DALE A. DROZD, District Judge.
The parties filed a joint pretrial statement on November 20, 2017. (Doc. No. 84.) On November 27, 2017, the court conducted a final pretrial conference in this action. (Doc. No. 87.) Attorney John Drooyan appeared for plaintiff; attorney Alison V. Lippa appeared for defendant. During the hearing, the court requested that the parties file an addendum to the joint pretrial statement providing an amended joint disputed statement of disputed material facts and amended exhibit lists. The parties filed that addendum on December 7, 2017. (Doc. No. 89.) The court issued a tentative pretrial order on December 21, 2017. (Doc. No. 90.) Both parties filed objections on January 3, 2018. (Doc. Nos. 91, 93.) Defendant filed a response to plaintiff's objections on January 10, 2018. (Doc. No. 94.) Plaintiff did not file a response to defendant's objections to the tentative pretrial order.
This case arises out of the way in which defendant, Bank of America N.A. as successor by merger to BAC Home Loans Servicing LP ("BANA") ("defendant"), serviced the mortgage loan of plaintiff Brenda Dowling ("plaintiff"). On October 15, 2008, plaintiff obtained a mortgage loan for real property located at 4040 West Iris Avenue, Visalia, California 93277. When plaintiff later experienced difficulty in making monthly loan payments, she sought loan modification assistance from defendant. In response, plaintiff received correspondence from defendant indicating that she might qualify for a conditional "partial claim"
Jurisdiction is predicated on 28 U.S.C. §§ 1367. The First Amended Complaint alleged jurisdiction based on violations of the Fair Debt Collection Practices Act. 15 U.S.C. §1962(e)(2)(A), (d)(5). The court awarded summary judgment in favor of defendants on those claims, but retains supplemental jurisdiction over all remaining claims which arise under California state law. Jurisdiction is not contested. Venue is proper pursuant to 28 U.S.C. § 139 1(a) and (b). Venue is not contested.
Plaintiff has demanded a jury trial. However, defendant contends that the claim arising under California's Unfair Competition Law should be determined by the court. See, e.g., Cargill Inc. v. Progressive Dairy Solutions, Inc., 362 Fed. Appx. 731, 733 (9th Cir. 2010)
1. On October 15, 2008, plaintiff and her then-husband Brent Dowling obtained a mortgage loan (the "loan") in the amount of $291,157 from Provident Mortgage Corporation ("Provident") for purchase of real property located at 4040 West Iris Avenue, Visalia, California 93277 (the "property"). The loan was insured by the Federal Housing Administration ("FHA"). The loan was reflected in a promissory note that was secured by a deed of trust ("DOT"). The DOT was recorded in Tulare County on October 24, 2008, and the property secured performance of the loan.
2. In or around October 2008, Provident sold the loan to Countrywide Bank, FSB ("Countrywide").
3. Countrywide Home Loans Servicing LP ("CHLS") serviced the loan from its origination in October 2008. Effective April 27, 2009, CHLS changed its name to BAC Home Loans Servicing LP. Effective July 1, 2011, BAC Home Loans Servicing LP merged into an entity called BANA.
4. In May 2009, plaintiff and Mr. Dowling began to experience difficulty in making their monthly loan payment due to a reduction in their income. They sought loan modification assistance from BANA and defaulted on the loan when they missed their September 2009 payment.
5. As part of its consideration of loan modification options, BANA notified plaintiff and Mr. Dowling that they might qualify for a conditional "partial claim" on July 1, 2010. A partial claim is an interest-free loan from the Department of Housing and Urban Development ("HUD") offered on qualified loans insured by the FHA. Under the partial claim, the lender advances funds for the borrower in an amount necessary to reinstate a delinquent loan, not to exceed the equivalent of twelve months of principal and interest payments. The borrower is required to execute a promissory note and subordinate mortgage payable to HUD. A partial claim note does not assess interest and is not due until the borrower either pays off the first mortgage or no longer owns the property. The partial claim is one step in the process of a lender considering the borrower for a loan modification. Even if the partial claim is approved, the lender still has the right to refuse a loan modification if the lender's conditions are not satisfied. BANA sent plaintiff and Mr. Dowling a partial claim commitment letter and a number of other documents relating to the offer of a conditional partial claim. Plaintiff and Mr. Dowling executed and returned the conditional offer on July 7, 2010, but in doing so did not create a binding contract to modify plaintiff's loan. A partial claim deed of trust, executed by both plaintiff and Mr. Dowling reflecting the sum of $15,064.12, was recorded on August 12, 2010.
6. As a condition of the borrowers' loan modification application, BANA required plaintiff and Mr. Dowling to make three trial plan loan payments ("TPP"), which they paid to BANA by cashier's checks in the following amounts: (1) $2,096.78, dated August 31, 2010 which was credited to plaintiff's loan balance on September 21, 2010; (2) $2,095.76 dated September 30, 2010 which was credited to plaintiff's loan balance on October 20, 2010; and (3) $2,095.76 dated November 1, 2010 which was credited to plaintiff's loan balance on November 16, 2010.
7. In August 2010, BANA determined that plaintiff and Mr. Dowling did not qualify for the partial claim.
8. On August 29, 2012, plaintiff executed and recorded a quit claim deed and an interspousal grant deed to remove Mr. Dowling from title to the property as part of their divorce settlement.
9. On September 10, 2012, the foreclosure trustee, ReconTrust, recorded a notice of default in Tulare County reflecting a past due amount on the mortgage loan of $61,330.36 as of September 7, 2012. No foreclosure sale date was ever set, and no foreclosure sale occurred.
10. The recorded documents reflect that a full reconveyance of the partial claim deed of trust was recorded on March 10, 2013.
11. Later, and unconnected to any partial claim, BANA offered plaintiff a loan modification in 2012, which she rejected. In April 2014, BANA offered plaintiff a loan modification, which she executed and accepted and which was recorded in the Official Records of the County of Tulare on April 25, 2014 ("Loan Modification").
12. At the present time, plaintiff is current on the loan and there is no active foreclosure process against the property.
1. Whether the Partial Claim Agreement was conditional.
2. Whether plaintiff's payments of $2,096.78 dated August 31, 2010, $2,095.76 dated September 30, 2010, and $2,095.76 dated November 1, 2010 were made pursuant to Section A of the offer of Partial Claim and Agreement.
3. Whether defendant timely and properly credited to the mortgage loan account plaintiff's payments of $2,096.78 dated August 31, 2010, $2,095.76 dated September 30, 2010, and $2,095.76 dated November 1, 2010.
4. Whether defendant agreed to forgive $75,000 in principal balance with respect to the mortgage loan as part of the loan modification.
5. Whether plaintiff complied with the conditions of defendant's offer of a conditional Partial Claim Agreement.
6. Whether the Partial Claim offer was withdrawn because plaintiff and her ex-husband failed to comply with the conditions of the offer.
7. Whether defendant timely and properly credited plaintiff's trial modification payments.
8. Whether defendant timely and properly credited plaintiff's loan payments.
9. Whether defendant misrepresented and failed to disclose material facts to plaintiff in the course of servicing plaintiff's mortgage loan from 2009 to the present.
The parties have not yet filed motions in limine. The court does not encourage the filing of motions in limine unless they are addressed to issues that can realistically be resolved by the court prior to trial and without reference to the other evidence which will be introduced by the parties at trial. The parties anticipate filing the motions listed in limine below. Any motions in limine counsel elects to file shall be filed no later than 21 days before trial. Opposition shall be filed no later than 14 days before trial and any replies shall be filed no later than 10 days before trial. Upon receipt of any opposition briefs, the court will notify the parties if it will hear argument on any motions in limine prior to the first day of trial. The parties have indicated that they intend to file the following motions in limine.
1. A motion in limine to exclude testimony and evidence that defendant did not foreclose on plaintiff's property that is the subject of the loan, on the grounds that such information is not relevant to plaintiff's claims and is more prejudicial than probative.
2. A motion in limine to exclude testimony related to the history of plaintiff's payments on the loan, other than those payments which are the subject of plaintiff's causes of action for breach of contract and conversion, on the grounds that this information is not relevant to plaintiff's claims and is more prejudicial than probative.
3. A motion in limine to exclude testimony related to defendant's $50,000 Principal Forbearance Adjustment from July 2, 2015, on the grounds that this information is not relevant to plaintiff's claims and is more prejudicial than probative.
1. A motion in limine to exclude any evidence plaintiff seeks to introduce concerning other unrelated pending or dismissed suits or judgments from other courts and jurisdictions in which BANA's practices or procedures with mortgage lending, including but not limited to partial claim agreements or loan modifications, are at issue.
2. A motion in limine to exclude evidence or argument in support of plaintiff's claim for emotional distress damages on an intentional tort theory, including that BANA engaged in conduct that constitutes oppression, fraud, or malice, or that BANA acted with intent to vex, injure or annoy, or with conscious disregard of plaintiff's rights in support of her prayer for emotional distress damages on the cause of action for conversion.
3. A motion in limine to exclude evidence or argument that BANA is liable for punitive damages based on an intentional tort theory, including that BANA engaged in conduct that constitutes oppression, fraud, or malice, or that BANA acted with intent to vex, injure or annoy, or with conscious disregard of plaintiff's rights.
Pursuant to Local Rule 281(b)(6), the following special factual information pertains to this action because it involves contracts:
1. The parties dispute whether a binding partial claim agreement came into existence, and therefore dispute whether the following documents ripened into binding agreements: Authorization and Acknowledgment, Negotiation Agreement, Offer of Partial Claim and Agreement, Acceptance of Offer for Partial Claim, and Deed of Trust and Subordinate Note. These documents are the subject of plaintiff's cause of action for breach of contract.
2. Whether the contract and any modifications or collateral agreements were written or oral or both, specifying any document, letter, or other writing relied upon by date and parties, and indicating any oral agreement relied upon by date, place, and parties.
3. Any misrepresentation of fact, mistake, or other matter affecting validity.
4. Any breach of contract.
5. Any waiver or estoppel.
6. The measure of restitution or damages and an itemized statement of the elements thereof.
1. Plaintiff seeks actual damages for breach of contract and conversion
2. Defendant seeks judgment in its favor.
Plaintiff's remaining claims are for alleged breach of contract and conversion, and a corresponding unfair business practices claim under California Business & Professions Code § 17200 relating to both causes of action. The claims and defenses arise under state law. Thus, the points of law at issue at trial are:
Trial briefs addressing the points of law implicated by plaintiff's remaining claims shall be filed with this court no later than
ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT BECOMES FINAL ARE DISMISSED AND DEEMED WAIVED.
None.
The anticipated witnesses for both parties are listed below. Each party may call any witnesses designated by the other.
The parties' exhibits are listed below. No exhibit shall be marked with or entered into evidence under multiple exhibit numbers, and the parties are hereby directed to meet and confer for the purpose of designating joint exhibits. All exhibits must be pre-marked as discussed below. At trial, joint exhibits shall be identified as JX and listed numerically, e.g., JX-1, JX-2. Plaintiff's exhibits shall be listed numerically and defendants' exhibits shall be listed alphabetically. All exhibits must be pre-marked. The parties must prepare three (3) separate exhibit binders for use by the court at trial, with a side tab identifying each exhibit in accordance with the specifications above. Each binder shall have an identification label on the front and spine. The parties must exchange exhibits no later than
Counsel must lodge the sealed original copy of any deposition transcript to be used at trial with the Clerk of the Court no later than
Plaintiff may use the following discovery documents at trial:
Defendant may use the following discovery documents at trial:
Both parties anticipate filing motions in limine, as discussed above.
None.
Plaintiff anticipates seeking amendments for conversion and fraud pursuant to Federal Rule of Civil Procedure 15(b)(1)(2) based on testimony presented at trial. Defendant argues that any such request for amendment at trial is improper based on this court's prior rejection of plaintiff's effort to amend the complaint by adding additional claims for conversion and fraud. (See Doc. No. 71).
The parties conducted a private mediation on March 30, 2017 before retired Santa Clara County Superior Court Judge Kevin Murphy that did not result in a settlement. A court supervised settlement conference was also conducted on May 23, 2017 with United States Magistrate Judge Barbara McAuliffe, which did not result in a settlement. The parties do not anticipate that further settlement conferences would be helpful.
The parties have not agreed to a joint statement of the case because there are many disputed issues of fact. Nonetheless, the parties are directed to meet and confer in order to agree upon a neutral statement of the case that may be read to the prospective jurors during jury selection.
Plaintiff seeks a separate trial to determine punitive damages, if she prevails.
None.
Not applicable.
Special handling of trial exhibits is not anticipated. Plaintiff requests that the court retain exhibits pending appeal decision. However, the court has indicated that its practice is to return trial exhibits to the parties for retention and that it intends to follow that practice in this case.
Not applicable.
Jury trial is set for February 6, 2018 at 1:00 p.m. in Courtroom 5 before the Honorable Dale A. Drozd. Trial is anticipated to last two days. The parties are directed to Judge Drozd's standard procedures available on his webpage on the court's website.
Counsel for both parties are to call Renee Gaumnitz, courtroom deputy, at (559) 499-5652, one week prior to trial to ascertain the status of the trial date.
The parties shall file any proposed jury voir dire
The court directs counsel to meet and confer in an attempt to generate a joint set of jury instructions and verdicts. The parties shall file any such joint set of instructions
Counsel shall e-mail a copy of all proposed jury instructions and verdicts, whether agreed or disputed, as a Word document to
Objections to proposed jury instructions must be filed
As noted above, trial briefs are due
