(Super. Ct. No. 30-2008-00114411) Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge.
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part, and remanded. Request for judicial notice. Denied. Motion to strike. Granted in part and denied in part.
After Pam Ragland lost her home through foreclosure, she sued defendants U.S. Bank National Association (U.S. Bank), the successor in interest to the Federal Deposit Insurance Corporation (FDIC) as the receiver for Downey Savings and Loan Association (Downey Savings); DSL Service Company (DSL), the trustee under the deed of trust; and DSL's agent, FCI Lender Services, Inc. (FCI). (We refer to U.S. Bank, DSL, and FCI collectively as Defendants.) She asserted causes of action for negligent misrepresentation, fraud, breach of oral contract, violation of Civil Code section 2924g, subdivision (d) (section 2924g(d)), intentional and negligent infliction of emotional distress, and rescission of the foreclosure sale. Ragland appeals from the judgment entered after the trial court granted Defendants' motion for summary judgment and summary adjudication.
Applying basic contract and tort law, we reverse the judgment in favor of U.S. Bank on the causes of action for negligent misrepresentation, fraud, violation of section 2924g(d), and intentional infliction of emotional distress. Ragland produced evidence creating triable issues of fact as to whether Downey Savings induced her to miss a loan payment, thereby wrongfully placing her loan in foreclosure, and whether she suffered damages as a result. We affirm summary adjudication of the causes of action for breach of oral contract, negligent infliction of emotional distress, and rescission, and affirm the judgment in favor of DSL and FCI because Ragland is no longer pursuing claims against them.
The FDIC took control of Downey Savings in November 2008 and later assigned its assets, including Ragland's loan, to U.S. Bank. For the sake of clarity, we continue to use the name "Downey Savings" up through December 17, 2008, the date of the foreclosure sale.
Ragland Refinances Her Loan. Her Signature Is Forged on Some Loan Documents.
In June 2002, Ragland refinanced her home mortgage through Downey Savings. She obtained the refinance loan through a mortgage broker. The loan was an adjustable rate mortgage with an initial yearly interest rate of 2.95 percent, and the initial monthly payment was $1,241.03.
Ragland thought that Downey Savings had offered her a fixed rate loan and claimed her mortgage broker forged her name on certain loan documents. In July 2002, she sent a letter to the escrow company, asserting her signature had been forged on the buyer's estimated closing statement and on the lender's escrow instructions, and, in September 2002, she notified Downey Savings of the claimed forgery. A handwriting expert opined that Ragland's signature had been forged on those two documents, and on a statement of assets and liabilities, an addendum to the loan application, a provider of service schedule, and an itemization of charges. By August 2002, Ragland had consulted two attorneys about the forged documents, one of whom wanted to file a class action lawsuit on her behalf, and the other of whom advised her of her right to rescind the loan. Ragland signed, and did not dispute signing, the adjustable rate mortgage note, the deed of trust, and riders to both instruments.
Ragland Seeks a Loan Modification. She Is Told to Miss a Loan Payment to Qualify.
By April 2008, the yearly interest rate on Ragland's loan had increased to 7.022 percent and her monthly payment had increased to over $2,600. On April 13, Ragland spoke with a Downey Savings representative named John about modifying her loan. John told Ragland her loan was not "behind" but he would work with her to modify it. He told Ragland not to make the April 2008 loan payment because "the worst thing that's going to happen is you are going to have a late fee, we will get this done for you." When Ragland asked if there was a chance the loan modification would not "go through," John replied, "usually not, you are pre-qualified."
John told Ragland a $1,000 fee would be charged to modify the loan, and Downey Savings would not waive that fee. She replied that Downey Savings should waive the fee because her "loan was forged and nothing was done about it." John said he would check with his supervisor about waiving the fee.
John did not call back, and on April 16, 2008, the last day to make a timely loan payment for April, Ragland, who was nervous about a late payment, called him. John told her nothing could be done about the loan, so she asked to speak to his supervisor. The supervisor told Ragland, "[i]f you have one document in your packet that's forged, you may not be responsible for anything in your loan, at all, you may not have to even pay your loan." When Ragland said she had 13 to 15 forged documents, the supervisor checked her record and told her, "I can see that you reported . . . this to us. We are going to have to put it in legal." The supervisor told Ragland that Downey Savings could not collect from her while its legal department investigated the forgery. Ragland had planned to make her April 2008 loan payment but, based on what John and the supervisor told her, manually cancelled the automatic payment from her checking account.
In late April 2008, Downey Savings sent Ragland a notice that her loan payment was delinquent. On April 29, 2008, Ragland spoke with Downey Savings representatives named Joseph and Claudia and made notes on the delinquency notice of her conversations with them. Ragland noted that Claudia or Joseph told her: "Can't do modi[fication] while investigat[e] [¶] . . . Collection activity 'frozen.'" Claudia told Ragland that Downey Savings was initiating an investigation into her claim of forgery and could not accept further loan payments from her during the investigation. Ragland noted that Joseph also told her, "collection activity frozen."
No one from Downey Savings further discussed a loan modification with Ragland or requested financial information from her. Ragland testified in her deposition, "once it went into legal, that was it. It was like the legal black hole."
In May 2008, a withdrawal was made from Ragland's checking account and transmitted to Downey Savings as the May 2008 loan payment. Downey Savings refused to accept the payment.
On May 5, 2008, Downey Savings sent Ragland a letter entitled "Notice of Intent to Foreclose" (some capitalization omitted). According to the letter, the amount required to reinstate the loan was $5,487.80. On May 9, Ragland called Downey Savings in response to this letter. Her notes for this conversation indicate she spoke with "Reb," who transferred her to "Jasmine," who transferred her to "Lilia," who said the loan was in Downey Savings's legal department and "they[']ll C/B."
Downey Savings Institutes Foreclosure Proceedings; Ragland Gets the Runaround.
Nobody from Downey Savings called Ragland back. In early July 2008, Ragland received a letter from Downey Savings's collection department, informing her that foreclosure proceedings on her home had begun. On July 15, Ragland had a telephone conversation with each of three Downey Savings representatives, identified in her notes of the conversations as Eric, Gail, and Leanna. Ragland spoke first with Eric, who told her the account was in foreclosure and transferred her to the foreclosure department. Ragland next spoke with Gail, who said she could not speak to her because the account was in foreclosure. Gail transferred Ragland to Leanna. Leanna told Ragland that the legal department failed to put a red flag in the computer to indicate the loan was being investigated and that the loan should never have been placed in foreclosure. Leanna told Ragland that Downey Savings was "waiting for legal," and Ragland's attorney needed to "write the letter to legal and ask them . . . for a status update on the investigation, and that we had time, because it had just been referred in June and the sale wasn't set for quite a while." Ragland's notes from the conversation include, "[f]oreclosure on hold."
Downey Savings Institutes Foreclosure Proceedings; Ragland Attempts to Make Loan Payments.
On July 18, 2008, Downey Savings instructed DSL, the trustee under the deed of trust, to initiate foreclosure proceedings on Ragland's home. DSL assigned its agent, FCI, to take the actions necessary to foreclose the deed of trust on Ragland's home.
Ragland attempted to make payments on her loan in September, October, and November 2008 through transfers from her checking account. Downey Savings rejected the payments.
On October 30, 2008, FCI recorded a notice of trustee's sale, stating the foreclosure sale of Ragland's home would be held on November 20. Ragland filed this lawsuit against Downey Savings on November 7, 2008. Several days later, Ragland's attorney, Dean R. Kitano, spoke with general counsel for Downey Savings, Richard Swinney, about Ragland's allegations of fraud and forgery in connection with the origination of her loan. Swinney agreed to postpone the foreclosure sale until December 9, 2008.
By letter dated November 12, 2008, Swinney informed Kitano that until Downey Savings received certain documentation from Ragland, it would not consider modifying her loan. The letter stated that any loan modification would require that she bring the loan current and described as "not credible" Ragland's contention that a Downey Savings representative told her to skip a monthly payment. The forgery issue, according to the letter, "has no impact on this loan" because Ragland did not claim her signatures on the disclosure statement, note, or deed of trust were forged.
Later in November 2008, the Office of Thrift Supervision closed Downey Savings, and the FDIC was appointed as its receiver. U.S. Bank acquired the assets of Downey Savings from the FDIC. Ragland's loan was among those assets acquired by U.S. Bank.
Ragland's Home Is Sold at Foreclosure Sale on the Day After the Trial Court Denied Ragland's Motion for a Preliminary Injunction.
On November 12, 2008, Ragland filed an ex parte application for a temporary restraining order to enjoin the foreclosure sale scheduled for December 9. The ex parte application was heard on November 26, on which date the trial court issued an order stating: "Plaintiff shall be entitled to a temporary restraining order enjoining the foreclosure sale on December 9, 2008; upon bringing the loan current by Dec[ember] 16. Current is as of Nov[ember] 26, 2008." A hearing on Ragland's motion for a preliminary injunction was scheduled for December 16, 2008.
Following the ex parte hearing, Downey Savings provided Ragland a statement showing the amount necessary to reinstate her loan was $24,804.57, of which about $4,074 was for late charges, interest on arrears, property inspection and foreclosure costs. Kitano sent Downey Savings a letter, dated December 2, 2008, stating that "[c]urrently, my client is unable to pay the arrearage to make the loan current" and proposing that (1) $12,000 of the reinstatement amount be "tacked onto the back end of the loan" and (2) Downey Savings forgive the remaining amount.
In advance of the hearing on Ragland's motion for a preliminary injunction, the trial court issued a tentative decision that stated, in part: "The court's order of November 26, 2008, conditions the TRO [(temporary restraining order)] on plaintiff's bringing her payments current as of November 26, 20 by no later than December 16, 2008. According to defendant, t[he] amount necessary to bring the loan current is $24,804.57. Plaintiff does not dispute that she owes regular monthly mortgag[e] payments on the loan, and therefore whether or not she is likely to prevail on the merits is not at issue insofar as her responsibilit[ies] to bring the loan payments current [are] concerned. If plaintiff fails to bring her payments current by the hearing date, there is no reason to issue a preliminary injunction, since the injunction would serve no purpose but to prolong the inevitable to no good purpose. . . . [¶] If plaintiff does bring her payments current by the hearing date, then there is no basis for a foreclosure sale because the arrears would have been cured. Hence there would seem to be no need for the issuance of a preliminary injunction under such circumstances."
Ragland did not pay the amount demanded by Downey Savings to reinstate the loan by December 16, 2008. She had sufficient funds to make the back payments due under the note, but not to pay the additional fees.
On December 16, 2008, the trial court denied Ragland's motion for a preliminary injunction, and the foreclosure sale was conducted the next day. Ragland's ...