Coe v. Nationstar Mortg.
| Decision Date | 10 May 2023 |
| Docket Number | E076981 |
| Parties | EVANGELINA RODRIGUES COE, Plaintiff and Appellant, v. NATIONSTAR MORTGAGE LLC et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino No. CIVDS1620775. Bryan Foster, Judge. Affirmed.
Evangelina Rodrigues Coe, in pro. per., for Plaintiff and Appellant.
Troutman Pepper Hamilton Sanders, Justin D. Balser, and Katalina Baumann for Defendant and Respondent Nationstar Mortgage LLC.
McCarthy & Holthus and Melissa Robbins Coutts for Defendant and Respondent Reverse Mortgage Funding LLC.
Evangelina Rodrigues Coe took out a reverse mortgage loan on her home. However, she failed to make repairs, to pay property taxes, and to purchase property insurance, as the loan terms required. Based on these defaults, Nationstar Mortgage LLC (Nationstar), as the assignee of the trust deed, accelerated the loan. Coe failed to pay. Nationstar initiated foreclosure proceedings, then further assigned the trust deed to Reverse Mortgage Funding LLC (Reverse), which completed the foreclosure.
Coe filed this action against Nationstar and Reverse (defendants), among others, asserting causes of action against them for wrongful foreclosure, fraud, and cancelation of instruments. The trial court granted judgment on the pleadings in favor of Nationstar on the fraud cause of action. It then granted summary judgment in favor of both defendants on the remaining causes of action.
Coe appeals. We will conclude that many of her contentions have been forfeited; with respect to those that have been preserved, she has not shown error. Hence, we will affirm.
The only evidence that Coe submitted in opposition to summary judgment was a declaration by her then-attorney. After some boilerplate, it set forth only five substantive paragraphs. The trial court sustained objections to four of these. Coe does not contend that this was error. Her response to defendants' separate statements never cited the sole surviving paragraph.
In other words, Coe submitted virtually no evidence.
In her responses to defendants' separate statements, she listed some facts as "[d]isputed," usually (though not always) adding contrary factual assertions. However, she almost never cited any evidence supporting her assertions, as she was required to do. (Code Civ. Proc., § 437c, subd. (b)(3).) And understandably so, as, again, she had submitted no evidence.[1]
For example, in response to defendants' assertion that she failed to pay property taxes, she provided a detailed list of the dates and amounts of payments that she had supposedly made. However, there was no evidence of this.
We therefore disregard all assertions in Coe's separate statements that are not cited to supporting evidence in the record. (See Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 319 [].)
In May 2006, Coe took out a reverse mortgage loan, secured by her house, for up to $544,185. The lender was Seattle Mortgage Company.[2]
According to the complaint, "[t]he [loan] documents were in English although [Coe's] first language is Spanish" and she is "most comfortable" with Spanish. A person acting for the lender explained them to her in Spanish. However, she was not provided with a Spanish translation of the loan documents.[3]
The trust deed required Coe to pay taxes and insurance and to provide evidence of payment to the lender.
A repair rider to the loan agreement required Coe to carry out certain specified repairs[4] by November 16, 2006 (later extended to January 21, 2007). It set aside $12,600 out of the loan proceeds to pay for the repairs. It also required Coe to provide documentation of the repairs, on request.
The note and the trust deed both provided that the lender could require immediate payment in full if Coe failed to perform any obligation under the trust deed.
In July 2006, Seattle Mortgage Company assigned the deed of trust to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Seattle Savings Bank.
In November 2012, MERS, as nominee for Bank of America, N.A. - i.e., not as nominee for Seattle Savings Bank - assigned the deed of trust to Champion Mortgage Company (Champion). Champion is a d/b/a name of Nationstar.
In February 2016, Champion substituted Title Trust Deed Service Company (Title) as trustee.
In March 2016, MERS, this time as nominee for Seattle Savings Bank, assigned the deed of trust to MERS, as nominee for Bank of America, N.A.
In April 2016, Reverse received the original note. In May 2016, Champion assigned the deed of trust to Reverse.
Coe never provided proof that she had made the repairs required by the repair rider. She also failed to pay property taxes and insurance.
Starting in 2007, Coe was repeatedly notified that her line of credit had been suspended due to failure to comply with the repair rider. She was also repeatedly notified that she had failed to pay taxes and insurance.
On October 7, 2015, Champion sent Coe a "Mortgage Due &Payable Notification," stating that the loan was in default due to failure to pay taxes and insurance, accelerating the loan, and demanding full payment within 30 days. At that point, Coe owed $278,298.02.
In March 2016, Title recorded a notice of default; in June 2016, it recorded a notice of trustee's sale; and in July 2016, Title sold the property to Reverse at a foreclosure sale.
In 2016, Coe filed this action against multiple defendants, including Nationstar and Reverse. The operative complaint asserted causes of action against Nationstar and Reverse for fraud, wrongful foreclosure, and cancelation of instruments.[5]
Defendants filed the following motions:
I. Nationstar filed a motion for judgment on the pleadings. It argued:
A. Regarding the fraud cause of action, that:
1. It was barred by the statute of limitations.
2. Coe had not pleaded fraud with sufficient specificity.
B. Regarding both the wrongful foreclosure and cancellation of instruments causes of action, that:
1. Coe had no standing to challenge either the assignment to Nationstar or Nationstar's substitution of Title.
2. Coe failed to allege prejudice.
3. Coe failed to allege tender.
II. Nationstar and Reverse filed separate motions for summary judgment.
1. Regarding the fraud cause of action:
a. It was barred by the statute of limitations.
b. Coe ratified the loan. c. The evidence conclusively disproved fraud.
2. Regarding the wrongful foreclosure cause of action:
a. The evidence conclusively proved that the loan was in default.
b. The evidence conclusively proved that the foreclosure was valid.
3. Regarding the cancelation of instruments cause of action:
a. A trustee can foreclose even if its assignment has not been recorded. b. Coe failed to tender.
1. Regarding the fraud cause of action:
a. It was barred by the statute of limitations.
b. Coe ratified the loan.
c. Reverse did not originate the loan and thus did not make any of the alleged misrepresentations.
d. The evidence conclusively proved that there was no fraud.
2. Regarding the wrongful foreclosure cause of action:
a. The foreclosure was not illegal, fraudulent, or willfully oppressive.
b. Coe was not prejudiced.
c. Coe failed to tender.
3. Regarding the cancelation of instruments cause of action:
a. The instruments to be canceled were not void or voidable.
b. A trustee can foreclose even if its assignment has not been recorded.
c. Coe failed to tender.
At the hearing on the motions, Coe's then-counsel failed to appear.
The trial court granted Nationstar's motion for judgment on the pleadings with respect to fraud but denied it with respect to the other causes of action. It ruled that the fraud allegations were not sufficiently specific.
The trial court also granted Nationstar's motion for summary judgment. It ruled that the fraud cause of action was moot, in light of its ruling granting judgment on the pleadings on that cause of action. It also ruled that the foreclosure was not illegal, fraudulent, or willfully oppressive and that the instruments to be canceled were not void or voidable.
Finally, the trial court granted Reverse's motion for summary judgment. It ruled that the deed of trust was "properly transferred . . ., ultimately to Reverse," and that there was no evidence of fraud by Reverse. It also ruled again that the foreclosure was not illegal, fraudulent, or willfully oppressive and that the instruments to be canceled were not void or voidable.
Coe filed a motion for new trial. Nationstar filed an opposition. Reverse also filed an opposition, but it has not been included in the appellate record. The trial court denied the motion. It then entered separate judgments against Coe - one in favor of Nationstar and one in favor of Reverse.
Coe was in pro. per. most of the time. However, she did have counsel for about eight months, which encompassed most of the procedural events at issue in this appeal, from the filing of the operative (sixth amended) complaint through the order granting the motions for summary judgment. Coe filed the new trial motion in propria persona, even though she still had an attorney of record. About a week later, she filed a substitution of attorney.
In connection with her Civil Case Information Statement, Coe indicated that she was appealing only from the judgment in...
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