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Penelope Bergman v. Fidelity National Financial

December 3, 2012


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O JS-6



Plaintiff Penelope Bergman brings claims against Fidelity National Financial for violation of the Real Estate Settlement Procedures Act ("RESPA"). Fidelity moved to dismiss Bergman's First Amended Complaint, contending in part that Bergman's loan was for business or commercial purposes and therefore did not fall within RESPA's ambit. The Court converted Fidelity's motion to dismiss to a motion for summary judgment on this threshold issue and now GRANTS the converted motion for summary judgment.*fn1


In 2008, Penelope Bergman (then Penelope Park*fn2 purchased a triplex at 1712, 1714, and 1716 South Crescent Heights Boulevard in Los Angeles, California. (Bergman Decl. ¶ 1; ECF No. 36-2.) To finance the $645,000 purchase price, Bergman executed a deed of trust in the amount of the purchase price. (ECF No. 36-2, at 16.) This deed of trust included a 1--4 Family Rider that (among other things) assigned rents to the lender and deleted the occupancy requirement contained in the deed of trust. (Id.) Bergman testified that she purchased the triplex "to provide a place for myself and my family to live and retire." (Bergman Decl. ¶ 1.)

On June 8, 2011, Bergman obtained a $626,250 refinance loan to lower the interest rate and monthly mortgage payments on her triplex. (Id. ¶ 2; ECF No. 36-3.) According to Bergman, "The refinance was solely to pay off the balance on [her] purchase money loan . . . , and [she] did not receive any cash proceeds from the refinance." (Bergman Decl. ¶ 2.) The deed of trust for the refinance loan contained the same 1--4 Family Rider found in Bergman's original deed of trust (ECF No. 36-3, at 18), and various loan documents identify the property type as "Three Family" and property usage as "Primary Residence." (ECF No. 51, Exs. 3--4.)

Bergman contends that at the time she refinanced the triplex, the unit at 1716 South Crescent Heights was her primary residence (which she shared with her sister), and she expected to and did occupy that unit for more than 14 days in the coming year. (Bergman Decl. ¶ 3.) Yet, public records list 1714 South Crescent Heights as Bergman's address only from November 2009 to March 2010; from July 2010 (a year before closing on the refinance loan) to present her address is listed as 3879 Lyceum Avenue, which was her then-fiance's (now husband) address. (Gleason Decl. Ex. C.)

Since 2002, Bergman has worked primarily as a practicing attorney. (Bergman Decl. ¶ 4.) As a founding member of her current firm, Bergman & Gutierrez LLP, Bergman's practice focuses "on business and real estate litigation and transactional matters." (Gleason Decl. Ex. D, at 15.) In addition to her work as an attorney, Bergman has always personally managed her triplex through 1712 Crescent, LLC, which she formed upon her acquisition of the triplex. (Bergman Decl. ¶ 5.) Bergman is the sole member of and the statutory agent for this limited liability company. (ECF No. 36-4, at 71--72.) According to Bergman, the triplex has never produced any positive net income, as the rent she receives from the two rented units is less than her total out-of-pocket costs associated with maintaining the property. (Bergman Decl. ¶ 6.)

Against this backdrop, the Court must apply the summary-judgment standard to ascertain whether Bergman's 2011 refinance loan-the only loan transaction at issue in this case-is more accurately characterized as a personal loan (which would be subject to RESPA) or a business or commercial loan (which would not be subject to RESPA).


Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts through admissible evidence that show a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill's Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is "material" where the resolution of that fact might affect the outcome of the suit under the governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving and nonmoving parties' versions of events differ, courts are required to view the facts and draw reasonable inferences in the ...

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