Filed 4/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MICHAEL D. BILLESBACH, B296121
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC629369)
v.
SPECIALIZED LOAN SERVICING LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elizabeth Allen White, Judge.
Affirmed.
Lorden & Reed and Zshonette L. Reed for Plaintiff and
Appellant.
Reed Smith and Kasey J. Curtis for Defendant and
Respondent.
INTRODUCTION
Appellant Michael D. Billesbach and his late wife
obtained a home mortgage loan in 2006. Only appellant’s
wife signed the promissory note. Some time after appellant’s
wife died, appellant defaulted on the loan. According to
appellant, the mortgage servicer, respondent Specialized
Loan Servicing LLC, refused to communicate with him about
the loan because he was not the named borrower.
Respondent then initiated foreclosure proceedings by
causing a notice of default to be recorded. The notice
included a declaration that respondent had diligently tried
to communicate with appellant about alternatives to
foreclosure in accordance with Civil Code section 2923.55.1
Respondent later scheduled a foreclosure sale of the
property.
Appellant filed this action under the California
Homeowner Bill of Rights (HBOR; § 2923.4 et seq.), seeking
to enjoin the foreclosure proceedings. He claimed
respondent had violated the HBOR by failing to assign him a
“single point of contact” (§ 2923.7), failing to communicate
with him regarding foreclosure alternatives before recording
a notice of default (§ 2923.55), and recording a false
declaration of compliance (§ 2924.17). Respondent
postponed the foreclosure sale and agreed to review
appellant’s application for a loan modification. Ultimately, it
offered appellant a trial-period modification plan and gave
1 Undesignated statutory references are to the Civil Code.
2
him a deadline to accept the offer by making his first
payment. Appellant did not make his initial payment by the
deadline, however, opting instead to attempt to obtain more
favorable terms, without seeking to postpone the foreclosure
sale. In a conversation with appellant’s counsel, an attorney
for respondent suggested that appellant present terms
acceptable to him. About three weeks later, minutes before
the foreclosure sale was scheduled to take place, appellant’s
counsel submitted his offer to respondent. The foreclosure
sale proceeded as planned, and the property was purchased
by a third party. Appellant sought to enjoin the recording of
the sale, but the trial court denied his application, and the
sale was recorded.
Appellant then filed an amended complaint, adding an
allegation that respondent had violated the HBOR by
conducting the foreclosure sale while his loan-modification
application was still pending (§ 2923.6), and seeking
damages for respondent’s alleged violations. Respondent
moved for summary judgment, and the trial court granted
the motion. The court concluded that appellant’s claims
under sections 2923.55 and 2923.6 failed because those
provisions had been repealed after appellant filed his action.
Alternatively, it concluded that respondent had remedied
any material HBOR violation before the foreclosure sale, and
that the sale resulted from appellant’s failure to accept the
offered trial-period modification plan. After learning that
the Legislature had reenacted sections 2923.55 and 2923.6,
3
appellant moved for reconsideration, but the trial court
denied his motion.
On appeal, appellant contends: (1) respondent failed to
cure its pre-sale violations because it did not record a new
notice of default after communicating with him; (2)
respondent violated section 2923.6 by conducting the
foreclosure sale while the parties were still in negotiations
regarding a loan modification; and (3) given the Legislature’s
restoration of sections 2923.55 and 2923.6, the court erred in
denying reconsideration. We reject each of appellant’s
contentions.
First, by its terms, the HBOR creates liability only for
material violations that have not been remedied before the
foreclosure sale is recorded. A material violation is one that
affected the borrower’s loan obligations, disrupted the
borrower’s loan-modification process, or otherwise harmed
the borrower. Based on these principles, we hold that where
a mortgage servicer’s violations stem from its failure to
communicate with the borrower before recording a notice of
default, the servicer may cure these violations by doing what
respondent did here: postponing the foreclosure sale,
communicating with the borrower about potential
foreclosure alternatives, and fully considering any
application by the borrower for a loan modification.
Following these corrective measures, any remaining
violation relating to the recording of the notice of default is
immaterial, and a new notice of default is therefore not
required to avoid liability. We do not endorse respondent’s
4
conduct in failing to communicate with appellant before
initiating foreclosure proceedings and failing to comply with
other statutory requirements. Mortgage servicers should
take care to comply with their statutory obligations in the
first instance, rather than seek to cure violations after a
borrower has sued them. We conclude only that appellant
has provided no basis for liability under the HBOR.
As for the claimed section 2923.6 violation, the statute
prohibits mortgage servicers from proceeding with the
foreclosure process while a borrower’s application for a loan
modification is pending. On the record before us, we
conclude respondent complied with this requirement as a
matter of law by conducting the foreclosure sale only after
appellant failed to accept an offered trial-period modification
plan. Neither the continued communications between the
parties following the expiration of the offer, nor appellant’s
last-minute offer on the eve of the sale, revived the expired
offer or rendered appellant’s application “pending” for
purposes of the statute.
Finally, given our conclusions and the trial court’s
consideration of the merits of appellant’s claims, the
reinstatement of sections 2923.55 and 2923.6 did not
warrant reconsideration. We therefore affirm.
5
BACKGROUND
A. The Loan and Respondent’s Initiation of Foreclosure
Proceedings
In 2006, appellant and his wife, Darlina E. Billesbach,
took out a home equity line of credit secured by the couple’s
home in Lancaster. Only Mrs. Billesbach signed the
promissory note, but both she and appellant executed the
deed of trust securing it. After Mrs. Billesbach’s death in
2008, appellant continued to make monthly payments on the
loan. Respondent began servicing the loan in 2011.
According to respondent, appellant defaulted on the
loan in early 2015. In February 2016, appellant made a
monthly payment, but respondent returned the payment and
advised him that the loan was in arrears and it could not
accept anything less than the full amount due. According to
appellant, he contacted respondent to inquire about the
status of the loan and work out a payment arrangement, but
despite informing respondent that his wife had died, was
told he could not receive any information because he was not
the named borrower.
About two months later, in April 2016, respondent
initiated non-judicial foreclosure proceedings by causing a
notice of default to be recorded.2 Included with the notice of
2 “[S]ections 2924 through 2924k provide a comprehensive
framework for the regulation of a nonjudicial foreclosure sale
pursuant to a power of sale contained in a deed of trust.”
(Moeller v. Lien (1994) 25 Cal.App.4th 822, 830 (Moeller).) “The
(Fn. is continued on the next page.)
6
default was a declaration of compliance with section 2923.55,
stating that respondent had “exercised due diligence to
contact the borrower . . . to ‘assess the borrower’s financial
situation and explore options for the borrower to avoid
foreclosure.’”3 The declaration identified appellant and his
wife as the borrowers. Appellant’s daughter attempted to
contact respondent on his behalf, but respondent would not
speak with her. In July 2016, respondent caused a notice of
sale to be recorded, setting a foreclosure sale of the property
for the following month.
B. Appellant’s Lawsuit and Subsequent Application for
a Loan Modification
In August 2016, days before the scheduled foreclosure
sale, appellant filed a complaint against respondent,
asserting violations of the HBOR and seeking injunctive
relief. On appellant’s application, the trial court issued a
foreclosure process is commenced by the recording of a notice of
default and election to sell by the trustee. (Civ. Code, § 2924;
[citation].) After the notice of default is recorded, the trustee
must wait three calendar months before proceeding with the sale.
(Civ. Code, § 2924, subd. (b); [citation].) After the 3-month period
has elapsed, a notice of sale must be published, posted and
mailed 20 days before the sale and recorded 14 days before the
sale. (Civ. Code, § 2924f; [citation].)” (Moeller, supra, at 830.)
3 As discussed more fully below, section 2923.55 requires
mortgage servicers to contact the borrower in person or by phone,
or diligently attempt to do so, before recording a notice of default.
(§ 2923.55, subds. (a), (b)(2) & (f).)
7
temporary restraining order to enjoin the foreclosure sale
and ordered respondent to show cause why it should not
issue a preliminary injunction.
Around the same time, appellant’s counsel sent
respondent a written request to review appellant for a loan
modification. In response, respondent assigned a service
representative to serve as appellant’s “single point of
contact,” and advised the court that it was willing to review
appellant for a loan modification.4 In September 2016,
appellant submitted a loan-modification application to
respondent, and over the next month, provided additional
documents at respondent’s request, until his application was
complete. Because his application was under review,
appellant took the scheduled hearing on his request for a
preliminary injunction off calendar.
In November 2016, respondent denied appellant’s
application for a loan modification, but informed him he
could apply for a second, independent review to determine
his eligibility. Appellant took advantage of this option and
appealed respondent’s initial denial of his application.
4 A single point of contact is an individual or team of
personnel responsible for, inter alia, instructing the borrower on
the procedures for seeking foreclosure-prevention alternatives,
coordinating receipt of necessary documents from the borrower,
and informing the borrower of the status of any
foreclosure-prevention alternative. (§ 2923.7, subds. (b) & (e).)
8
C. Respondent’s Offer of a Trial-Period Modification
Plan
On December 19, 2016, following its review of
appellant’s appeal, respondent sent appellant a letter
(erroneously addressed to Mrs. Billesbach’s estate), offering
him a “Trial Period Modification Plan.” This plan required
appellant to make three timely monthly payments of about
$1,000, an estimate of the payment respondent would
require under the modified loan terms when finalized.
Under the trial-period modification plan, respondent would
not conduct a foreclosure sale as long as appellant continued
to make timely trial-period payments. If appellant made all
timely payments and met certain other conditions,
respondent would offer him a permanent modification
agreement. As part of any permanent modification
agreement, respondent would waive all unpaid late charges.
Respondent advised appellant that to accept the trial-
period modification plan, he was required to make his initial
payment by January 25, 2017: “To accept this offer, you
must make new monthly trial period payments. To qualify
for a permanent modification, you must make the trial
period payments in a timely manner and the loan must
maintain an insurable lien position post recording of the
modification. [¶] . . . [¶] The initial payment must be
received in our office no later than January 25, 2017. Your
failure to [make a payment] by January 25, 2017 will result
in [respondent] rescinding our Trial Period Modification
Plan offer. [¶] . . . [¶] We must receive each payment, in
9
the month in which it is due. If you miss a payment or
do not fulfill any other terms of your trial period, this
offer will end and your mortgage loan will not be
modified.” On December 23, 2016, four days after sending
this offer to appellant, respondent notified him that it was
postponing the foreclosure sale to February 27, 2017, at
11:00 am.
D. Subsequent Communications Between the Parties
and the Foreclosure Sale
On January 9, 2017, appellant’s counsel contacted
appellant’s assigned single point of contact, sought
information about the loan balance, expressed that the
amount of the offered trial-period payments was too high,
and advocated for a lower payment amount.5 Counsel did
not seek an extension of the deadline for acceptance of
respondent’s offer. The representative informed counsel that
a loan modification was a means to bring a loan out of
default and did not guarantee a lower payment. She then
told counsel she needed to look into the matter in order to
provide additional information. After counsel did not hear
back from the representative, counsel attempted to contact
5 Respondent’s representative initially told appellant’s
counsel she would have to speak with respondent’s attorney
because appellant’s case was in litigation. However, after
appellant’s counsel informed the representative that the attorney
had directed her to contact respondent directly, the
representative agreed to speak with her.
10
both respondent and its attorney in the litigation below,
Tanya McCullah, without success. By the end of January
25, 2017, appellant had not made the initial payment under
the offered trial-period modification plan. Thus, by its
terms, respondent’s offer was rescinded.
On February 7, 2017, after the deadline to accept
respondent’s offer had passed, appellant’s counsel spoke with
McCullah and expressed appellant’s desire for more
favorable terms. McCullah suggested that appellant’s
counsel “detail the terms of a loan modification that
[appellant] would accept[,] and she would forward it to her
client.” Appellant’s counsel did not seek and McCullah did
not agree to postpone the foreclosure sale.
On February 27, at 10:54 am, minutes before the
scheduled foreclosure sale, appellant’s counsel sent
McCullah a “CONFIDENTIAL SETTLEMENT
COMMUNICATION,” laying out repayment terms that
would be acceptable to appellant. Respondent proceeded
with the foreclosure sale as planned, and the property was
sold to a third party. Appellant filed an ex parte application,
asking the court to void the foreclosure sale and enjoin
respondent from recording it. However, the trial court
denied appellant’s application, and the trustee’s deed
following the foreclosure sale was later recorded.
11
E. Appellant’s Operative Complaint and Respondent’s
Motion for Summary Judgment
Appellant filed an amended complaint in October 2017,
alleging violations of the HBOR and seeking damages.
Appellant claimed respondent had failed to assign him a
single point of contact in a timely manner as required by
section 2923.7, failed to contact him by phone or in person
before recording a notice of default as required by section
2923.55, recorded a false declaration in violation of section
2924.17, and conducted the foreclosure sale while his
loan-modification application was still pending in violation of
section 2923.6.
In June 2018, following discovery, respondent moved
for summary judgment, contending it had cured any
material pre-sale violations by postponing the foreclosure
sale, assigning appellant a single point of contact,
communicating with him about foreclosure alternatives,
reviewing his application for a loan modification, and
offering him a trial-period modification plan. It claimed it
could not be liable for any cured violations under the HBOR.
Respondent further contended that it was free to proceed
with the sale after appellant failed to accept the offer by the
deadline. Additionally, respondent observed that on
January 1, 2018, sections 2923.55 and 2923.6 were repealed
pursuant to sunset provisions, and thus argued that
appellant could not maintain claims relating to violations of
these provisions.
12
Opposing the motion, appellant argued that
respondent had not cured its violations because it did not file
a new notice of default after communicating with him, and
that his loan-modification application remained pending at
the time of the foreclosure sale. He claimed the substantive
protections of sections 2923.55 and 2923.6 continued to be
enforceable, despite their repeal.
In November 2018, the trial court granted summary
judgment for respondent. On appellant’s motion for
clarification, the court later issued a revised ruling, which
included additional discussion but did not change the
disposition. The court concluded that appellant could not
recover for violations of sections 2923.55 and 2923.6 because
they were no longer effective. The court nevertheless
proceeded to consider the merits of appellant’s claims. It
concluded that respondent had remedied any material
pre-sale violations by postponing the foreclosure sale,
assigning appellant a single point of contact, and considering
appellant’s application for a loan modification. It further
concluded that the foreclosure sale resulted from appellant’s
failure to accept respondent’s offer.
F. Appellant’s Motion for Reconsideration
In December 2018, after learning that the Legislature
had reenacted section 2923.55 and 2923.6 in September and
that they were set to take effect on January 1, 2019,
appellant moved for reconsideration. He argued this
13
legislation constituted new law that required the trial court
to reevaluate its ruling.
The trial court denied appellant’s motion for
reconsideration, concluding, inter alia, that the new
legislation would not have affected its ruling. The court
entered judgment for respondent, and appellant timely
appealed.
DISCUSSION
A. The Grant of Summary Judgment
Appellant claims respondent materially violated his
rights under the HBOR by: (1) recording a notice of default
without attempting to contact him (§ 2923.55); (2) failing to
establish a single point of contact in a timely manner
(§ 2923.7); (3) including a false declaration of compliance in
the notice of default (§ 2924.17); and (4) conducting a
foreclosure sale while his application for a loan modification
was still pending (§ 2923.6). As explained below, we
conclude respondent sufficiently cured its pre-sale violations
under sections 2923.55, 2923.7, and 2924.17, and did not
violate the dual-tracking prohibition of section 2923.6.
1. General Principles
“Summary judgment is appropriate only where ‘no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th
14
607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.) “‘“We review
the trial court’s decision de novo, considering all the evidence
set forth in the moving and opposing papers except that to
which objections were made and sustained.”’” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We
liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Ibid.)
In interpreting a statute, “‘[o]ur fundamental task . . .
is to determine the Legislature’s intent so as to effectuate
the law’s purpose.’” (Jarman v. HCR ManorCare, Inc. (2020)
10 Cal.5th 375, 381.) “‘We first examine the statutory
language, giving it a plain and commonsense meaning. We
do not examine that language in isolation, but in the context
of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of
the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language
permits more than one reasonable interpretation, courts may
consider other aids, such as the statute’s purpose, legislative
history, and public policy.’” (Ibid.)
Here, we interpret the HBOR. The Legislature enacted
the HBOR in 2012, while California was “still reeling from
the economic impacts of a wave of residential property
foreclosures that began in 2007.” (Stats. 2012, ch. 87, § 1,
subd. (a).) This legislation sought to “modify[] the
15
foreclosure process to ensure that borrowers who may
qualify for a foreclosure alternative are considered for, and
have a meaningful opportunity to obtain, available loss
mitigation options.” (Id., § 1, subd. (b).) Many sections of
the HBOR were subject to sunset provisions, causing them to
be automatically repealed on January 1, 2018. Affected
portions of the legislation included sections 2923.55, 2923.6,
and 2924.12. (Former §§ 2923.55, subd. (i), 2923.6, subd. (k),
2924.12, subd. (k).) However, effective January 1, 2019, the
Legislature reenacted these provisions and expressed its
intent that their prior repeal would not release liability
previously incurred. (Stats. 2018, ch. 404, §§ 6-7, 26.)6
2. Respondent Sufficiently Cured Its Pre-Sale
Violations Under Sections 2923.55, 2923.7, and
2924.17
Respondent does not dispute, for purposes of this
appeal, that it failed to follow the HBOR’s pre-sale
procedures under sections 2923.55, 2923.7, and 2924.17
before appellant filed this action. It contends, however, that
it cured any pre-sale violation by postponing the sale and
allowing appellant to pursue foreclosure alternatives. We
agree that respondent cured the material aspects of its pre-
6 We deny appellant’s request for judicial notice of this
legislation, as “[w]e take notice of the public statutory law of this
state without a request . . . .” (County of Los Angeles v. Hill
(2011) 192 Cal.App.4th 861, 866, fn. 3.)
16
sale violations as a matter of law and is thus not subject to
liability for them. Following respondent’s curative
measures, any uncured violation relating to the premature
recording of the notice of default caused appellant no
meaningful harm and is therefore not actionable.
a. Principles
Among other things, the HBOR requires mortgage
servicers to contact (or diligently attempt to contact) the
borrower in person or by phone before recording a notice of
default, in order to assess the borrower’s financial situation
and explore options to prevent foreclosure. (§ 2923.55,
subds. (a), (b)(2) & (f).)7 When a servicer records a notice of
7 Section 2923.55 generally applies only to larger mortgage
servicers. (See § 2923.55, subd. (g) [“This section shall not apply
to entities described in subdivision (b) of Section 2924.18”];
§ 2924.18, subd. (b) [describing certain entities who foreclosed on
175 or fewer residential properties in preceding year].) Section
2923.5, which is substantively similar to section 2923.55, applies
to smaller servicers. (See § 2923.5, subd. (g) [“This section shall
apply only to entities described in subdivision (b) of Section
2924.18”].)
Before the HBOR’s enactment in 2012, section 2923.5
covered both large and small lenders but was limited to loans
made between 2003 and 2007. (Former § 2923.5, subd. (i).) The
former version of section 2923.5 included no express private right
of action, but in Mabry v. Superior Court (2010) 185 Cal.App.4th
208, 214 (Mabry), the court held one was implied in the statute.
Section 2924.19 now provides an express private right of action
for material violations of section 2923.5. (§ 2924.19, subds.
(a) & (b).)
17
default, the notice must generally include a declaration that
the servicer has contacted the borrower or has tried to do so
with due diligence. (Id. at subd. (c).) The required
declaration must “be accurate and complete.” (§ 2924.17,
subd. (a).) If a borrower requests a foreclosure-prevention
alternative, the servicer must promptly establish a single
point of contact and provide the borrower a direct means of
communication with that point of contact. (§ 2923.7, subd.
(a).) The HBOR also prohibits mortgage servicers from
proceeding to the next step in the foreclosure process while a
borrower’s complete application for a loan modification is
pending (§ 2923.6, subds. (c) & (e)), a practice commonly
known as “‘dual tracking’” (Jolley v. Chase Home Finance,
LLC (2013) 213 Cal.App.4th 872, 904 (Jolley)).
When a mortgage servicer commits a “material
violation” of these provisions, the HBOR allows the borrower
to sue for injunctive relief before a foreclosure sale is
recorded and for monetary damages after the sale has been
recorded.8 (§ 2924.12, subds. (a) & (b).) Neither the HBOR
nor California caselaw expressly defines the term “material”
for purposes of section 2924.12. However, federal district
courts applying California law have held that 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
8 Under section 2924.12, subdivision (e), a violation of the
HBOR’s provisions does not “affect the validity of a sale in favor
of a bona fide purchaser . . . for value without notice.”
18
efforts to avoid foreclosure. (See, e.g., Cardenas v. Caliber
Home Loans, Inc. (N.D.Cal. 2017) 281 F.Supp.3d 862, 870
(Cardenas) [no material violation where plaintiff alleged no
facts suggesting that statutory breaches “‘affected [her] loan
obligations,’ disrupted [her] loan modification process, or
caused [her] to suffer harm that [she] would not have
suffered otherwise”]; Galvez v. Wells Fargo Bank, N.A.
(N.D.Cal. Oct. 4, 2018, No. 17-cv-06003-JSC) 2018 U.S.Dist.
LEXIS 172087, at *12 (Galvez) [applying Cardenas’s
standard].) In other words, the HBOR creates no liability for
a technical violation that does not thwart its purposes.
California caselaw involving the materiality requirement is
consistent with this rule. (Compare Schmidt v. Citibank,
N.A. (2018) 28 Cal.App.5th 1109, 1124, fn. 7 (Schmidt) [if
borrower had opportunity to discuss financial situation and
foreclosure alternatives with lender, purpose of statute is
met, and any violation by lender in failing to initiate contact
was not material] with Berman v. HSBC Bank USA, N.A.
(2017) 11 Cal.App.5th 465, 472 [lender materially violated
HBOR by sending borrower letter affording him shorter time
than required by statute to appeal initial denial of loan
modification, which “effectively diminished” borrower’s right
to appeal].)
Section 2924.12, subdivision (c) encourages mortgage
servicers to cure any material violation by providing a safe
harbor: “A mortgage servicer . . . shall not be liable for any
violation that it has corrected and remedied prior to the
recordation of the [foreclosure sale] . . . .” (Ibid.) Thus, in
19
the context of damages liability, the material effect of a
violation must be measured after the foreclosure sale is
recorded. By the statute’s terms, a temporary disruption of
the normal foreclosure process that is corrected and causes
no lasting harm to the borrower’s rights will give rise to no
liability.
b. Analysis
After appellant filed his lawsuit, respondent postponed
the foreclosure sale, provided appellant with a single point of
contact, communicated with him about foreclosure
alternatives, reviewed his loan-modification application, and
ultimately offered him a trial-period modification plan.9
These curative measures satisfied the HBOR’s purpose to
ensure that borrowers have a meaningful opportunity to
obtain loss-mitigation options. (See Schmidt, supra, 28
Cal.App.5th at 1124, fn. 7.) It is true that respondent
remained in technical non-compliance with the HBOR: it
communicated with appellant only after it recorded its notice
of default, and its declaration of compliance was inaccurate
9 For the first time at oral argument, appellant’s counsel
suggested that the single point of contact’s lack of responsiveness
during and after their January 9, 2017, conversation constituted
a violation of section 2923.7. By failing to present and develop
this argument in his briefs, appellant has forfeited any
contention in this regard. (See Haight Ashbury Free Clinics, Inc.
v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554,
fn. 9 [“We do not consider arguments that are raised for the first
time at oral argument”].)
20
at the time it was recorded. Yet appellant offered no
evidence that these pre-sale violations affected his loan
obligations, disrupted his loan-modification process, or
otherwise harmed him, despite appellant’s subsequent
remedial actions. Absent any meaningful harm to appellant,
respondent’s uncured violations were not material. (See
Schmidt, supra, at 1124, fn. 7; Cardenas, supra, 281
F.Supp.3d at 870; Galvez, supra, 2018 U.S.Dist. LEXIS
172087, at *12.)
Appellant argues respondent’s uncured violations were
material because, as a matter of law, they rendered the
notice of default, and thus the ensuing foreclosure sale,
invalid. He claims that to cure its pre-sale violations,
respondent was required to file a new notice of default after
affording him the opportunity to apply for a loan
modification. We disagree.
In the context of a notice of sale, federal district courts
have held that when an otherwise valid notice is recorded in
violation of the HBOR’s requirements, the notice is not void,
and the violation may be cured without recording a new
notice. (See, e.g., Gilmore v. Wells Fargo Bank N.A.
(N.D.Cal. 2014) 75 F. Supp.3d 1255, 1265-1266 [notice of
sale recorded in violation of dual-tracking prohibition is not
void; “[o]nce the violation is remedied [by acting on the
pending loan-modification application], Wells Fargo would
be free to proceed with the foreclosure” (id. at 1266)]; Jerviss
v. Select Portfolio Servicing, Inc. (E.D. Cal. Nov. 25, 2015,
No. 2:15-CV-01904-MCE-KJN) 2015 U.S.Dist. LEXIS
21
159630, at *14-16 [defendants not liable for recording notice
of sale in violation of dual-tracking prohibition because they
remedied violation by postponing sale, considering
borrower’s application, and denying it in writing]; Hestrin v.
CitiMortgage, Inc. (C.D.Cal. Apr. 7, 2016, No. CV 16-1974-
GW(GJSx)) 2016 U.S.Dist. LEXIS 189495, at *12 [no
material violation where “‘even if there was a brief period of
dual tracking [following recording of notice of sale], [servicer]
corrected and remedied it by fully evaluating [borrower’s]
second loan modification application’”].) We see no reason a
different rule should apply to a notice of default. Requiring
a servicer to record a new, identical notice of default
following full consideration of the borrower’s
loan-modification application would do nothing to further
the HBOR’s purpose.
In support of his position that a servicer must record a
new notice of default to cure prior violations, appellant cites
Mabry, supra, 185 Cal.App.4th 208. There, the Court of
Appeal held that non-compliance with the pre-HBOR version
of section 2923.5 rendered a notice of default invalid.10
(Mabry, supra, at 223.) The court then remanded the matter
and instructed the trial court, if it determined the servicer
had violated section 2923.5, to postpone the foreclosure sale
until the servicer complied with the statute and filed a new
notice of default. (Mabry, at 237.) Mabry is inapposite.
10 As noted, former section 2923.5’s substantive provisions
were largely similar to those of current section 2923.55.
22
Initially, beyond its mere instruction to the trial court, the
Mabry court did not meaningfully discuss whether
subsequent compliance with the statute could cure prior
violations without a new notice of default. Indeed, the
servicer had not attempted to cure the alleged violations
(id. at 215-217), and it does not appear from the court’s
opinion that the parties even raised the issue. Moreover,
Mabry did not assess the required remedial measures
through the lens of section 2924.12’s materiality
requirement. Former section 2923.5 included no express
private right of action. In concluding that a private right of
action was nevertheless implied in the statute, the court
relied in part on section 2924g, subdivision (c)(1)(A), which
set forth grounds for postponement of a foreclosure sale,
including the “open-ended possibility that any court of
competent jurisdiction may issue an order postponing the
sale.” (Mabry, at 223.) Neither former section 2923.5 nor
section 2924g included a materiality requirement, and the
court never addressed such a requirement. Accordingly,
Mabry is not instructive on the issues in this case.
In his reply brief, appellant notes that about 10 months
passed between the April 2016 recording of the notice of
default and the February 2017 foreclosure sale. He suggests
that had respondent filed a new notice of default after
complying with section 2923.55’s pre-notice requirements (as
early as September 2016, according to the parties), it is
possible that the sale would not have taken place for another
10 months after the new notice, making the sale of his home
23
“premature.” In assessing the materiality of respondent’s
violations, however, the question is whether the violations
harmed appellant, not whether a particular remedy he seeks
might have provided a greater benefit to which he was not
entitled under the statute. Indeed, appellant does not
dispute respondent’s contention that under the HBOR,
recording a new notice of default would not have required
delaying the February 2017 foreclosure sale. Moreover,
respondent’s violations, the resulting litigation, and
respondent’s consideration of appellant’s application and
appeal were responsible for much of the gap between the
notice of default and the foreclosure sale. The record offers
no reason to assume a new notice of default would have
delayed the sale further. In short, respondent cured its
material pre-sale violations as a matter of law and is thus
not liable for them under section 2924.12.11 Any remaining
technical violation of the HBOR’s pre-sale requirements is
not actionable.
11 Appellant points to various statements in the trial court’s
ruling he asserts are erroneous. We review the correctness of the
trial court’s decision, not the correctness of every statement in its
written ruling. (See Mike Davidov Co. v. Issod (2000) 78
Cal.App.4th 597, 610 [“an appellate court reviews the action of
the lower court and not the reasons given” and “there can be no
prejudicial error from erroneous logic or reasoning if the decision
itself is correct”].) Given our conclusions, on de novo review, that
appellant’s claims fail as a matter of law, the relevant statements
by the trial court could not warrant reversal, even assuming
arguendo that they were erroneous.
24
3. Respondent Did Not Violate Section 2923.6’s
Dual-Tracking Prohibition
Appellant argues respondent violated section 2923.6’s
dual-tracking prohibition, claiming his application for a loan
modification was still pending at the time of the foreclosure
sale because the parties were still in negotiations for a loan
modification. Again, we disagree.
a. Principles
Under the practice of dual tracking, financial
institutions continue to pursue foreclosure while evaluating
a borrower’s loan modification application. “The result is
that the borrower does not know where he or she stands, and
by the time foreclosure becomes the lender’s clear choice, it
is too late for the borrower to find options to avoid it.”
(Jolley, supra, 213 Cal.App.4th at 904.) Section 2923.6 bars
this practice and regulates servicers’ consideration of
loan-modification applications.
Section 2923.6, subdivision (c) provides that if a
borrower submits a timely application for a loan
modification, the servicer may not take certain steps,
including conducting a foreclosure sale, while the application
is “pending.” (Ibid.) Further defining this proscription, the
provision states that a servicer may not conduct a
foreclosure sale until: (1) the servicer denies a loan
modification in writing, and any appeal period has expired;
(2) the borrower does not accept an offered loan modification
within 14 days of the offer; or (3) the borrower accepts a
25
loan-modification offer but later breaches his or her
obligations under the offer. (§ 2923.6, subd. (c).)
Under subdivision (d) of section 2923.6, if a servicer
denies a borrower’s application for a loan modification, it
must afford the borrower at least 30 days to appeal the
servicer’s initial denial. (Ibid.) As relevant here, if the
borrower appeals, subdivision (e) instructs that the servicer
may not conduct a foreclosure sale until “the later of 15 days
after the denial of the appeal or 14 days after a . . . loan
modification is offered after appeal but declined by the
borrower, or, if a . . . loan modification is offered and
accepted after appeal, the date on which the borrower fails to
timely submit the first payment or otherwise breaches the
terms of the offer.” (§ 2923.6, subd. (e)(2).) To minimize the
risk for abuse of these procedures by a borrower, subdivision
(g) of section 2923.6 provides that after a servicer has
evaluated a borrower’s application in accordance with the
statute’s requirements, it is not obligated to evaluate a
successive application, unless there has been a material
change in the borrower’s financial circumstances.
b. Analysis
The record establishes as a matter of law that
appellant’s application for a loan modification was no longer
pending at the time of the foreclosure sale. Under the
statute, a servicer may conduct a foreclosure sale when “the
borrower does not accept an offered . . . loan modification
within 14 days of the offer” (§ 2923.6, subd. (c)(2)) or “14
26
days after a . . . loan modification is offered after appeal but
declined by the borrower” (id., at subd. (e)(2)). After
appellant appealed respondent’s initial denial of his
application, respondent offered him a trial-period
modification plan, giving him until January 25, 2017, to
accept the offer by making his first payment. Respondent
advised appellant in no uncertain terms that if it did not
receive payment by that date, the offer would “end,” he
would not qualify for a permanent modification, and his loan
would not be modified. Appellant’s counsel contacted
respondent and advocated for more favorable terms, but
neither requested nor received an extension of the deadline.
By the end of January 25, appellant had not submitted his
first payment. He therefore failed to accept respondent’s
offer, and the offer expired on that day, according to its
terms. Respondent thus provided appellant a clear answer
regarding his application, regardless of his continued hope
that respondent would change its mind and offer him
different terms. Appellant’s rejection by default of
respondent’s offer constituted the final step in the statutory
process under section 2923.6, subdivisions (c) and (e).
In arguing that his application remained pending,
appellant relies on his counsel’s February 7, 2017,
conversation with Tanya McCullah, respondent’s attorney in
the litigation below. In that conversation, McCullah
suggested that appellant’s counsel “detail the terms of a loan
modification that [appellant] would accept[,] and she would
forward it to her client.” Despite appellant’s knowledge that
27
the foreclosure sale was scheduled to take place on February
27, his counsel did not seek to postpone the impending sale
(and McCullah did not agree to do so); nor did counsel
submit an offer to McCullah until minutes before the
scheduled foreclosure sale, some three weeks after their
conversation. Based on his counsel’s interaction with
McCullah, appellant argues there is “a question of fact as to
whether the request for a counter offer constitutes continued
negotiation.”
However, whether communications between the parties
constituted “continued negotiation” is not the standard
under section 2923.6. Appellant offers no authority for this
standard, and we are aware of none. As outlined above, the
statute provides a clear framework to determine whether an
application is pending. Nothing in the statute suggests that
continued interactions between a servicer and borrower
following the expiration of a loan-modification offer -- much
less the borrower’s extension of a new offer thereafter -- can
revive the original offer or extend the pendency of the
borrower’s application.12
Nor would such an approach accord with the statute’s
purpose. Making a servicer’s ability to proceed with the
foreclosure process turn on whether continued
12 Appellant relies solely on the statutory framework of
section 2923.6 and does not contend that his reliance on
representations by respondent gave rise to equitable estoppel.
We therefore do not consider the application of that doctrine to
the facts of this case.
28
communications fall under the nebulous concept of
negotiations would create uncertainty and hinder the
borrower’s ability to “know where he or she stands.” (Jolley,
supra, 213 Cal.App.4th at 904.) This rule would also
incentivize servicers to cut off any non-required
communications with borrowers following the denial of an
application or rejection of an offer, thereby reducing
borrowers’ chances of obtaining foreclosure alternatives.
Appellant alternatively claims that respondent made
him no offer for a loan modification because (1) a trial-period
modification plan “is just the first step toward a loan
modification,” and (2) the offer was addressed to his late
wife’s estate. Appellant offers no reason why an offer for a
trial-period modification plan would not constitute a loan-
modification offer for purposes of section 2923.6, and we see
no reason it would not. Nothing in the language of the
statute excludes a trial-period modification plan. And as
explained, respondent’s offer accomplished the purpose of
the statute by informing appellant of respondent’s intention
to proceed with foreclosure proceedings absent his
acceptance and compliance with the terms of the offer.
While the trial-period modification plan was not itself a
permanent modification plan, it was the only path to
permanent modification respondent offered appellant -- a
path he failed to take.
As for the offer being misaddressed, appellant does not
dispute that he understood the offer was directed to him,
and his counsel’s attempts to negotiate its terms on his
29
behalf underscore his understanding. Thus, appellant
cannot establish that this mistake constituted a material
violation for purposes of section 2924.12. Accordingly, we
conclude respondent did not violate section 2923.6’s
dual-tracking prohibition.
B. The Denial of Reconsideration
Appellant challenges the trial court’s denial of his
motion for reconsideration based on new law, contending
that the reenactment of sections 2923.55 and 2923.6
warranted a different result. The trial court, however, had
already considered the potential application of those
provisions, and concluded appellant could not demonstrate
respondent had materially violated them. As discussed
above, we agree that appellant cannot establish actionable
violations of these provisions. Accordingly, appellant’s
motion offered no new law warranting reconsideration.13
(See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500
13 Appellant additionally seeks to challenge the denial of his
ex parte application to enjoin the recording of the foreclosure
sale. But given that the foreclosure sale was recorded in March
2017, this challenge is moot. (See City of Cerritos v. State of
California (2015) 239 Cal.App.4th 1020, 1031 [“An appeal from
an order denying an injunction may be dismissed as moot if the
act sought to be enjoined is performed while the appeal is
pending”]; County of Los Angeles v. Butcher (1957) 155
Cal.App.2d 744, 746 [“Whether an injunction restraining the sale
of real property should be granted becomes a moot question on
appeal where in the meantime the property has been sold”].)
30
[reconsideration not warranted where movant presented no
authorities “that were not considered by the trial court when
it issued its initial orders”]; Robbins v. Los Angeles Unified
School Dist. (1992) 3 Cal.App.4th 313, 318 [party challenging
denial of reconsideration must establish injury from claimed
error].)
31
DISPOSITION
The judgment is affirmed. Each party shall bear its
own costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
32