust which is set forth in the Appendix as Exhibit 4.

5. The Deed of Trust executed by Defendant WATTS in favor of the Secretary of Housing and Urban Development, recorded on March 20, 2024, as Instrument No. 2024-0081067, in the Official Records (“HUD DOT 1”), a copy of HUD DOT 1 which is set forth in the Appendix as Exhibit 5.

6. The Notice of Federal Tax Lien in favor of the Internal Revenue Service, recorded on May 24, 2024, as Instrument No. 2024-0151801, in the Official Records (“IRS Lien”), a copy of IRS Lien which is set forth in the Appendix as Exhibit 6.

7. The Deed of Trust executed by Defendant WATTS in favor of the Secretary of Housing and Urban Development, recorded on January 8, 2025, as Instrument No. 2025-0006716, in the Official Records (“HUD DOT 2”), a copy of HUD DOT 2 which is set forth in the Appendix as Exhibit 7.

(Ev. Code §§ 152, 153.)

III. Merits

A. Elements of Cause of Action for Judicial Foreclosure

Judicial Foreclosure is appropriate where the foreclosing party demonstrates: 1) An obligation, such as execution of a note; 2) Execution and recordation of a mortgage or deed of trust; 3) Default by the mortgagor; and 4) interests, if any, of defendants other than the mortgagor to be foreclosed upon. (ING Bank FSB v. Chang Seob Ahn (N.D. Cal. 2010) 758 F.Supp.2d 936, 943.) Accordingly, a moving party is entitled to summary judgment in a judicial foreclosure matter when there is no triable issue of fact as to the

borrower’s default, and the moving party is entitled to foreclose under the note and deed of trust. (Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 470; RTC Mortg. Trust v. Shlens (1998) 62 Cal.App.4th 304, 312; ING Bank FSB v. Chang Seob Ahn, supra, 758 F.Supp.2d at 944.)

Under California Civil Code § 2924c, a judicial foreclosure is initiated when:

• The borrower is in default on the loan secured by the mortgage or deed of trust. • The lender (or trustee) files a petition in the superior court for foreclosure. • The court issues a writ of foreclosure and a writ of possession. • The property is sold at a public auction to the highest bidder, with the proceeds applied to the debt.

The Property. Here, the real property which is the subject of the Complaint for Judicial Foreclosure filed in this action is commonly known as 344 N San Gorgonio Avenue, Banning, California 92220 (“Property”). The legal description of the Property is set forth in the Complaint and is also included on page 6 of the Litigation Guarantee attached as Exhibit 10 to the concurrently filed Appendix of Evidence in support of Motion for Summary Judgment (“Appendix”).

The Parties. Plaintiff is a corporation formed under the laws of the State of Delaware and qualified to do business in the State of California. Moreover, as shown below, Plaintiff is the lawful owner and holder of the original Note evidencing the subject loan, and the beneficiary and holder of the beneficial interest in the Deed of Trust securing the Note and encumbering the Property. (UMF Nos. 1-3.)

Defendant Watts is the borrower with respect to the secured loan which is the subject of the Complaint for Judicial Foreclosure, and the owner of the Property. As shown by the Grant Deed dated November 4, 2022, and recorded in the Official Records of the County of Riverside on March 13, 2023, attached to the Appendix as Exhibit 1, Defendant Watts acquired the Property in 2023. Moreover, as shown by the Litigation Guarantee attached to the Appendix as Exhibits 10, respectively, Defendant Watts is the current owner of the Property. (UMF No. 1.)

Defendant Secretary of Housing and Urban Development (“HUD”) is an agency of the United States and has recorded two Deeds of Trust against the Property, as shown by the Official Records of the County of Riverside attached to the Appendix as Exhibits 5 and 7. (UMF No. 4.)

Defendant INTERNAL Revenue Service (“IRS”) is an agency of the United States and has recorded a Notice of Federal Tax Lien against the Property, as shown by the Official Records attached to the Appendix as Exhibit 6. (UMF No. 5.)

The Loan, and the Terms for the Repayment of the Secured Loan. In 2023, Defendant WATTS received a residential loan in the original principal amount of Three Hundred Eighty-Nine Thousand Eight Hundred Nine Dollars ($389,809.00) (“Loan”)

from American Pacific Mortgage Corporation (“Lender”). The documents evidencing the Loan include a Note dated March 10, 2023, in favor of Lender. (UMF No. 1.) (Collectively, the Note is referred to herein as the “Note.”) A copy of the Note is attached as Exhibit 2 to the Appendix.

The repayment of the indebtedness evidenced by the Note, and all renewals, extensions and modifications thereof, was and is secured by a Deed of Trust dated on or about March 10, 2023, executed by Defendant WATTS, as borrower and trustor, in favor of Lender, with Mortgage Electronic Registration Systems, Inc. (“MERS”), solely as nominee for the Lender and Lender’s successors and assigns and as beneficiary under the Deed of Trust. (UMF Nos. 2-3.) The Deed of Trust was recorded against the Property in the Official Records of the County of Riverside on March 13, 2023, as Document No. 2023-0072304. A copy of the Deed of Trust is attached to the Appendix as Exhibit 3.

On or about July 20, 2024, MERS executed an Assignment of Deed of Trust, assigning the Deed of Trust to Plaintiff SERVIS ONE, INC. DBA BSI FINANCIAL SERVICES (“Plaintiff”), and said Assignment was recorded in the Official Records of the County of Riverside on August 2, 2024, as Instrument No. 2024-0231443. (UMF No. 6.) A copy of the Assignment is attached as Exhibit 4 to the Appendix. Plaintiff is the current beneficiary under the Deed of Trust and the lawful owner and holder of the Note. (UMF Nos. 1-3.)

In addition, a Deed of Trust to the Secretary of Housing and Urban Development (“HUD”) executed by Defendant WATTS on or about February 5, 2024, was recorded in the Official Records of the County of Riverside on March 20, 2024, as Instrument No. 2024-0081067 (“HUD DOT 1”). (UMF No. 4.) A copy of HUD DOT 1 is attached to the Appendix as Exhibit 5.

A Notice of Federal Tax Lien in favor of the INTERNAL REVENUE SERVICE (“IRS”) was recorded in the Official Records of the County of Riverside on May 24, 2024, as Instrument No. 2024-0151801 (“IRS Lien”). (UMF No. 5.) A copy of the IRS Lien is attached to the Appendix as Exhibit 6.

A second Deed of Trust to HUD executed by Defendant WATTS on or about December 23, 2024, was recorded in the Official Records of the County of Riverside on January 8, 2025 as Instrument No. 2025-0006716 (“HUD DOT 2”). (UMF No. 4.) A copy of HUD DOT 2 is attached to the Appendix as Exhibit 7.

The recorded Deed of Trust and the Assignment of Deed of Trust to Plaintiff, as shown in the Official Records of Riverside County, confirm that Plaintiff’s lien is in first priority position. Additionally, the Litigation Guarantee issued by Westcor Land Title Insurance Company and its endorsement update verify that Plaintiff’s Deed of Trust is the senior lien on the Property. These records further show that, other than Plaintiff’s Deed of Trust, the only encumbrances on the Property are the HUD Deeds of Trust and the IRS lien, both of which are subordinate to Plaintiff’s lien. There are no other liens recorded against the Property that would impair Plaintiff’s senior position. (UMF No. 25.) Copies of the Grant Deed, Deed of Trust, Assignment, HUD Deeds of Trust, IRS lien,

and the Litigation Guarantee with endorsement update are attached as Exhibits 1 through 10 to the Appendix.

Pursuant to the terms of the Note, Defendant WATTS agreed to pay monthly installments of principal and interest in the amount of $2,528.29 on the first day of each month beginning May 1, 2023, until the maturity date of April 1, 2053, at which time any and all remaining amounts due under the Loan Documents are to be paid in full. (UMF No. 8.) Furthermore, interest for the Loan is charged at the rate of 6.750% on the unpaid principal balance, and Plaintiff is entitled to charge a late fee of 4.000% of the overdue amount of each payment. (UMF No. 8.)

Defendant WATTS failed to pay the installment due on February 1, 2025, and all subsequent months thereafter, up to and including the date of the Complaint. (UMF No. 13.) Beginning on or about March 19, 2025, formal written notices were provided of his default under the Loan Documents, and Defendant WATTS’s right to cure within thirtyfive (35) days before acceleration. Those notices stated that if Defendant WATTS failed to cure within the specified time, the maturity of the Note would be accelerated and full payment of all amounts due would be required, and that Plaintiff would pursue all remedies available, including foreclosure proceedings with respect to the Property. (UMF No. 14.) Copies of the written notices are attached to the Appendix as Exhibit 9.

Thereafter, additional communications were sent to WATTS regarding loss mitigation options and the delinquent status of his loan. Despite demand, WATTS failed and refused to pay the amounts owed. Plaintiff elected to declare the entire remaining sum of principal and interest immediately due and payable. (UMF No. 15.)

By the terms of the Deed of Trust, Defendant WATTS agreed to pay all taxes affecting the Property before delinquency and to maintain hazard insurance. From February 2025 to the present, Defendant WATTS failed and refused to pay the property taxes assessed by the County of Riverside and failed to renew and maintain hazard insurance. Plaintiff advanced sums for taxes and insurance to protect the Property and its security. (UMF Nos. 11.)

The above shows the elements of 1) An obligation, such as execution of a note; 2) Execution and recordation of a mortgage or deed of trust; 3) Default by the mortgagor and 4) interests, if any, of defendants other than the mortgagor to be foreclosed upon.

The problem is that while Plaintiff establishes that Defendant did default, the amount required to pay off the loan in full is seemingly stated inconsistently in moving papers.

First, Plaintiff states: As of April 15, 2026, the total amount required to pay the Loan in full was $429,909.29, based on Plaintiff’s official payoff calculation. This amount consisted of an unpaid principal balance of $382,350.19, accrued interest through April 15, 2026, in the amount of $33,030.12, escrow advances for taxes and insurance totaling $13,427.86, private mortgage insurance of $341.50, unpaid late charges of $505.65, and other fees totaling $595.47, together with any additional amounts required for lien release and recording. Interest has continued to accrue on the unpaid principal

balance at the daily rate of $70.81 from and after April 15, 2026, until entry of judgment, together with additional advances and escrow impound amounts incurred to protect the Property and preserve Plaintiff’s security interest, including but not limited to property taxes, hazard insurance, inspection fees, litigation costs, and attorneys’ fees. (UMF No. 16.) A true and correct copy of the Payoff Statement is attached to the Appendix as Exhibit 8.

Plaintiff may hereafter be required to expend additional sums to protect its security in the Property. Under the Loan Documents such sums constitute part of the indebtedness, and Plaintiff will amend to allege their nature and amount if additional expenditures are required. The Loan Documents also provide for an award of attorneys’ fees, costs and other legal expenses incurred to enforce Plaintiff’s rights, and Plaintiff has retained counsel to prosecute this action. (UMF No. 17.)

Plaintiff goes on to state:

Despite Defendant Watts’ obligations under the Loan Documents, Defendant Watts wholly failed and refused, and continues to fail and refuse, to pay the monthly installments due beginning February 1, 2025, leaving due and unpaid the principal balance of $382,350.19, plus the additional amounts as described below which accrued and continue to accrue after the default date. (UMF Nos. 9,11,13-16.) Furthermore, Defendant is also in default under the terms of the Loan by failing to pay the real property taxes due on the Property as required by and set forth in section 2 entitled “Funds for Taxes, Insurance and Other Charges” and section 4 entitled “Charges; Liens” on page 3 of the Deed of Trust (Exhibit 3).

From February 2025 to the present, Defendant Watts failed and refused to pay the property taxes assessed against the Property by the County of Riverside, which sums were then advanced by Plaintiff. In addition, Defendant Watts failed and refused to maintain hazard insurance on the Property, requiring Plaintiff to advance funds to keep the Property insured. (UMF No. 11.)

Additional Amounts due on Loan from and after February 1, 2025 (the date of default).

Additional Accrued Interest. Pursuant to the terms of the Note, interest accrues at the rate of 6.750% per annum on the unpaid principal balance of the Loan. (UMF No. 19.) That computes to a daily rate of interest due on the Loan of $70.81. (UMF No. 20.)

Attorneys’ Fees, Legal Expenses and Court Costs. Pursuant to the Note and the Deed of Trust, Plaintiff is also entitled to recover its attorneys’ fees, legal expenses and court costs in the enforcement of its rights under the Loan Documents, including to collect the amounts due on the Loan. (UMF No. 22.) Specifically, the Note (Exhibit 2) states at section 6(E) on page 2:

(E) Payment of Note Holder’s Costs and Expenses If the Note Holder has required me to pay immediately in full as describe above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in

enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys’ fees.

Moreover, section 13 on page 8 of the Deed of Trust (Exhibit 3) provides that the Lender may charge Borrower fees for services performed in connection with Borrower’s default, for the purpose of protecting Lender’s interest in the Property and rights under this Security Instrument, including, but not limited to, attorneys’ fees, property inspection and valuation fees. Section 18 on page 8 of the Deed of Trust (Exhibit 3) further provides that, as a condition of reinstatement after acceleration, Borrower must pay all expenses incurred in enforcing this Security Instrument, including reasonable attorneys’ fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender’s interest in the Property and rights under this Security Instrument.

Additionally, section 24 on page 11 of the Deed of Trust (Exhibit 3) authorizes the recovery of all expenses incurred in pursuing foreclosure remedies, including attorneys’ fees and costs of title evidence.

As of the date of this Motion, Plaintiff has incurred attorneys’ fees, paralegal fees, legal expenses and court costs in connection with the prosecution of this Judicial Foreclosure action, and additional fees will continue to accrue through the preparation of Reply papers, attendance at the hearing on this Motion, and post-hearing documents, including the Order and Judgment. (UMF Nos. 22-23.)

Amount presently due to pay off the loan.

As of April 15, 2026, the following unpaid principal, interest, fees and charges (excluding Plaintiff’s attorneys’ fees, legal expenses and court costs) are due and owing to Plaintiff from Defendant Watts pursuant to the terms of the Loan Documents:

(a) Unpaid Principal Balance: $382,350.19 (b) Accrued Interest through 04/15/2026: $33,020.47 *(c) Escrow Advances (Taxes and Insurance): $22,277.40)* (d) Private Mortgage Insurance (PMI): $341.50 (e) Unpaid Late Charges: $505.65 (f) Other Fees: $655.47 (opposition says $595.47) Total Amount Due as of 04/15/2026: $438,809.18 (UMF No.16.)

Furthermore, additional interest on the Loan will continue to accrue at the rate of 6.750% per annum, which computes to $70.81 per day, from January 17, 2026 through and until the date of entry of Judgment. (UMF Nos. 19-20.)

Additionally, as stated above and in the Declaration of Plaintiff’s counsel in support of this Motion, Plaintiff’s attorneys’ fees, legal expenses and court costs incurred to date in this action are substantial, and additional attorneys’ fees and expenses are expected to be incurred through the - preparation of Reply papers, attendance at the hearing on this Motion, and post-hearing documents, including the Order and Judgment. (UMF Nos. 21-22.)

INCONSISTENCIES IN MOVING PAYOFF FIGURES

One inconsistency seems to be the statement that Escrow Advances (Taxes and Insurance) are in the amount of $22,277.40. This figure is consistent with Ex. 8 to Appendix of Exhibits showing an escrow balance of $22,277.40. However, in another part of the Ps &As (page 14, lines 17-22) it is stated that the escrow balance for taxes and insurance is $13,427.86.

Another inconsistency is in the late fee. The motion and Ex. 8 state late fees as $655.47 (see Motion, page 10, line 18), yet another part of the Motion states late fees as $595.47. (Motion at page 14, line 21 referencing UMF 16. Ex. 16 is a billing statement and difficult to determine how the $595.47 figure is calculated.

Given the inconsistencies, without anything explaining the discrepancy by moving Plaintiff, the Court concludes that Plaintiff has not met its burden on this motion. Defaulting on the loan is the breach/default element of a cause of action for judicial foreclosure as well as part of damages and has not been established without any degree of certainty.

IV. Defendant’s opposing Separate Statement is procedurally defective

Defendant’s separate statement is located in the Opposition, page 8, lines 9-19. The opposition papers must include a separate statement responding to each of the material facts the moving party contends to be undisputed, and identifying any other material facts the opposing party contends are disputed. Each material fact must be followed by a reference to supporting evidence. (CCP § 437c(b)(3).)

Per CRC 3.1350(f):

The Separate Statement in Opposition to Motion must be in the two-column format.

(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits. (2) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is "disputed" or "undisputed."

An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers. (3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement.

The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by

the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Here, Defendant does not follow the two-column format, does not address each of the purportedly undisputed material facts, and does not cite to evidence in a way that is identifiable or able to be located easily by the Court. Defendant is disputing the lossmitigation notices sent by the Court and the calculation of amount due on the Note, but procedurally, the separate statement is not formatted correctly.

When a moving party makes the required prima facie showing, the opposing party's failure to comply with this requirement may, in the court's discretion, constitute a sufficient ground for granting the motion. (CCP § 437c(b)(3).)

The Court determines that due to the uncertainty of the payoff amount, Plaintiff has not met its burden, additionally, it seems that Defendant has created a triable issue even if it doesn’t state the reasons very clearly and doesn’t comply with the separate statement formatting requirements.

V. Deny Defendant’s request for a continuance under CCP § 437c(h)

If the opposing party shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented, the court shall deny the motion” or continue it for a reasonable period, or “make any other order as may be just.” (CCP § 437c(h).)

Here, Defendant does not make the requisite showing by declaration in that there is no declaration made pursuant to CCP § 437c(h).

VI. Defendant’s claim that there is a triable issue regarding HBOR and dual tracking

A. Issues framed by the pleadings: this defense is not in the Answer.

Defendant claims that there was a violation of CCP § 2923.6. As a preliminary matter, the Answer filed by Defendant on November 10, 2025 does not contain any affirmative defenses or mention of HBOR. In California, affirmative defenses are generally set forth in a responsive pleading (e.g., answer, special plea, or crosscomplaint) and must be raised there to be considered by the court. If either party wants the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend at or prior to the hearing on the motion. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) Defendant did not ask for leave to amend the Answer.

But even where leave to amend is not sought, the court may consider an unpleaded affirmative defense if the complaint alleges facts supporting the defense and the defense is fairly “raised and met” in the summary judgment papers. (Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 10 (disapproved on other grounds by Hoffman v. Young (2022) 14 Cal.5th 1257, 1270.)

Here, the Complaint does not seem to allege facts supporting the defense and the defense is not “raised and met” in the summary judgment papers. This may be because the Complaint was filed before the alleged HBOR violation.

B. Brief analysis of purported HBOR violation

CC § 2923.6(c) provides, in part:

If a borrower submits a complete application for a first lien 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 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.

Here, however, the Plaintiff had already filed a judicial foreclosure Complaint five months before the alleged complete application. While the January 27, 2026 letter presents a factual issue, it is not necessarily a material one.

The letters from BSI states:

January 27, 2026: application is complete and under review.

February 3, 2026: application is incomplete and additional information is required.

CC § 2923.6 defines a complete application by whether the borrower supplied all documents required by the servicer within the applicable reasonable timeframes.

Here, if the foreclosure complaint was already filed in August 2025, the January 2026 application cannot have been the application that triggered an obligation not to initiate that judicial foreclosure. If no subsequent notice of default, notice of sale, or trustee’s sale after January27, 2026, the Defendant cannot snow the particular conduct contemplated by CC § 2923.6.

Given the timing of the letters in connection with the date the Complaint was filed, Defendant has not established a triable issue of material fact, even if the Court considers this unpled affirmative defense.

Summary:

Deny motion for failure to establish with certainty the amount due on the loan.

4. CASE # CASE NAME HEARING NAME MOTION TO BE RELIEVED AS CVRI2600819 ZARATE vs AY MI PA COUNSEL FOR MARIBEL ZARATE Tentative Ruling:

Counsel is ordered to appear in person or via Zoom for an in-camera.