Crosby v. Aurora Loan Services CA3

Filed 5/27/14 Crosby v. Aurora Loan Services CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

CHRISTOPHER CROSBY, C071027

Plaintiff and Appellant, (Super. Ct. No. 34-2010- 00087199-CU-OR-GDS) v.

AURORA LOAN SERVICES, LLC,

Defendant and Respondent.

Plaintiff Christopher Crosby sued defendant Aurora Loan Services, LLC (Aurora), alleging Aurora failed to evaluate his request for a loan modification and to forebear from foreclosing on his home, allegedly in violation of an agreement between the two parties. The trial court sustained Aurora’s demurrer without leave to amend. Plaintiff appeals from the judgment of dismissal, contending he pleaded sufficient facts to proceed with his causes of action for breach of contract/promissory estoppel and breach of the implied covenant of good faith and fair dealing. We disagree with his contentions and affirm the judgment.

1

FACTS AND PROCEDURAL HISTORY On an appeal from a judgment of dismissal on a demurrer, we deem plaintiff’s factual allegations as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966- 967.) We also accept as true facts appearing in exhibits attached to the complaint, and, to the extent they conflict with the allegations in the pleading, we give them preference. (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-768.) In 2006, plaintiff refinanced the purchase of his home with a 30-year adjustable rate note and deed of trust in the amount of $1.5 million at 7.625 percent interest. Monthly payments were $10,616.91. In May 2009, plaintiff began experiencing financial difficulties, and he stopped paying on the note. The lender subsequently recorded a notice of default and, later, a notice of trustee’s sale. In January 2010, plaintiff contacted defendant Aurora, the entity that serviced plaintiff’s loan, to seek a loan modification. The parties entered into a “workout agreement” under which Aurora agreed not to foreclose upon the deed of trust for a period of roughly six months and to consider plaintiff’s request for a loan modification. In exchange, plaintiff agreed to make monthly payments of $8,046.67, beginning on February 10, 2010. The agreement expired on the date the sixth monthly payment was due; in this case, July 10, 2010. By that date, plaintiff had to reinstate the loan, pay it in full, or enter into a modification agreement Aurora may have offered him. If none of those actions occurred by that date, Aurora could resume foreclosure. Of significance here, the workout agreement made plaintiff’s payment of the six monthly payments a condition precedent to Aurora’s obligation to forebear from foreclosure and to consider a modification. If plaintiff failed to make any of the payments by their due dates and in the full amounts, Aurora could terminate the workout agreement immediately and without notice, and it could proceed with foreclosure. Plaintiff alleged he performed all of his obligations under the workout agreement. He specifically asserted he timely paid four monthly payments in the months of February,