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Candace P. Laden and Richard M. Laden v. U.S. Bank National Association As Trustee For Harborview 2005-16 Trust

April 23, 2013

CANDACE P. LADEN AND RICHARD M. LADEN, PLAINTIFFS,
v.
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR HARBORVIEW 2005-16 TRUST FUND AND DOES 1--20, INCLUSIVE, DEFENDANTS.



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

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [43]

I.INTRODUCTION

Plaintiffs Candace and Richard Laden seek relief against Defendant U.S. Bank under a single statute: California Civil Code section 2923.5. The Ladens contend that U.S. Bank failed under this statute to contact them to assess their financial situation and explore foreclosure-avoidance options before filing a notice of default. But at a recent order-to-show-cause hearing, the Court observed that there no longer appeared to be a live case or controversy in this matter, as U.S. Bank has now made the required contact and even offered the Ladens two loan modifications. This is all that is required under section 2923.5.

At the Court's direction, U.S. Bank has moved for summary judgment. (ECF No. 43.) The Ladens failed to oppose U.S. Bank's motion, which the Court now GRANTS.*fn1

II.UNDISPUTED FACTS

On October 3, 2005, the Ladens obtained a $900,000.00 home loan secured by a Deed of Trust encumbering their home. (UF 1.) Bank of America serviced the loan on behalf of U.S. Bank, the trustee of the Harborview 2005-16 securitized trust holding beneficial interest in the Ladens' loan. (See UF 3.)

The Ladens initially defaulted on their mortgage payments in April 2008. (UF 6.) While they resumed making payments in August 2008, they defaulted again in December 2008 and stopped making payments altogether in May 2009. (UF 6, 7.) As a result, Bank of America sent the Ladens notices of intent to accelerate the balance due on the loan on July 21, 2009; March 25, 2010; and on January 7, 2011. (UF 8, 10, 12.) Each of these notices identified the Ladens' missed monthly payments and resulting late charges, documented foreclosure alternatives, and included the toll-free numbers for both Bank of America's Loan Counseling Center and the Housing and Urban Development ("HUD") counseling agency. (UF 9--10, 12.)

Between March 10, 2010, and April 14, 2011, Bank of America also contacted or attempted to contact the Ladens by telephone multiple times to assess their financial situation and explore options to avoid foreclosure. (UF 11, 14--16.) On three occasions (on January 31, April 12, and April 14, 2011), Bank of America representatives spoke with at least one of the Ladens to discuss their financial situation, explore options to avoid foreclosure, and provide them with HUD's toll-free number. (UF 11, 14--16.) Representatives also left messages for the Ladens on April 17, 2010, at 11:58 a.m.; April 27, 2010, at 7:33 p.m.; July 8, 2010, at 8:41 p.m.; and September 30, 2011, at 7:48 p.m. (UF 11.)

On August 16, 2011, ReconTrust recorded a Notice of Default on Bank of America's behalf. (UF 20.) The Notice of Default contained a declaration of compliance with section 2923.5, in which Bank of America employee Tanya Jackson testified under penalty of perjury that Bank of America had "tried with due diligence to contact the borrower in accordance with California Civil Code Section 2923.5." (UF 19.)

On November 22, 2011, ReconTrust recorded a Notice of Trustee's Sale. (UF 21.) No foreclosure sale has taken place to date. (UF 22.)

After the Ladens filed this lawsuit in December 2011,*fn2 Bank of America approved them for a loan modification on December 27, 2012; the Ladens rejected the modification. (UF 23). Then on February 7, 2013, Bank of America approved the Ladens for a second loan modification, which they also rejected. (UF 24.) The Ladens remain $223,552.24 in arrears on their mortgage loan. (UF 25.)

III.LEGAL STANDARD

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 ...


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