Opinion

Urani v. PNC Bank CA1/5

Court
California Court of Appeal
Filed
Jul 28, 2023
Status
Unpublished
Cited by
0 cases
Authority
More cited than 23.7%

The opinion

Filed 7/28/23 Urani v. PNC Bank CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on

opinions not certified for publication or ordered published, except as specified by rule

8.1115(b). This opinion has not been certified for publication or ordered published for

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CATHERINE URANI,

Plaintiff and Appellant, A161438

v.

PNC BANK, N.A., (Contra Costa County

Super. Ct. No. MSC1902430)

Defendant and Respondent.

Catherine Urani appeals from the entry of judgment on her

complaint for violations of the Homeowner Bill of Rights (Civ.

Code, §§ 2923.6, 2923.7)1 and related claims. Urani claimed that

PNC Bank, N.A., violated the statute by mishandling her

application for a loan modification. The trial court concluded

Urani failed to allege a material violation of the statute, and it

sustained PNC’s demurrer. We reverse as to the Homeowner Bill

of Rights claims and affirm as to the remaining causes of action.

BACKGROUND

A.

The Homeowner Bill of Rights is designed to ensure that,

as part of the nonjudicial foreclosure process, a mortgage servicer

meaningfully considers the borrower’s suitability for any

1 Undesignated statutory references are to the Civil Code.

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available loss mitigation options that the servicer offers, such as

a loan modification. (§ 2923.4.) While the statute does not give

borrowers a right to obtain any particular option (ibid.), it does

impose procedures that the servicer must follow.

For material violations of specified provisions, the statute

authorizes preforeclosure injunctive relief (§ 2924.12, subd.

(a)(1)), postforeclosure claims for actual economic damages (and

additional damages for more egregious violations) (§ 2924.12,

subd. (b)), and attorney fees and costs for prevailing claimants

(§ 2924.12, subd. (h)). Any preforeclosure injunctive relief shall

remain in place until the court determines that the violations

have been corrected and remedied. (§ 2924.12, subd. (a)(2).)

B.

In her operative complaint, Urani alleged that PNC

serviced the mortgage loan on her home. As explained in more

detail below, when she applied for a loan modification, PNC

violated the Homeowner Bill of Rights by pursuing foreclosure

while her application was pending (a practice known as dual

tracking), by assigning a single point of contact who failed to

perform her duties under the statute, and by failing to provide a

written list of reasons for denying her application. Although a

trustee’s sale was scheduled for November 2019, it apparently did

not take place.

Urani sued under the Homeowner Bill of Rights to enjoin

the sale. She also brought claims for negligence and unfair

competition (Bus. & Prof. Code, § 17200 et seq.).

PNC demurred. Among other grounds, it argued Urani

failed to allege any material violation of the Homeowner Bill of

Rights and failed to allege standing under the unfair competition

law because she did not clearly allege she qualified for a loan

modification and the trustee’s sale had not proceeded. The trial

court sustained PNC’s demurrer with leave to amend. After

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Urani waived the opportunity to amend, the court sustained the

demurrer without leave to amend and dismissed the case.

DISCUSSION

A.

PNC contends this appeal is moot. We disagree.

A case is moot when the decision of the reviewing court can

have no practical impact or provide the parties with any effectual

relief. (MHC Operating Limited Partnership v. City of San Jose

(2003) 106 Cal.App.4th 204, 214.) Generally, the burden of

persuasion is on the respondent. (Parkford Owners for a Better

Community v. County of Placer (2020) 54 Cal.App.5th 714, 721.)

Citing section 2924.12, PNC claims the matter is moot

because there are no pending foreclosure proceedings against

Urani’s property and the only available preforeclosure relief is an

injunction to stop the trustee’s sale. Urani concedes the 2019

sale was cancelled, with no new notice of default or notice of sale

recorded since then. Still, she urges that her account remains in

default with no foreclosure prevention alternatives in place, and

nothing prevents PNC from restarting the foreclosure process.

PNC acknowledges that Urani was not approved for a loan

modification and that foreclosure could begin anew with the

recording of a new notice of trustee’s sale.

We turn to the statute to see if Urani can obtain relief. An

injunction is authorized when “a trustee’s deed upon sale has not

been recorded.” (§ 2924.12, subd. (a)(1).) Any injunction shall

remain in place “and any trustee’s sale shall be enjoined” until

material violations are corrected and remedied. (§ 2924.12, subd.

(a)(2), italics added.) These provisions make it clear that an

injunction may issue with or without a particular trustee’s sale

on notice. The statute authorizes a motion to dissolve an

injunction “based on a showing that the material violation has

been corrected and remedied” (§ 2924.12, subd. (a)(2))—not

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merely because a notice of default expired or a scheduled sale

was cancelled. The preforeclosure relief authorized by the statute

could still aid Urani, so her appeal is not moot.

Finally, PNC contends that there are no material violations

to support an injunction, and it corrected any technical violations.

These issues are intertwined with the merits of Urani’s appeal, to

which we turn now.

B.

Urani contends the trial court applied the wrong standard

and erroneously held she alleged no material violations of the

Homeowner Bill of Rights. We agree.

1.

We review an order sustaining a demurrer de novo,

exercising our independent judgment as to whether, as a matter

of law, the complaint states a cause of action on any available

legal theory. (Churchman v. Bay Area Rapid Transit Dist. (2019)

39 Cal.App.5th 246, 249.) We assume the truth of all material

factual allegations together with those matters subject to judicial

notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

2.

There is not much dispute that Urani alleged PNC

committed procedural violations of the statute during the

modification process. We see at least three.

First, when a complete application for loan modification is

pending, the servicer may not record a notice of default or a

notice of sale until the servicer provides written denial of the

application and gives the borrower at least 30 days to appeal.

(Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th

279, 311 (Morris); § 2923.6, subds. (c)(1), (d).)

4

Urani alleged that when she applied for a modification in

the spring of 2019, PNC denied her application, supposedly

because she had not submitted all needed information. Her

single point of contact explained PNC did not have a particular

deed it had not previously requested and said Urani could re-

apply due to the mix-up. Urani applied again. PNC asked her to

provide another newly requested deed by October 3, 2019. Her

husband emailed a copy of the deed on September 20, at which

point the application was complete. But the trustee recorded a

notice of sale on September 26, about a month before PNC denied

Urani’s application in late October.

These allegations describe dual tracking, a violation of

section 2923.6. Urani alleged PNC allowed a notice of sale to be

recorded while her complete application was still pending.

Second, the servicer must establish a single point of contact

responsible for ensuring the borrower is considered for available

foreclosure alternatives (§ 2923.7, subd. (b)(4)), communicating

the application process and deadlines (§ 2923.7, subd. (b)(1)), and

coordinating receipt of the application documents while notifying

the borrower of missing items (§ 2923.7, subd. (b)(2)). The

contact must have access to current information and personnel

sufficient to timely, accurately, and adequately inform the

borrower of her status (§ 2923.7, subd. (b)(3)) and to individuals

empowered to stop the foreclosure process when necessary

(§ 2923.7, subd. (b)(5)).

Building on her dual tracking theory, Urani alleged her

single point of contact failed to notify her of documents missing

from her applications and lacked access to colleagues who could

stop the foreclosure proceedings while her application was still

pending. These allegations describe another violation of the

statute.

Finally, the servicer must send a written notice to the

borrower giving the reasons for denial and instructing her how to

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appeal. (§ 2923.6, subd. (f).) This is important because the

servicer’s reasoning could provide grounds for an appeal. Here,

Urani alleged that PNC’s denial letter merely told her to contact

her representative for a statement of reasons. She thus alleged

PNC failed to explain its determination in writing as required by

the statute.

3.

PNC primarily contends any “technical” violation Urani

alleged was not material. The parties generally agree that a

material violation is one that affected the borrower’s loan

obligations, disrupted the loan modification process, or otherwise

harmed the borrower in her efforts to be considered for a loss

mitigation option. (Morris, supra, 78 Cal.App.5th at pp. 304–305

& fn. 14.)

Urani alleged that here. She pled that if her application

were adequately reviewed, it would have been approved, “or at

the very least, she would better know her options and have been

able to pursue other foreclosure prevention alternatives” at an

earlier time. These are not bare conclusions or contradictions,

but alternative theories of materiality. (See Crowley v. Katleman

(1994) 8 Cal.4th 666, 690–691 [recognizing modern practice of

pleading alternative factual or legal theories when in doubt as to

which is most accurate].) They are similar to allegations found

adequate in Morris and other California authorities on the theory

that the modification process was disrupted.2 (See Morris, supra,

78 Cal.App.5th at pp. 311–313; Berman v. HSBC Bank USA, N.A.

2 PNC’s discussion of federal authorities ignores “that

federal district judges have more latitude to dismiss claims at the

pleading stage . . . than California trial judges have under our

traditional notice pleading standards.” (Morris, supra, 78

Cal.App.5th at p. 304, fn. 14.) For this reason, PNC’s federal

authorities do not support dismissing Urani’s claims.

6

(2017) 11 Cal.App.5th 465, 472–474 (Berman); Potocki v. Wells

Fargo Bank, N.A. (2019) 38 Cal.App.5th 566, 570–571.)

Like the trial court, PNC deems materiality lacking

because Urani did not unequivocally allege she qualified for a

modification and admits her application was ultimately denied.

But Urani alleged PNC repeatedly miscommunicated about her

application, allowed a trustee’s sale to be noticed while it was

pending, and denied it weeks later without explanation. This

disrupted the modification process, whether or not Urani was

ultimately entitled to a modification. (See Berman, supra, 11

Cal.App.5th at p. 474; Morris, supra, 78 Cal.App.5th at pp. 311–

313.) The bare fact that PNC denied Urani’s application does not

show it reviewed the complete application in good faith; the dual

tracking and other alleged mistakes suggest it did not. Moreover,

had PNC provided Urani its reasons for denying the application,

she might have been able to pursue a successful appeal. The

complaint alleges material violations of the statute.

4.

On a similar note, PNC argues it corrected and remedied

any violations by postponing the sale until it denied Urani’s

application. (See § 2924.12, subd. (c); Schmidt v. Citibank, N.A.

(2018) 28 Cal.App.5th 1109, 1115.)

PNC relies primarily on Billesbach v. Specialized Loan

Servicing LLC (2021) 63 Cal.App.5th 830 to support this

argument. But Billesbach was decided on summary judgment,

based on evidence that the loan servicer postponed the

foreclosure sale, provided a single point of contact, communicated

with the borrower about foreclosure alternatives, fully considered

his application, and offered him a trial-period modification plan.

(Id. at pp. 837, 846.) Based on this evidence, the court of appeal

found the statute’s purpose to ensure that borrowers have a

meaningful opportunity to obtain loss mitigation options was

satisfied. (Id. at p. 846.)

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As already discussed, nothing like that is alleged here. The

bare fact that PNC denied Urani’s application does not show the

alleged violations were corrected and the statute’s purpose was

satisfied.

C.

Finally, the trial court found that Urani failed to allege

negligence and unfair competition. Urani does not address the

negligence claim in her briefing. And she defends the unfair

competition claim only by arguing she adequately pled her

underlying Homeowner Bill of Rights claims, failing to squarely

address the trial court’s ruling that she did not allege standing

under the unfair competition law. Urani has thus abandoned

these claims on appeal. (See Behr v. Redmond (2011) 193

Cal.App.4th 517, 538.)

DISPOSITION

The judgment of dismissal is reversed. The order

sustaining PNC’s demurrer is reversed as to the first and second

causes of action under the Homeowner Bill of Rights; we affirm

as to the remaining claims. PNC shall bear Urani’s costs on

appeal.

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______________________

BURNS, J.

We concur:

____________________________

JACKSON, P.J.

____________________________

SIMONS, J.

A161438

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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