United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT Re Dkt., 42
Jeffrey S. White, United States District Judge
before the Court is the motion for summary judgment filed by
Defendants BSI Financial Services and U.S. Bank National
Association as Trustee for the DRRF Trust 2015-1. The Court
has considered the parties' papers, relevant legal
authority, and the record in this case, and the Court finds
the motion suitable for disposition without oral argument.
See N.D. Civ. L.R. 7-1(b). Accordingly, the April
13, 2018 hearing is VACATED. For the reasons set forth below,
the Court HEREBY GRANTS Defendants' motion for summary
October 25, 2007, Plaintiff Sterlyng Fung executed a deed of
trust securing a $728, 000 loan. (Dkt. No. 43-1, RJN Ex.
The deed of trust encumbered a piece of property on Harrison
Street in Oakland, California. (Id.) In 2010,
Plaintiff stopped making his monthly loan payments, and on
December 4, 2013, Quality Loan Service Corporation
(“Quality Loan Service”), acting as trustee under
the deed of trust, recorded a notice of default. The notice
of default indicated that Plaintiff was $302, 938.72 in
default. (Dkt. No. 44, Spangler Decl. ¶ 7; Dkt. No.
43-1, RJN Ex. C.) On February 5, 2016, Quality Loan Service
recorded a Notice of Trustee's Sale. (Dkt. No. 43-1, RJN
Ex. D.) This Notice established a sale date of March 2, 2016.
March 1, 2016, Plaintiff filed for Chapter 13 bankruptcy,
thus resulting in the March 2, 2016 sale date being
postponed. (Spangler Decl. ¶ 10; see also Dkt.
No. 43-1, RJN Ex. F.) On April 14, 2016, Defendant U.S. Bank
obtained relief from the bankruptcy automatic stay. See
In re Fung, No. 16-40556, Dkt. No. 48 (Bankr. N.D. Cal.
Apr. 14, 2017). After this, the foreclosure sale was
postponed to April 29, 2016. (Spangler Decl. ¶ 10.)
April 26, 2016, Plaintiff submitted a loan modification
application to Defendant BSI Financial Services
(“BSI”). (Spangler Decl. ¶ 11; see
also Dkt. No. 48-1, Fung Decl. ¶ 3.) Plaintiff
concedes that he had previously submitted loan modification
applications which had been denied. (Fung Decl. ¶ 3.) He
asserts, however that his “financial situation had
materially improved.” (Id.) Plaintiff
previously attached his April 26, 2016 loan modification
application as Exhibit O. (See Dkt. No. 40, First
Amended Complaint (“FAC”), Ex. O.) This
The enclosed loan modification application is materially
different from the one previously submitted on February 26,
2016. Mr. Fung's earnings has [sic] increased during the
last three months as reflected in his bank statements. His
son also lives with him and is employed full time and is
willing to contribute his earnings if necessary.
(Id.) After submitting his April 26, 2016
application, Plaintiff states he was informed by a BSI
representative that his application would not be reviewed
because it was submitted within 30 days of the
“originally scheduled trustee's sale.” (Fung
Decl. ¶ 4.)
April 28, 2016, again the day before the Trustee's sale,
Plaintiff Claire Fung filed for Chapter 13 bankruptcy
protection. (Spangler Decl. ¶ 12; see also Dkt.
No. 43-1, RJN Ex. H.) On June 9, 2016, U.S. Bank obtained
relief from the bankruptcy automatic stay. See In re
Fung, No. 16-41149, Dkt. No. 19 (Bankr. N.D. Cal. June
9, 2016). This second bankruptcy filing resulted in the
foreclosure sale being postponed. (Spangler Decl. ¶ 12.)
to the FAC and its attached exhibits, on June 2, 2016,
Plaintiffs obtained a temporary restraining order from the
Superior Court of California for the County of Alameda
prohibiting any foreclosure sale from occurring. (FAC ¶
16 & Ex. K.) Plaintiffs have alleged (and Defendants do
not dispute) that this temporary restraining order was
dissolved (and Plaintiffs' motion for a preliminary
injunction was denied) on June 21, 2016. (FAC ¶ 17.) The
following day, June 22, 2016, the Harrison Street property
was sold at public auction. (Spangler Decl. ¶ 13;
see also Dkt. No. 43-1, RJN Ex. E.)
filed the instant action in December 2016 and alleged a
number of causes of action, including wrongful foreclosure
and violations of California Civil Code §§ 2923.6,
2923.55, 2924g(d). This Court previously dismissed
Plaintiffs' wrongful foreclosure cause of action with
prejudice. The Court also dismissed Plaintiffs' claims
brought under the California Civil Code, but afforded
Plaintiffs leave to amend. Plaintiffs filed the FAC on
December 11, 2017. Defendants BSI and U.S. Bank have now
moved for summary judgment on all of Plaintiffs'
Applicable Legal Standard.
principal purpose of the summary judgment procedure is to
identify and dispose of factually unsupported claims.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24
(1986). Summary judgment, or partial summary judgment, is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“In considering a motion for summary judgment, the
court may not weigh the evidence or make credibility
determinations, and is ...