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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Lesley A Firestein et al vs Wells Fargo Bank NA et al

Case No: 16CV01372
Hearing Date: Fri Feb 09, 2018 9:30

Nature of Proceedings: Motion for Summary Judgment/Adjudication

TENTATIVE RULING:     Defendant Wells Fargo Bank, N.A.’s motion for summary judgment is granted. Judgment is ordered entered in favor of Wells Fargo and against plaintiff.

 

BACKGROUND:

Plaintiff Lesley A. Firestein is the owner of real property located at 570 Bosque Road, Santa Barbara, California 93108. On May 15, 2006, plaintiff obtained a $1.5 million adjustable rate loan. The loan was evidenced by a promissory note and secured by a deed of trust recorded against the property. In April 2014, plaintiff defaulted on the loan. On February 26, 2015, defendant Wells Fargo Bank, N.A., as servicer of the loan, caused a Notice of Default and Election to Sell Under Deed of Trust to be recorded against the property. On May 20, 2015, plaintiff submitted a loan modification application by facsimile to Wells Fargo. On May 29, 2015, Wells Fargo caused a Notice of Trustee’s Sale to be recorded against the property. On June 16, 2015, Wells Fargo notified plaintiff that it had received his loan modification application, but that certain documents were missing. On June 17, 2015, plaintiff sent the requested documents by facsimile to Wells Fargo. On August 12, 2015, Wells Fargo notified plaintiff that his loan modification application had been denied based on the net present value of the Bosque Road property and plaintiff’s financials.

Prior to the foreclosure date, plaintiff filed the present action against Wells Fargo and others, claiming that defendants were negligent in the handling of his loan modification application and had unlawfully initiated foreclosure proceedings. Plaintiff’s second amended complaint (“SAC”), filed on September 13, 2016, alleges causes of action against defendants for (1) injunction to stop foreclosure sale for violation of Civil Code Sections 2923.5 and 2923.6 of the California Homeowner Bill of Rights (“HBOR”), (2) negligence, and (3) violation of the Real Estate Settlement and Procedures Act (“RESPA”) at 12 U.S.C. Section 2601 et seq. Wells Fargo contends that plaintiff’s claims have no merit, factually or legally, and now moves for summary judgment or, in the alternative, summary adjudication.

ANALYSIS:

Request for Judicial Notice

Wells Fargo has asked the court to take judicial notice of (1) Deed of Trust recorded on May 15, 2006 in the Official Records of the Santa Barbara County Recorder’s Office as Instrument No. 2006-0038927, (2) Assignment of Deed of Trust recorded on February 25, 2014 as Instrument No. 2014-0008411, (3) Substitution of Trustee recorded on February 26, 2015 as Instrument No. 2015-0008795, (4) Notice of Default recorded on February 26, 2015 as Instrument No. 2015-0008796, (5) Notice of Trustee’s Sale recorded on May 29, 2015 as Instrument No. 2015-0027939, (6) Voluntary Chapter 11 Bankruptcy Petition filed February 28, 2016, United States Bankruptcy Court, Central District of California, Case No. 9:16-bk-10295-DS, In re Lesley A. Firestein, (7) Order on United States Trustee’s Motion to Dismiss filed June 27, 2017, United States Bankruptcy Court, Central District of California, Case No. 9:16-bk-10295-DS, and (8) Recession of Notice of Default and Election to Sell Under Deed of Trust recorded on July 31, 2017 as Instrument No. 2017-0036317.

Items 1, 2, 3, 4, 5, and 8 are recorded documents for which judicial notice may and will be taken as the documents “are not reasonably subject to dispute and are capable of immediate and accurate determination.” Evid. Code §452, subd. (h). Items 6 and 7 are court records from plaintiff’s bankruptcy proceeding for which judicial notice may and will be taken. Evid. Code §452, subd. (d).

Evidentiary Objections

“In granting or denying a motion for summary judgment . . . , the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. §437c, subd. (q).

Defendant objected to portions of plaintiff’s declaration submitted in opposition to its summary judgment/summary adjudication motion. As to those objections that were material to the disposition of the motion, the court rules:

1. Firestein Dec., ¶14. Overruled. Opposition to a summary judgment motion shall be supported by affidavits, declarations, discovery response, and matters of which judicial notice shall be taken. Code Civ. Proc. §437c, subd. (b)(2). Plaintiff is competent to state whether he was ever contacted by Wells Fargo prior to the recording of the Notice of Default. Evid. Code §702.

2. Firestein Dec., ¶19. Overruled. Plaintiff is competent to state whether he received the “HUD” letter prior to the recording of the Notice of Default.

3. Firestein Dec., ¶20. Overruled. Plaintiff is competent to state whether Wells Fargo told him that he could only cure his default by means of one lump sum payment.

4. Firestein Dec., ¶47. Overruled. Plaintiff is competent to state when Wells Fargo told him that the appeal process was over.

5. Firestein Dec., ¶58. Overruled. Same as 1, above.

6. Firestein Dec., ¶59. Overruled. Same as 2, above.

Motion for Summary Judgment/Summary Adjudication

Summary judgment is properly granted if all the papers submitted in support of the motion show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c, subd. (c). Where the party seeking summary judgment is a defendant, it has met its burden of showing that a cause of action has no merit if it has shown that the plaintiff cannot establish one or more elements of its claim or there is a complete defense to the action. Code Civ. Proc. §437c, subds. (o)(1) and (2). If the defendant meets this initial burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. Code Civ. Proc. §437c, subd. (p)(2). In making this showing, the plaintiff cannot rely on the mere allegations or denials of its pleadings, but instead, must set forth specific facts showing that there is a substantial material issue to be tried by the court or jury. Code Civ. Proc. §437c, subd. (p)(2); see also, Certain Underwriters of Lloyds of London v. Superior Court (1997) 56 Cal.App.4th 952, 956.

A court may also grant summary adjudication as to one or more claims within an action if it is contended that a claim has no merit. Code Civ. Proc. §437c, subd. (f)(1). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action. Ibid. A defendant’s burden of proof on summary adjudication is substantial as it must submit evidence that “either disprove[s] at least one essential element of [the] cause of action . . . or prove[s] an affirmative defense that would bar [the] cause of action. . . . [If] the defendant’s proof leaves at least one plausible theory or basis of recovery unchallenged, the burden is not met. . . .” Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 79-80.

Wells Fargo challenges plaintiff’s first cause of action for injunction for alleged violations of Civil Code Sections 2923.5 and 2923.6 of the HBOR. Section 2923.5 requires the loan servicer to attempt to contact the borrower prior to recording a notice of default. The statute provides, in relevant part:

“(a)(1) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to Section 2924 until both of the following:

“(A) Either 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (e).

* * *

“(2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically.

* * *

“(e) A notice of default may be recorded pursuant to Section 2924 when a mortgage servicer has not contacted a borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgage servicer. For purposes of this section, ‘due diligence’ shall require and mean all of the following:

“(1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.

“(2)(A) After the letter has been sent, the mortgage servicer shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.

* * *

“(3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph (2) have been satisfied, the mortgage servicer shall then send a certified letter, with return receipt requested.

“(4) The mortgage servicer shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours. . . .”

Wells Fargo asserts that, after plaintiff defaulted on his loan, it satisfied its pre-notice of default outreach requirements under Section 2923.5 by telephoning plaintiff multiple times in May 2014 to assess his financial situation and explore options for him to avoid foreclosure. (Nickel Dec., ¶10, Ex. 8.) Defendant, however, was unable to reach plaintiff through these phone calls. (Ibid.) Wells Fargo also sent multiple letters to plaintiff from May 2014 through September 2014 regarding his default and options to avoid foreclosure that included a toll-free telephone number for the United States Department of Housing and Urban Development (“HUD”) so that plaintiff could find a HUD-certified housing counseling agency. (Nickel Dec., ¶7, Exs. 6, 7.) Only after Wells Fargo was unable to reach plaintiff did it initiate foreclosure proceedings by filing a Notice of Default on February 26, 2015. (RJN, Ex. 4.)

Plaintiff denies that anyone from Wells Fargo contacted him, either by telephone or in person, prior to recording the Notice of Default. (Firestein Dec., ¶¶ 14, 58.) Plaintiff also denies receiving a “HUD letter” from Wells Fargo, advising him that he was facing foreclosure and directing him to HUD for assistance. (Firestein Dec., ¶¶ 19, 59.) The only letter plaintiff received from Wells Fargo before the Notice of Default was recorded arrived on April 24, 2015, which was after the Notice of Default was recorded on February 26, 2015. (Firestein Dec., ¶19, Ex. F.) The letter stated that plaintiff’s arrears were $113,878.92 and that $117,100.04 would be due by May 20, 2015. (Ibid.) While the Declaration of Compliance that was attached to the Notice of Default states that Wells Fargo had exercised due diligence under Section 2923.5 and had satisfied all efforts to contact plaintiff, plaintiff claims that this is untrue and that he was never contacted by anyone at Wells Fargo before the Notice of Default was recorded. (RJN, Ex. 4; Firestein Dec., ¶14.) There are triable issues of fact, therefore, whether Wells Fargo complied with Section 2923.5.

Civil Code Section 2923.6 prohibits a loan servicer from recording foreclosure notices while a loan modification application is pending. The statute provides, in relevant part:

“(c) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs:

“(1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired.

* * *

“(d) If the borrower’s application for a first lien loan modification is denied, the borrower shall have at least 30 days from the date of the written denial to appeal the denial and to provide evidence that the mortgage servicer’s determination was in error.

“(e) If the borrower’s application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee's sale until the later of:

“(1) Thirty-one days after the borrower is notified in writing of the denial.

“(2) If the borrower appeals the denial pursuant to subdivision (d), the later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the borrower . . . .”

On April 24, 2015, Wells Fargo provided plaintiff with a blank loan modification application for him to complete, sign, and return, along with the documentation requested in the application. (Nickel Dec., ¶16, Ex. 13.) Approximately two weeks later, plaintiff submitted a loan modification application to Wells Fargo, but certain documents were missing, including copies of plaintiff’s most recent tax returns. (Nickel Dec., ¶19.) On May 11, 2015, Wells Fargo sent a letter to plaintiff indicating that it had not received all of the documents needed to determine whether he was eligible for mortgage assistance. (Nickel Dec., Ex. 15.) On May 29, 2015, Wells Fargo caused a Notice of Trustee’s Sale to be recorded against the subject property. (RJN, Ex. 5.) On June 10, 2015, Wells Fargo received some additional documentation from plaintiff, but it was not until July 31, 2015 that it received all of the materials needed to conduct a loan modification review. (Nickel Dec., ¶¶ 20, 21.) On August 12, 2015, Wells Fargo sent a letter to plaintiff notifying him that he was not eligible for a loan modification based on the net present value of his property. (Nickel Dec., ¶23, Ex. 20.) On August 31, 2015, Wells Fargo received written notice from plaintiff that he intended to appeal the denial of his application. (Nickel, ¶24.)

Wells Fargo denies “dual tracking” plaintiff’s modification application and says that it complied with Section 2923.6 because plaintiff did not submit a “complete” loan modification application until July 31, 2015, two months after defendant had recorded the Notice of Trustee’s Sale. (RJN, Ex. 5; Nickel Dec., ¶21.) However, plaintiff claims that he faxed a complete loan modification application to defendant on May 20, 2015 and, although Wells Fargo requested additional information, the application was, or all intents and purposes, complete. (Firestein Dec., ¶22.) Accordingly, the court finds that there are triable issues of fact whether plaintiff’s modification application was, in fact, “complete” on the day it was initially submitted.

Lastly, Wells Fargo argues that plaintiff cannot establish a material violation of either Section 2923.5 or Section 2923.6 because it remedied any potential violations by rescinding the Notice of Default on July 31, 2017. (RJN, Ex. 8.) Civil Code Section 2924.12 provides that “[a] mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not be liable for any violation that it has corrected and remedied prior to the recordation of the trustee's deed upon sale.” Pursuant to the HBOR, the only relief available to a borrower for violations of Sections 2923.5 and 2923.6 is injunctive relief to prevent the trustee’s sale from taking place. Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 223 (the remedy for a violation of the statute requiring a lender to contact the borrower to explore options to prevent foreclosure before filing a notice of default is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with the statute). Given that there is no pending foreclosure sale to enjoin, plaintiff’s HBOR claim fails as a matter of law.

The court agrees with Wells Fargo and will grant summary adjudication on plaintiff’s HBOR claim, which seeks injunctive relief only. The claim is moot since the foreclosure notice was rescinded.

Plaintiff’s second cause of action is for negligence. To prevail on a cause of action for negligence, the plaintiff must prove that the defendant owed the plaintiff a legal duty to use due care, that the defendant breached the duty, and that the breach was the proximate cause of the injuries suffered by the plaintiff. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673. Defendant contends that plaintiff cannot satisfy the duty element because a financial institution generally owes no duty of care to a borrower when acting in its conventional role as a lender of money. Nymark v. Heart Federal Savings & Loan Association (1991) 231 Cal.App.3d 1089, 1096. Nymark, however, does not stand for the proposition that a lender never owes a duty of care to a borrower. Jolley v. Chase Home Financial, LLC (2013) 213 Cal.App.4th 872, 901. Whether a lender owes a duty of care to a borrower depends on several factors, including the extent to which the transaction was intended to affect the borrower, the foreseeability of harm to the borrower, the degree of certainty that the borrower suffered injury, and the closeness of the connection between the lender’s conduct and the injury suffered. Biakanja v. Irving (1958) 49 Cal.2d 647, 650.

Applying the Biakanja factors, the court in Alvarez v. BAC Home Loans Servicing, LP (2014) 228 Cal.App.4th 941, 948 held that, although a loan servicer is not obligated to offer a loan modification, once it agrees to consider a borrower’s loan modification application, it owes a duty of care not to mishandle the application or negligently conduct the modification process. As the court explained, it is reasonably foreseeable that a borrower could be harmed financially as the result of the lender’s mishandling of a loan modification application since a modified loan, if approved, might avoid foreclosure and other consequences, including damage to the borrower’s credit. Id., at 948-949. Here, plaintiff’s second cause of action for negligence is based on Wells Fargo’s conduct in handling his loan modification application. Plaintiff alleges that Wells Fargo mishandled his modification request. Because it was reasonably foreseeable that plaintiff could be harmed if his loan modification application was not handled correctly (a modified loan might save his home from foreclosure), the court finds that defendant owed plaintiff a duty of care in processing his application.

Wells Fargo next argues that, even if a duty of care existed, it did not breach its duty to plaintiff. Plaintiff alleges that Wells Fargo breached the standard of care by giving him false information regarding the loan modification process. Specifically, plaintiff alleges that Wells Fargo committed negligence by falsely telling him that he could only reinstate his loan through one lump sum payment of $120,000.00, and not through two payments over thirty day, as he had proposed, and that if he was unable to pay the entire amount in one check, he had to seek a loan modification. (Firestein Dec., ¶¶ 16, 20.) However, the information Wells Fargo provided to plaintiff was accurate. The Notice of Default expressly states that the loan servicer and borrower “may [not “must”] mutually agree in writing [to] establish a schedule of payments in order to cure [the] default.” (RJN, Ex. 4.) Further, under Civil Code Section 2924c, in order to reinstate a loan secured by a deed of trust following a default, the borrower is required to pay “the entire amount due” at the time the payment is made, including all “principal, interest, taxes, assessments, insurance premiums, or advances.”

Plaintiff also claims that Wells Fargo committed negligence by telling him that he would never be granted a loan modification so long as there was equity in his property. (Firestein Dec., ¶52.) However, again, this was an accurate statement by Wells Fargo. When there is equity in a property, a loan modification application almost always fails because the recovery through foreclosure will likely exceed the recovery through a loan modification. (Nickel Dec., ¶23.) Here, plaintiff’s loan modification application was denied on August 12, 2015 based on the net present value (“NPV”) of his property. (Nickel Dec., Ex. 20.) Civil Code Section 2923.6, subdivision (a)(2), allows a loan servicer to deny a loan modification application if the loan servicer determines that the anticipated recovery under the loan modification is less than the anticipated recovery through foreclosure based on the property’s net present value. Accordingly, Wells Fargo did not breach any duty to plaintiff by telling him that the equity in his property would likely prevent a loan modification from being issued.

Finally, plaintiff alleges that Wells Fargo committed negligence when it stated that the appeal process had ended on October 7, 2015 and that plaintiff’s only option going forward was to submit a new loan modification application. (Firestein Dec., ¶47.) It is undisputed, however, that on September 4, 2015, plaintiff appealed the denial of his modification application and that on September 25, 2015, Wells Fargo sent a letter to plaintiff, notifying him that his appeal had been denied. (Nickel Dec., ¶29, Ex. 25.) The denial letter reiterated that plaintiff did not meet the requirements for a loan modification under existing guidelines because of the equity in his property. Ibid. Thus, the appeal process was, in fact, over on October 7, 2015.

A moving defendant is entitled to summary adjudication of a claim if it shows that one or more elements of the cause of action cannot be established. Code Civ. Proc. §437c, subd. (f)(1). Because plaintiff has failed to establish that Wells Fargo breached any duty of care, his second cause of action for negligence fails and defendant’s motion for summary adjudication will be granted.

Plaintiff’s third cause of action is for alleged violations of RESPA (12 U.S.C. §2601 et seq.). RESPA provides that, upon receipt of a qualified written request (“QWR”) for information from a borrower concerning an account, the loan servicer must acknowledge receipt of the request within 5 business days and substantively respond to the request within 30 days. 12 U.S.C. §2605, subds. (e)(1)(A), (e)(2). A communication qualifies as a QWR if it seeks information relating to the “servicing” of a loan. 12 U.S.C. §2605, subd. (e)(1)(A). “Servicing” means to receive scheduled periodic payments from the borrower as required under the loan. 12 U.S.C. §2605, subd. (i)(3). A written request that does not concern the “servicing” of a loan is not a proper QWR. MorEquity, Inc. v. Naeem (N.D. Ill. 2000) 118 F.Supp.2d 885, 900-901. Absent a proper QWR, a servicer has no duty to send information to the borrower under RESPA. Jeffries v. Ameriquest Mortgage Company (E.D. Pa. 2008) 543 F.Supp.2d 368, 385.

In the present case, plaintiff alleges that he submitted three QWR’s to Wells Fargo, the first on June 18, 2015, the second on September 9, 2015, and the third on September 12, 2015. (Firestein Dec., ¶¶ 29, 44) In the June 2015 submittal, plaintiff asked to see Wells Fargo’s “investor guidelines” relating to loan modifications. (Firestein Dec., ¶29.) In the two September 2015 submittals, plaintiff asked defendant to provide him with “a COMPLETE TRANSACTION HISTORY for my loan so I may check for accuracy.” (Firestein Dec., ¶44, Ex. R.) Wells Fargo argues that inquiries requesting loan modification information do not constitute a QWR, and the court agrees, but plaintiff also sought information relating to his loan history to see if the alleged arrearages in the amount of $120,000.00 had been calculated correctly by defendant, which clearly qualifies as a QWR under RESPA since the requests centered on the servicing of his loan. 12 U.S.C. §2605, subd. (i)(3).

Plaintiff claims that Wells Fargo failed to respond to his QWR’s in a timely and complete manner. (SAC, ¶102.) Under RESPA, a servicer must respond to a QWR within 30 business days, unless the servicer notifies the borrower before the end of that period and requests an extension, in which case the time to respond is extended up to 15 days. 12 U.S.C. §2605, subd. (e)(4). Wells Fargo acknowledged receipt of plaintiff’s requests on September 18, 2015, within 7 business days of the September 9, 2015 letter, and within 5 business days of the September 12, 2015 letter. (Nickel Dec., ¶31, Ex. 28.) On September 29, 2015, Wells Fargo sent a letter to plaintiff indicating that it would need a 14-day extension to respond to his inquiries. (Nickel Dec., ¶31.) Thus, a substantive response to plaintiff’s September 9, 2015 QWR was due in 44 days, or November 12, 2015. Although Wells Fargo did not provide a transaction history to plaintiff until December 11, 2015 (20 business days late), the information was provided to plaintiff. (Nickel Dec., ¶33, Ex. 30.) On October 21, 2016, Wells Fargo provided plaintiff with another complete transaction history. (Nickel Dec., ¶41, Ex. 37.)

A borrower that brings a claim under RESPA may be entitled to statutory damages up to $2,000.00 per violation where it is shown that the servicer was guilty of a “pattern or practice of noncompliance” with the Act. 12 U.S.C. §2650, subd. (f)(1)(B). If the borrower is unable to establish a pattern or practice of noncompliance, the borrower is limited to “actual damages” resulting from the servicer’s failure to comply. 12 U.S.C. §2650, subd. (f)(1)(A). Here, plaintiff has not offered any evidence that Wells Fargo engaged in a “pattern or practice” of not complying with RESPA. The only RESPA violation that plaintiff has asserted was the failure of Wells Fargo to respond timely to his two QWR’s in September 2015 for a transaction history. Accordingly, plaintiff is limited to actual damages only.

In the SAC, plaintiff alleges that he suffered emotional distress as the result of Wells Fargo’s delay in responding to his requests for a transaction history. (SAC, ¶104.) Under RESPA, actual damages includes emotional distress damages. Ploog v. HomeSide Lending, Inc. (N.D. Ill. 2002) 209 F.Supp.2d 863, 870. Plaintiff, however, has not offered any evidence in support of his emotional distress claim. On summary judgment, once the defendant has met its initial burden of proof, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action. Code Civ. Proc. §437c, subd. (p)(2). This showing must be supported by specific facts, not mere allegations or denials. Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282, 1286. Because plaintiff has failed to present any evidence that Wells Fargo’s 20-day delay in responding to his two QWR’s caused him any damages, his third cause of action fails.

Based on the foregoing, the court will grant Wells Fargo’s motion for summary judgment. The court finds that there are no triable issues of material fact and defendant is entitled to judgment as a matter of law.

 
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