Graff v. CitiMortgage CA2/6

Filed 8/4/16 Graff v. CitiMortgage CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

RICHARD L. GRAFF et al., 2d Civil No. B263825 (Super. Ct. No. 56-2012-00421241) Plaintiffs and Appellants, (Ventura County)

v.

CITIMORTGAGE, INC., et al.,

Defendants and Respondents.

Richard and Roberta Graff appeal the judgment entered in favor of CitiMortgage, Inc. (CitiMortgage), after a non-jury trial on appellants’ complaint for violation of statutory duties, unfair business practices, fraud and promissory estoppel. Appellants contend the trial court erred when it limited their time to cross-examine a defense witness and refused to admit “key” exhibits into evidence. They further contend the trial court erred when it found CitiMortgage had not agreed to accept payment to “cure past due payments,” and that many of the trial court’s determinations “are not supported by any evidence.” We affirm. Facts In December 1986, appellant purchased a house on Elizabeth Drive in Ventura. By May 2009, their loan was being serviced by CitiMortgage. Appellants missed some monthly payments, but brought their loan current on roughly a quarterly basis.

CitiMortgage mailed appellants a loan statement on July 19, 2011, notifying them that the amount due on August 1, 2011 would be $5,552.12. Appellant Richard Graff testified that he called CitiMortgage on July 30, 2011 and spoke with an employee named Raul. Appellant asked for an extension of time to make the past-due May, June and July payments on the loan. Raul told appellant he could grant a one-time extension to August 5, 2011. Appellant told Raul he would make the payment at a Citibank branch. Raul said that the amount due would be $4,278.94 and it would have to be paid in cash or by certified check or money order. CitiMortgage’s contemporaneously prepared service notes of the same telephone conversation reflect no agreement to grant an extension to August 5, 2011. Instead, the notes reflect that appellant owed $4,278.94 for the May, June and July payments. During the call, the service notes reflect that appellant stated his intention to make a payment at a branch on August 5. He “declined any kind of payment arrangement[,]” and “did not complete any loss mitigation options or provide detail of his income and expenses.” On August 3, 2011, CitiMortgage considered appellants’ loan to be more than 90 days delinquent. It referred the loan to its trustee, Cal-Western Reconveyance Corporation (Cal-Western), for foreclosure. Appellant went to a Citibank branch on the afternoon of August 5, 2011 and attempted to make a payment on the loan of $4,278.94. The clerk would not accept appellant’s payment because it was less than the total amount then due and the loan had been referred to foreclosure. Appellant spoke with another CitiMortgage employee on the telephone who informed him the loan had been “sold” to Cal-Western. She gave appellant a telephone number to contact Cal-Western for the reinstatement amount. Appellant testified that he called Cal-Western twice for the reinstatement amount but Cal- Western would not give it to him. The representative told appellant she would fax him the amount, but that fax was never received. The lender’s service notes indicate that appellants never requested a reinstatement amount, forbearance agreement or repayment plan from CitiMortgage.