Filed 6/1/21 Poblete v. Specialized Loan Servicing 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
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BENJAMIN POBLETE et al., C082815
Plaintiffs and Appellants, (Super. Ct. No. SCV0036635)
v.
SPECIALIZED LOAN SERVICING LLC et al.,
Defendants and Respondents.
In August 2006, plaintiffs Benjamin and Inocencia Poblete entered into a refinance
agreement with Countrywide Home Loans (Countrywide) for $564,750 secured by a deed
of trust on their home. Bank of America, N.A. (Bank of America) serviced the loan until
May 2012 when it transferred the servicing rights to defendant Specialized Loan
Servicing (Specialized). Bank of New York was the trustee of the investment trust that
owned the loan. Plaintiffs eventually defaulted on the loan. They filed suit against Bank
of America, Specialized Loan Servicing, and Bank of New York for negligence and
intentional and negligent misrepresentation. The trial court sustained Bank of America’s
demurrer without leave to amend and granted Specialized and Bank of New York’s
1
motion for judgment on the pleadings. Plaintiffs appeal, arguing they sufficiently
pleaded their negligence cause of action and the trial court erred in denying leave to
amend.1 We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs entered into a refinance agreement with Countrywide in 2006.
Countrywide lent them $564,750 secured by a deed of trust. Bank of America serviced
the loan for the owner of the loan, Bank of New York until May 2012, when Bank of
America transferred the servicing rights to Specialized.
According to plaintiffs, in October 2009, Bank of America informed them of their
possible eligibility for a Home Affordable Modification Program (HAMP) loan
modification. Bank of America instructed plaintiffs to make three trial period payments
and to submit information to qualify for a permanent loan modification. Plaintiffs made
thirteen trial payments. However, Bank of America never offered them a permanent
HAMP modification. While plaintiffs made these payments, Bank of America proceeded
with foreclosure proceedings.
In May 2012, Specialized began servicing the loan. Specialized offered no
explanation as to why plaintiffs never received a final HAMP modification after
completing the trial period plan between 2009 and 2010. Plaintiffs allege that while
Specialized was aware they qualified for HAMP, they never asked plaintiffs to submit
another application for a loan modification.
In July 2015, plaintiffs filed a complaint against Bank of America, Specialized,
and Bank of New York alleging negligence in connection with their loan modification
request. Bank of America, Specialized, and Bank of New York demurred to the
1 Bank of America and plaintiffs filed a stipulation to dismiss the appeal in a related
case, case No. C081665 on October 2, 2018, which we granted.
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complaint. The day before the hearing on the demurrer, plaintiffs filed a first amended
complaint, reasserting their negligence cause of action and adding a claim for intentional
and negligent misrepresentation.
As to Bank of America, plaintiffs alleged that: (1) in October 2009, Bank of
America told them they might be eligible for HAMP; (2) plaintiffs submitted information
for the HAMP and were instructed to make three trial period payments; and (3) Bank of
America never sent a denial letter or offered them a loan modification. Plaintiffs also
alleged Bank of America was responsible for the negligence and negligent
misrepresentations of Specialized, which was acting as Bank of America’s agent.
The trial court sustained Bank of America’s demurrer without leave to amend to
both the negligence and misrepresentation claims. The court held that plaintiffs failed to
allege Bank of America owed them a duty of care and did not sufficiently allege
causation for a misrepresentation claim. The trial court entered judgment.
As to Specialized, plaintiffs alleged that Specialized failed to explain why Bank of
America did not offer them a permanent loan modification in 2009-2010 and failed to
solicit a new loan modification application from them after the servicing transfer. Bank
of New York’s involvement consisted of its role as the principal for which Specialized
acted as agent.
Specialized and Bank of New York filed a motion for judgment on the pleadings.
The trial court granted the motion. The court found plaintiffs’ first cause of action for
negligence and second cause of action for negligent or intentional misrepresentation both
failed to state a valid claim.2 The court entered judgment.
Plaintiffs filed a timely notice of appeal.
2Plaintiffs do not “for the purposes of this appeal, argue that their negligent
misrepresentation claim was sufficiently pleaded.”
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DISCUSSION
Standard of Review
A motion for judgment on the pleadings may be granted when the complaint does
not state sufficient facts to constitute a cause of action. (Code of Civ. Proc., § 438, subd.
(c)(1)(B)(ii).) It is similar to a demurrer, but brought after the time for filing a demurrer
has expired. (Code of Civ. Proc., § 438, subd. (f)(2).)
We apply the de novo standard of review. (International Assn. of Firefighters,
Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196.) We deem all alleged
facts to be true and we give the pleading a reasonable interpretation by reading it as a
whole, liberally construing the pleading with a view to attaining substantial justice.
(Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.)
We assume the truth of all facts properly pleaded in the complaint or reasonably
inferred from the pleading. We do not assume the truth of mere contentions, deductions,
or conclusions of law. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th
743, 751.) In addition, we consider facts of which the trial court properly took notice.
(Ibid.) Finally, we determine if those facts are sufficient, as a matter of law, to state a
cause of action under any legal theory. To prevail on appeal, a plaintiff must demonstrate
error by showing the properly pleaded facts are sufficient to establish each element of a
cause of action and to overcome all legal grounds of objection whether or not raised in
the trial court. (Id. at p. 752.)
We review the trial court’s denial of leave to amend for abuse of discretion. (Vaca
v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743.) The plaintiff must show
how the complaint can be amended and how amendment will change the legal effect of
the pleading. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39,
43.)
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Negligence
To prevail on a negligence claim, a plaintiff must plead and prove the defendants
owed them a legal duty, that the defendants breached the duty, and that the breach was a
proximate or legal cause of the plaintiff’s injuries. (Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 477.) Plaintiffs allege Specialized acted negligently in failing to explain
why Bank of America did not offer them a permanent loan modification in 2009-2010
and failed to solicit a loan modification application following the servicing transfer.
The trial court rejected these claims. The court found: “Plaintiffs fail to allege
facts demonstrating that [Specialized] exceeded its role as a financial institution in this
instance. Moreover, the allegation that plaintiffs suffered harm by not being provided the
opportunity to avail themselves of this loss mitigation option is directly contradicted by
the subsequent allegation that plaintiffs did in fact apply for a loan modification.”
In response, plaintiffs maintain: “A new servicer has the responsibility to at least
look at the file of the prior servicer and pick up where it left off. Many loan [sic] these
days go through multiple servicers and if necessary to state a cause of action to so allege
than leave to amend is requested. A prior servicer could have actually granted a full loan
modification in writing and the next day transferred the loan to a new servicer who
ignores the prior servicer’s agreement. Certainly when a prior servicer has initiated
foreclosure by recording a Notice of Default where has it ever been heard that the new
servicer ignores the prior Notice of Default and file a new Notice of Default. The new
servicer always take over the 90 day Notice of Default period from when it was issued
from the prior servicer. The new servicer is quick to look at the file to follow up and
enforce a pending Notice of Default but what about a duty to look at the file to see what
the status was of a modification application and complete it if it was pending or should
have been issued? A new servicer cannot or should not be allowed [sic] ignore what the
prior servicer promised. As such they owed a duty to [plaintiffs] to complete the promise
made by Bank of America.”
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Plaintiffs’ argument is both confusing and lacking in either factual or legal
support. Their first amended complaint sets forth no facts supporting their claim that
Specialized breached a duty to them. Plaintiffs claim Specialized, which became the loan
servicer in 2012, failed to explain Bank of America’s failure to offer a loan modification
in 2009-2010. The complaint does not state that plaintiffs requested the information or
that Specialized knew the reason for Bank of America’s decision not to offer a permanent
loan modification two years before. There was no breach of duty.
Plaintiffs also contend Specialized failed to solicit a loan modification from them
after the servicing transfer. However, as the trial court noted, plaintiffs did, in fact,
subsequently apply for a loan modification. Again, we find no breach of duty.
Nor does the complaint set forth facts showing causation or damages as a result of
the alleged breaches of duty. The complaint does not state what plaintiffs would have
done differently had Specialized explained why Bank of America did not offer them a
permanent loan modification two years earlier. Nor does the complaint allege how
plaintiffs would have benefited had Specialized offered them a new loan modification.
Instead, as noted, the complaint states that plaintiffs submitted a new loan modification.
In a brief aside, plaintiffs argue our opinion in Rossetta v. CitiMortgage, Inc.
(2017) 18 Cal.App.5th 628 (Rossetta) is applicable to Specialized “since they took over
for Bank of America. [Specialized] had a duty to complete what Bank of America
promised to do.”
In Rossetta, we held that a lender may owe a duty when it “voluntarily
undertake[s] to renegotiate a loan” because “the lender usually has greater bargaining
power and fewer incentives to exercise care.” (Rossetta, supra, 18 Cal.App.5th at
p. 640.) The lender in Rosetta refused to consider a loan modification application until
the borrower was three months delinquent, and the new lender directed the borrower’s
behavior in a way that exceeded the role of a conventional lender, including repeatedly
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requesting submission of the same documents and insisting that the borrower submit
nonexistent documents. (Id. at pp. 634, 641.)
However, plaintiffs do not allege a similar improper handling of a modification
negotiation on the part of Specialized. Instead, the complaint contains a single assertion:
“Recently the plaintiffs did submit an application for a loan modification but were told by
[Specialized] that they did not send in all the required documentation. This was false
because the plaintiffs did send in all of the required documentation.” Rossetta provides
no support for imposing a duty based on one discrete claim and we find no breach of duty
on the part of Specialized.3
Finally, plaintiffs argue the trial court abused its discretion in denying them leave
to file a second amended complaint. In denying leave to amend, the trial court found:
“The first amended complaint does not suggest on its face that it is capable of amendment
and plaintiffs have failed to make any showing that the first amended complaint can be
amended to change its legal effect.”
On appeal, plaintiffs fail to establish that there is a reasonable possibility that the
defects identified above can be cured by amendment. Accordingly, the trial court acted
within its discretion in denying leave to amend. (Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1126.)
3 The majority view among courts nationally appears to be that there is no tort duty of
care during a mortgage loan modification negotiation. (2 Madison et al., Law of Real
Estate Financing (2020) Subprime Loans, § 14:13.) The issue is before our Supreme
Court in Sheen v. Wells Fargo Bank, N.A. (2019) 38 Cal.App.5th 346, review granted
November 13, 2019, S258019. Even assuming a duty of care might hypothetically exist,
this single assertion is insufficient to allege a breach of duty.
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DISPOSITION
The judgment is affirmed. Specialized and Bank of New York shall recover costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
HOCH, J.
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