APPEAL from a judgment of the Superior Court of Tulare County No. VCU240471, Melinda Myrle Reed, Judge.
Margaret R. Roberts, in pro. per., for Defendant and Appellant.
Pite Duncan, David E. McAllister and Drew A. Callahan for Plaintiff and Respondent.
Appellant Margaret R. Roberts (Roberts) obtained a home equity line of credit from respondent Bank of America, N.A. (B of A), which provided a credit limit to Roberts in the principal amount of $250, 000 (the home equity loan), secured by a second deed of trust on certain real property in Three Rivers, California (the real property). Later, when the holder of the first deed of trust commenced nonjudicial foreclosure proceedings, Roberts sought to avoid foreclosure by requesting that B of A consent to a short sale of the real property to a third party. The short sale would pay off the entire obligation secured by the first deed of trust and about $27, 000 of the amount owed to B of A under the home equity loan. In seeking B of A’s consent to the short sale, Roberts agreed that she would remain obligated to repay the balance of her home equity loan to B of A. B of A consented to the short sale and released its secured interest in the real property under the second deed of trust. When Roberts later defaulted on the home equity loan, B of A filed the present action seeking a money judgment against Roberts for the balance due under the loan. B of A then moved for summary judgment on its complaint. Roberts opposed the motion on the ground that certain statutes barred B of A from seeking a deficiency judgment against her. The trial court rejected Roberts’s arguments, granted the motion and entered judgment against Roberts in the sum of $235, 402.47. Roberts appeals from that judgment, raising many of the same arguments that she did in the trial court. We agree with the trial court that none of the statutes referred to by Roberts precluded a deficiency judgment against her and that B of A was entitled to judgment as a matter of law. Accordingly, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
In December 2010, B of A filed a complaint against Roberts for breach of contract and common counts, based on Roberts’s alleged default on her contractual obligation to repay the home equity loan. The complaint included an allegation that on or about June 2, 2009, B of A “accepted the short sale proceeds in the sum of $27, 090.11, for the release of its lien on the [r]eal [p]roperty only.” Attached to the complaint, and incorporated therein, was a copy of (i) the home equity loan agreement, (ii) the deed of trust, and (iii) the short sale agreement. In the short sale agreement, Roberts expressly acknowledged and agreed that she was responsible to repay the unpaid balance of the home equity loan.
In May 2011, B of A moved for summary judgment on its complaint. The supporting declaration by Jason Dunn, an Assistant Vice President of B of A, averred the factual basis for the home equity loan, the default thereof by Roberts, and the amount that was due and owing under said loan. Dunn’s declaration also asserted there was a short sale agreement which released the lien on the real property only. Copies of the home equity loan, the deed of trust, and the short sale agreement were all attached to, and authenticated by, Dunn’s declaration. As noted, the short sale agreement included Roberts’s acknowledgment that after the short sale was completed, she would remain obligated to repay the balance of the home equity loan. With one exception that was subsequently corrected, these factual matters were set forth in the separate statement of undisputed material facts in support of B of A’s motion for summary judgment.
In August 2011, Roberts filed her opposition to the motion for summary judgment. Roberts admitted to entering the home equity loan and defaulting on same, but she asserted that in light of the short sale in which B of A received a portion of the delinquent amount, B of A was barred from seeking a deficiency judgment against her based on Code of Civil Procedure sections 580e (an antideficiency statute relating to short sales) and 726 (the one form of action rule). She noted that the application form in connection with the short sale had disclosed that B of A may pursue a deficiency judgment unless “prohibited by law.” She argued that sections 580e and/or 726 constituted such legal prohibitions. She also argued that B of A had unclean hands, since it took advantage of her financial plight when it consented to the short sale.
The trial court granted B of A’s motion for summary judgment. The trial court’s written order noted that B of A had set forth sufficient evidence to establish its breach of contract cause of action and that Roberts had failed to show any triable issue of material fact. Further, as to Roberts’s assertion of statutory defenses, the trial court explained: “[Roberts] has not shown that [B of A’s] cause of action [is] barred by [sections] 580e and/or 726, or prohibited by any other law. [B of A’s] participation in a short sale of its collateral in which [B of A] held a junior position and which resulted in payment to [B of A] of less than the amount due under [Roberts’s] loan agreement does not bar [B of A] from pursuing this action to recover the deficiency. [Roberts] has not provided evidence to show that [B of A] waived its right to recover a deficiency judgment by releasing its lien on the subject real property as part of the short sale.” The formal order granting the summary judgment motion was filed October 5, 2011, including the amount due under the home equity loan of $235, 402.47. Judgment was entered based on the order granting the summary judgment motion. Roberts’s timely appeal followed.
I. Standard of Review
Summary judgment is appropriate when all of the papers submitted show there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A plaintiff is entitled to move for summary judgment on the ground that there is no defense to the action. (§ 437c, subd. (a).) A plaintiff satisfies its burden of showing there is no defense to the action by presenting evidence sufficient to establish each element of the cause of action entitling plaintiff to judgment. (Id., subd. (p)(1).) Once the plaintiff has met that initial burden, the burden then shifts to the ...