BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al.

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard at 1:30 pm in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

(833) 568-8864

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendants SN Servicing Corporation (“SNSC”) and US Bank Trust National Association as Trustee of the Bungalow Series IC Trust (“Defendants”) motion for summary judgment or, in the alternative, summary adjudication is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the issues identified in the Notice of Motion, which of moving defendant’s Undisputed Material Facts, and/or which of opposing plaintiff’s Additional Material Facts will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

material fact. ***

Moving counsel failed to comply with California Rules of Court, rule 3.1350(g), requiring a separately bound volume of evidence (including all declarations) with a table of contents when the evidence exceeds 25 pages.

Moving counsel failed to comply with California Rules of Court, rule 3.1350(b), which requires that each issue presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Moving counsel includes only three issues for summary adjudication in the notice of motion, but includes four issues in the Separate Statement. (Notice at 2:15-28; Separate Statement at 2:8-10, 8:9-18.)

Defendants’ unopposed request for judicial notice is granted for the limited purposes permitted for judicial notice. (See, Evid. Code §451, subd. (a); §452, sub. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

I.

Background

This is a wrongful foreclosure action relating to Plaintiff Omar Bermudez’s (“Plaintiff”) real property located at 864 Oak Lane, Rio Linda, California.

Plaintiff alleges that on November 16, 2021, he submitted a complete loan modification application to SNSC. (FAC, ¶ 12.) On December 1, 2021, SNSC allegedly sent Plaintiff a letter verifying that Plaintiff submitted a complete loan modification application. (Id., ¶ 13.) On December 21, 2021, Plaintiff alleges he received a letter from SNSC indicating that he had been approved for a loan modification, that he would receive a formal offer with terms and conditions of the approval, and that he would have to accept or reject the modification offer within 14 days of receipt of that letter. (Id., ¶ 14.)

Plaintiff allegedly the Modification Trial Period Plan (“TPP”) was mailed to Plaintiff on December 28, 2021, and he received it on January 3, 2022. (Id., ¶ 15.) Plaintiff alleges that the TPP required Plaintiff to make the first good faith payment by no later than December 31, 2021, which was three days before he received the offer. (Ibid.) The TPP allegedly provided that Plaintiff must return the first regular monthly payment and the signed TPP by no later than February 1, 2022. (Id., ¶ 16.) Plaintiff allegedly contacted SNSC immediately to inquire about the down payment that had been due on December 31, 2021. (Ibid.)

On January 14, 2022, Ms. Dani Coe, an Asset Manager with SNSC, emailed Plaintiff and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

informed him that “the offer is already defaulted and I will be reaching out to the investor to find if they want to allow you to still send in all funds that were required to allow trial modification to continue forward [sic].” (Id., ¶ 17.)

Plaintiff alleges that he did not hear back from SNSC following the January 14, 2022 email, and instead received a letter indicating it was unable to grant a modification to Plaintiff on January 17, 2022, which was still within the time frame to accept the TPP. (Id., ¶ 18.) Plaintiff allegedly contacted SNSC to obtain clarification, but no one would speak to him. (Ibid.) On January 25, 2022, SNSC allegedly sent Plaintiff another letter stating that he had defaulted during the TPP by failing to make the trial period payments as provided in the TPP. (Id., ¶ 19.)

Plaintiff alleges that Ms. Coe emailed Plaintiff on the same day and indicated that his only option was to submit an appeal letter and the investor would determine if the investor would approve to resurrect the offer. (Id., ¶ 20.) Plaintiff further alleges that he still had not defaulted on sending in the signed TPP, because it was not due until February 1, 2022. (Ibid.)

Plaintiff filed his original complaint on April 21, 2023. The operative FAC was filed on September 21, 2023, alleging causes of action for (1) violation of Civil Code section 2923.7; (2) violation of Business and Professions Code section 17200 et seq.; (3) wrongful foreclosure; and (4) cancellation of written instrument. On February 22, 2024, the Court sustained Defendants’ demurrer as to the fourth cause of action without leave to amend. This matter is currently set for trial on April 21, 2026.

Moving Papers. Defendants’ notice of motion sets forth three issues for summary adjudication. First, Defendants argues that Plaintiff’s first cause of action for violation of Civil Code section 2923.7 fails as a matter of law because Plaintiff cannot show that Defendants engaged in a material violation of Section 2923.7 or produce evidence that he suffered any actual economic damages as a result of the alleged violation. Defendants also argue that the evidence shows that Plaintiff was provided with a single point of contact (“SPOC”) as required by Section 2923.7.

Second, Defendants contend that Plaintiff’s third cause of action for wrongful foreclosure fails as a matter of law because Plaintiff fails to prove that Defendants caused an illegal, fraudulent or willfully oppressive foreclosure sale and because he failed to tender. Finally, Defendants argue that Plaintiff’s second cause of action for violation of Business and Professions Code section 17200 fails as a matter of law because Plaintiff’s other causes of action fail. Defendants also present an additional issue for summary adjudication that was not listed in the notice of motion and argue that the timing of the receipt of the trial payment plan is irrelevant to Plaintiff’s claims.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Opposition. Plaintiff argues that he raises a number of triable issues of fact that preclude summary judgment or adjudication. Specifically, Plaintiff contends Defendants violated Civil Code section 2923.7 in its communications with Plaintiff as they failed to provide Plaintiff with access to individuals with the ability and authority to stop the foreclosure proceedings, failed to provide him with current, timely, and accurate information regarding the status of the foreclosure prevention alternative, and failed to adequately communicate regarding the foreclosure prevention process and deadlines. Plaintiff argues these facts also preclude summary adjudication of his second and third causes of action.

Reply. Defendants argue that Plaintiff has not shown that his damages were caused by Defendant’s failure to carry out its duties under Civil Code section 2923.7 and that Plaintiff has not established that Defendant’s purported violation of Section 2923.7 was material. Defendants also argue Plaintiff has failed to raise a triable issue of fact with respect to his first cause of action. Finally, Defendants contend Plaintiff’s third cause of action for wrongful foreclosure fails as Plaintiff has presented no evidence that the underlying foreclosure was “entirely unauthorized.”

II.

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [defendant’s] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California (2007) 151 Cal.App.4th 168, 176-177.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., §437c(p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v.

Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at pp. 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, 25 Cal.4th at p. 854-855, n.23; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c, subd. (p); see generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that California Rule of Court, Rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure section 437c, subdivision (f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

Additionally, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at p. 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

Finally, before turning to the specific issues raised by this motion, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).)

IV.

Discussion

A. Defendant’s Motion for Summary Adjudication

As noted above, Defendants’ motion for summary adjudication fails to comply with California Rules of Court, rule 3.1350(b), which requires that each issue presented for summary adjudication be stated in the notice of motion and then repeated verbatim in the separate statement. Rule 3.1350(b) states, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).) A movant’s failure to comply with the requirements of a separate statement, in the Court’s discretion, may constitute a sufficient ground for denying the motion. (Code Civ. Proc. § 437c, subdivision (b)(1).)

Defendants’ notice of motion asserts three issues for summary adjudication. However, the separate statement asserts an additional issue for summary adjudication as Issue 3, stating “The timing of Plaintiff’s receipt of the Trial Payment Plan is irrelevant to Plaintiff’s claims.” Initially, the Court notes that this does not appear to be a proper ground for summary adjudication as it does not “completely dispose[] of a cause of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 473c, subd. (f)(1).) Not only is this issue omitted from the notice of motion, but as a result of its inclusion, the Issues 3 and 4 asserted in the notice of motion no longer correspond to those listed in the separate statement. Additionally, Issue 2 in the notice of motion, which addresses Plaintiff’s second cause of action, does not match Issue 2 in the separate statement, which addresses Plaintiff’s third cause of action.

Finally, none of the issues asserted in the notice of motion are repeated verbatim in the separate statement. Instead, the notice of motion indicates each issue fails because Plaintiff is “unable to establish each element of the cause of action and no triable issue as to any material fact remains” (Notice at 2:17-18, 21-23, 26-27.). Meanwhile, the separate statement indicates Plaintiff’s causes of action “fail[] as a matter of law because plaintiff cannot establish the required elements.” (Separate Statement at 2:9-10; 8:9-18.)

Thus, Defendants have failed to comply with Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350(b). Because it is moving party’s sole responsibility to comply with the California Rules of Court in its moving papers, the Court, in its discretion, denies Defendants’ alternative motion for summary adjudication.

As a result, all that remains is Defendants’ motion for summary judgment. If Defendants’ fail to demonstrate that they are entitled to summary judgment as to any of Plaintiff’s causes of action, the motion must be denied.

B. Violation of Civil Code section 2923.7

Civil Code section 2923.7 requires a mortgage servicer to “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” when a borrow requests a foreclosure prevention alternative. (Civ. Code, § 2923.7, subd. (a).) The single point of contact is responsible for:

(1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options.

(2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application.

(3) Having access to current information and personnel sufficient to timely,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative.

(4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any.

(5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary.

(Id., subd. (b)(1)-(5).)

Material violations of Civil Code section 2923.7 are actionable. (Civ. Code, § 2924.12, subd. (b) [“After a trustee’s deed upon sale has been recorded, a mortgage servicer . . . shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section . . . 2923.7 . . . by that mortgage servicer . . . where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale”].) A violation is material if “it affected the borrower’s loan obligations, disrupted the loan-modification process, or otherwise harmed the borrower in connection with the borrower’s efforts to avoid foreclosure.” (Billesbach v. Specialized Loan Servicing LLC (2021) 63 Cal.App.5th 830, 845.)

UMFs 11 through 18 concern the TPP and the communications that occurred from the time the TPP was approved on December 21, 2022 through the end of January 2022. The UMFs assert the following facts. On December 21, 2021, SNSC sent Plaintiff a correspondence informing him that he was approved for a loan modification and would shortly receive a formal offer or agreement. (UMF 11.) SNSC sent Plaintiff the TPP on December 28, 2021. (UMF 12.) Plaintiff did not accept the TPP pursuant to the terms stated therein and did not tender the first payment due. (UMF 13.)

On January 7, 2022, Plaintiff sent SNSC a correspondence rejecting the TPP and presenting a counteroffer with completely different terms. (UMF 14.) SNSC did not accept Plaintiff’s counteroffer. (UMF 15.) On January 10, 2022 and January 14, 2022, SNSC informed Plaintiff that the terms of the TTP were not negotiable. (UMF 16.) On January 24, 2022, SNSC again informed Plaintiff that the terms of the TPP were not negotiable and that his counteroffer was rejected. (UMF 17.) Plaintiff was told that if he wanted to accept the terms offered in the TPP, he could submit a letter with that request for review. (Ibid.)

On January 25, 2022, SNSC sent Plaintiff a correspondence stating that it was unable to grant Plaintiff’s request for modification of the Loan.

Plaintiff offers the following relevant, unopposed[1] Additional Material Facts (“AMF”) in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

reply. On December 21, 2021, SNSC sent Plaintiff a correspondence notifying him that he had been approved for a loan modification that would have to be accepted within fourteen days of receipt of the offer. (AMF 5.) Plaintiff received the modification offer on January 2, 2022. (AMF 6.) On January 14, Ms. Coe informed Plaintiff that the offer was already defaulted and she would need to determine whether Plaintiff could tender the funds to allow the modification to continue. (AMF 7.) On January 17, 2022, on the fourteenth day after Plaintiff received the offer letter and before Ms. Coe got back to Plaintiff, Defendant sent Plaintiff a correspondence denying Plaintiff a modification. (AMF 9.)

As an initial matter, it is unclear from the evidence provided whether the TPP was purportedly rejected by Plaintiff’s counter-offer on January 7, 2021, as argued by Defendants in reply, whether Plaintiff defaulted on the TPP by failing to return the signed TTP within 14 days of receipt, as required by the December 21, 2021 correspondence (AMF 5; See also Plaintiff’s Appendix of Exhibits (“Appendix”), Ex. 1, Declaration of Omar Bermudez (“Bermudez Decl.”), Ex. A), or indeed whether the offer was even valid after Plaintiff failed to make the first “good faith payment” that was due on December 31, 2021, prior to his receipt of the TPP. (Defendants’ Compendium of Exhibits (“COE”), Ex. 39.)

The December 21, 2021 correspondence indicating that Plaintiff had been approved for a loan medication states in bold print, “You must accept or reject the formal loss mitigation agreement within 14 days of receipt.” (Appendix, Ex. 1, Bermudez Decl., Ex. A.) It is undisputed that Plaintiff received the modification on January 3, 2022. (AMF 5.) Thus, pursuant to the timeline set forth by this correspondence, Plaintiff had until January 17, 2022 to accept or reject the TPP. Therefore, Ms. Coe’s January 14, 2022 correspondence, which indicates that “the offer is already defaulted and I will be reaching out to the investor to find if they want to allow you to still send in all funds that were required to allow trial modification to continue forward,” appears to indicate that Plaintiff had missed his deadline to accept the offer in contradiction of the timeline set forth in the December 21, 2021 correspondence. (Appendix, Ex. 1, Bermudez Decl., Ex.

C.)

The TPP itself required Plaintiff to make a “good faith payment” on December 31, 2021. Plaintiff allegedly contacted Defendant immediately to inquire about the down payment that had been due on December 31, 2021. (FAC, ¶ 16.) Plaintiff later testified that he could not accept the TPP because the terms had already expired. (Appendix, Ex. 7, p. 53:15-20.) Defendants presents no evidence that directly addresses Plaintiff’s allegation that he attempted to obtain information about whether the offer was even valid since he

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

missed the first “good faith payment.” In their moving papers, Defendants argue that Plaintiff testified that “his response to receiving the TPP was not to contact Defendants to attempt to accept its terms and tender the required payments, even if late, but to have his son write a letter requesting different terms, including lower payments and a lower interest rate,” citing UMF 14. (Memorandum at 13:26-14:2.) However, in the cited deposition testimony, Plaintiff testifies only that he did not sign the TPP and that he and his son sent a letter modifying the terms of the agreement. (COE, Ex. 45, p. 55:7- 56:18.)

He does not provide any testimony regarding whether or not he attempted to contact Defendants as he alleged in his FAC or whether SNSC timely responded to Plaintiff’s alleged attempt to contact it. Nor do Defendants present any UMFs or evidence regarding whether the TPP was still valid notwithstanding Plaintiff’s immediate default on the payment terms set forth in the document.

To the extent Defendants contend that Plaintiff’s January 7, 2021 counteroffer was a rejection of the TPP that terminated his right to accept the offer, the Court notes that Defendants present no evidence in their separate statement that would support a finding that SNSC construed the counteroffer as a rejection of the TPP such that it terminated Plaintiff’s ability to accept the offer. In fact, Ms. Coe’s January 14, 2022 correspondence stating “the offer is already defaulted” indicates that Plaintiff was unable to accept the offer due to his default, rather than because the offer was terminated by the counteroffer. (Appendix, Ex. 1, Bermudez Decl., Ex. C.)

Defendant’s January 17 and January 25, 2022 notices to Plaintiff also fail to clearly state the reasons for denial of the loan modification. (See Appendix, Ex. 4, 5; COE, Ex. 41.) The January 25, 2022 notice indicates that the loan modification was denied as a result of Plaintiff’s “Withdrawn Request or Non-Acceptance of Offer.” (Appendix, Ex. 5; COE, Ex. 41.) The notice states, “You have withdrawn the request for consideration of the modification or not accepted the offer made by SN Servicing Corporation.

Failure to make the first trial period payment in a timely manner is considered non-acceptance of the Trial Period Plan.” (Ibid.) Based on this description, Plaintiff’s modification could have been denied because he failed to make the December 31, 2021 payment, because his counteroffer was construed as a withdrawal of the request, or because he failed to accept the TPP by January 17, 2022.

Defendants’ argument that the alleged breaches of Civil Code section 2923 were immaterial because the foreclosure sale occurred nearly 10 months after Plaintiff failed to obtain the loan modification is rejected. Defendants rely on Billesbach, supra, 63 Cal.App.5th 830 and Reese v. Select Portfolio Servicing, Inc. (2024) 107 Cal.App.5th 1179 for the proposition that where there is a significant gap between the alleged

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

violation and any subsequent sale, such a gap renders the violation immaterial. Initially, the Court notes that neither case holds that 10 months between the failure to modify a loan and foreclosure sale renders statutory violations of the Home Owner’s Bill of Rights or Section 2923.7 immaterial as a matter of law. Additionally, in Billesbach, the court found that the mortgage loan servicer “cured the material aspects of its presale violations [of Civil Code section 2923.55, 2923.7, and 2924.17] as a matter of law and is thus not subject to liability for them.” (Billesbach, supra, 63 Cal.App.5th p. 844.) Here, Defendants do not argue that they cured any alleged violations of Section 2923.7. Thus, Billesbach is inapplicable to the instant matter.

Reese is also inapplicable in that it concerns dual tracking violations under Section 2923.6 and an 18-month delay before the foreclosure sale. In Reese, the court found that “the 18-month delay until SPS re-initiated foreclosure proceedings against Reese rendered the November 2016 dual tracking violation immaterial. That delay in this case meant that the dual tracking violation did not harm Reese in any meaningful sense in her efforts to avoid foreclosure.” (Reese, supra, 107 Cal.App.5th at p. 1188.)

The instant matter concerns violations of Section 2923.7 and only a 10-month delay. The Court cannot conclude based on the authorities presented that a 10-month delay is sufficient to render violations of Section 2923.7 immaterial as a matter of law. Therefore, Defendants have failed to establish that Plaintiff’s claims cannot proceed because they he alleges only immaterial violations of Section 2923.7.

Because Defendants UMFs fail to clearly establish the relevant deadlines and conditions for accepting the TPP and how it communicated those to Plaintiff, the Court cannot conclude, based on the evidence presented, that Plaintiff’s SPOC “timely, accurately, and adequately inform[ed] [Plaintiff] of the current status of the foreclosure prevention alternative” or that the violation was not material as it appears to have “disrupted the loan-modification process.” (Civ. Code, § 2923.7; Billesbach, supra, 63 Cal.App.5th at p. 845.) Accordingly, the Court denied Defendants’ motion to summary as Defendants failed to clearly establish that Plaintiff does not possess and could not possess evidence to show a material violation of Section 2923.7.

Additionally, although Defendants contend that Plaintiff also cannot show that he incurred economic damages, the Court notes that Defendants had the initial burden to establish that Plaintiff cannot prove an element of his cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at pp. 853-855.) None of the UMFs or evidence presented in the separate statement directly addresses the issue of Plaintiff’s damages. (See, generally, UMFs 1-26.) As stated above, Defendants are reminded of the Golden

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Rule of summary judgment: “If it is not set forth in the separate statement, it does not exist.” (Zimmerman, supra, 131 Cal.App.4th at p. 1477.) Defendants cannot shift the burden to Plaintiff by merely suggesting that he will be unable to prove his damages. Instead, Defendants must make an “affirmative showing” that Plaintiff will be unable to produce evidence in support of his damages. (Aguilar, supra, 25 Cal.4th at p. 854-855, n. 23.) Thus, Plaintiff’s allegation that he was damaged by the loss of equity in his home is unchallenged. Therefore, Defendants have not met their burden to show that Plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. As a result, the motion for summary judgment is also denied as Defendants have failed to meet their initial burden with respect to Plaintiff’s damages.

Although the Court concludes that Defendants’ failed to meet their initial burden as discussed above, the Court notes that Defendants’ own evidence and Plaintiff’s AMFs also raise triable issues of material fact that preclude summary judgment. As previously discussed, there are issues of fact regarding whether the offer was even valid when Plaintiff received it, whether he was able to accept the TPP within the relevant timeframe, and whether the information communicated to him by Ms. Coe regarding the status of his loan modification was timely, accurate, and adequate.

Additionally, based on Plaintiff’s uncontradicted evidence, he was never able to obtain the information necessary to accept the TPP. (AMF 18.) This raises an issue of fact as to whether these were material violations of Civil Code section 2923.7, as it does appear the SNSC alleged failures in communication disrupted Plaintiff’s loan-modification process.

With respect to the element of causation (e.g. whether SNSC’s conduct caused Plaintiff’s damages), the Court notes that “causation is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 212 [citations and quotations omitted].) Here, in light of the issues of fact identified above, the Court cannot conclude as a matter of law that Defendants’ conduct did not cause Plaintiff to suffer economic damages. Thus, the motion is denied as Defendants have also failed to show that Plaintiff will be unable to establish the element of causation.

Because Defendants have failed to show they are entitled to summary judgment as to Plaintiff’s first cause of action, they cannot show that they are entitled to summary judgment on the entirety of Plaintiff’s FAC. Thus, the Court need not address the parties’ arguments as to the remaining causes of action.

Accordingly, Defendant motion for summary judgment or alternatively summary

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV000213: BERMUDEZ vs SN SERVICING CORPORATION, A BUSINESS ENTITY, et al. 12/24/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 28

adjudication is DENIED for the reasons stated above.

V.

Disposition

Defendants’ motion for summary judgment, or alternatively summary adjudication, is DENIED in its entirety.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, Plaintiff shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c, subdivision (g).

[1] Defendants did not file any objections to evidence and did not file a response to any

of Plaintiff’s AMFs.