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Felice Crescenzo v. Wells Fargo Bank Na et al

February 11, 2013

FELICE CRESCENZO
v.
WELLS FARGO BANK NA ET AL



The opinion of the court was delivered by: Honorable A. Howard Matz, U.S. District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable A. HOWARD MATZ, U.S. DISTRICT JUDGE

Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No. Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)

Plaintiff Felice Crescenzo filed this wrongful foreclosure suit against Defendants Wells Fargo Bank, Defendant Regional Trustee Services Corporation, and Ricardo, Maria, and Monserrat Moran, the subsequent buyers of Crescenzo's residence. The Court previously dismissed most of Plaintiff's causes of action. The Court ruled, however, that Plaintiff had stated a valid claim for wrongful foreclosure under California Civil Code § 2924(g). Defendant Wells Fargo now moves for summary judgment on that claim.*fn1 For the reasons stated below, the Court GRANTS Wells Fargo's motion.

FACTS

In April 2008, Crescenzo obtained a refinance loan in the amount of $450,000 from Wachovia Mortgage, Wells Fargo's predecessor. (Statement of Undisputed Facts ¶ 1 ("SUF") (Dkt. 54-1).) The terms of the loan were memorialized in a promissory note and secured by a deed of trust against real property located at 5127 San Rafael Avenue, Los Angeles, California. (SUF ¶ 1.) Wachovia Mortgage was subsequently acquired by Defendant Wells Fargo. (SUF ¶ 1A.)

Plaintiff stopped making payments on the loan in December 2008. (SUF 2; Hehir Decl. Exh. 3 (Plaintiff's Response to Interrogatories) at 2.) On January 3, 2011, Defendant Regional Trustee Services Corporation ("Regional")-the trustee under the deed of trust--posted and recorded a Notice of Trustee's Sale, which noticed the sale for January 24, 2011. (SUF ¶ 4.) Shortly after receiving the Notice of Trustee Sale, Plaintiff submitted a loan modification application to Wells Fargo. Crescenzo was informed that the sale would be automatically postponed while review of his loan modification application was pending. (SUF ¶ 5.)

On January 24, 2011, the noticed date of sale, at the entrance of the Norwalk courthouse of the Los Angeles Superior Court, an auctioneer announced the postponement of the trustee's sale to February 24, 2011. (SUF ¶ 6.) On February 24, 2011, at the entrance of the Norwalk courthouse, an auctioneer again announced the postponement of the trustee sale, this time to March 30, 2011. (SUF ¶ 7.)

In a declaration, auctioneer Brenda Mitchell attests that on March 30, 2011, at the entrance of the Norwalk courthouse, she announced that the sale would be postponed until May 2, 2011. (Mitchell Decl. (Dkt. 54-4) ¶¶ 1-2). Mitchell's declaration is corroborated on this point by a Certificate of Postponement issued by LPS Agency Sales & Posting, Mitchell's employer and a company to which Regional outsources the posting, publication, and announcement of trustee sales. (Hjorten Decl. (Dkt. 54-3) ¶ 3, Exh. E.)*fn2

Crescenzo disputes Mitchell's testimony and contends that the March 30, 2011, sale date had been cancelled earlier that month. (SGI ¶ 8.) Crescenzo's attorney, Bruce Lorman, declares that on March 16, 2011, a Wells Fargo employee named "Odette," who worked in the foreclosure department, informed him that there was no sale date pending. (Lorman Decl. (Dkt. 64-2) ¶ 9.) Crescenzo also points to Wells Fargo internal documents produced during discovery that confirm Lorman's account of the March 16 phone call. (Lorman Decl. Exh. 1-2; Exh. 9 at 17.) Moreover, Lorman states that, although he saw the March 30 sale date listed on Regional's website prior to March 16, the website did not list any pending sale date when he visited the website after March 16. (Lorman Decl. ¶ 12.) Crescenzo has not, however, submitted any evidence to directly refute Mitchell's account that she announced the postponement of the sale on March 30.

On April 26, 2011, Wells Fargo informed Crescenzo that his loan modification application had been denied and that the foreclosure process, which according to Wells Fargo had been "suspended" pending review of his application, would "now resume." (SUF ΒΆ 10.) On May 2, 2011, at proceedings at the entrance of the Norwalk ...


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