Preview
1 MARY KATE SULLIVAN (State Bar No. 180203)
LASZLO LADI (State Bar No. 265564)
2 ll@severson.com
SEVERSON & WERSON, A Professional Corporation 3/25/2021
3 One Embarcadero Center, Suite 2600
San Francisco, California 94111
4 Telephone: (415) 398-3344
Facsimile: (415) 956-0439
5
Attorneys for Defendants
6 WELLS FARGO BANK, N.A.; and BANK OF
AMERICA, N.A.
7
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF BUTTE
11
12 JOHN BENEDICT, an individual; DOREEN Case No. 19CV03836
BENEDICT, an individual,
13 Assigned for All Purposes to:
Plaintiffs, Hon. Tamara L. Mosbarger, Dept. 6
14
vs. SEPARATE STATEMENT OF
15 UNDISPUTED MATERIAL FACTS IN
WELLS FARGO BANK, N.A., a business SUPPORT OF DEFENDANTS’ MOTION
16 entity; BANK OF AMERICA, N.A., a FOR SUMMARY JUDGMENT, OR IN
business entity; CLEAR RECON CORP., a THE ALTERNATIVE, SUMMARY
17 business entity; and DOES 1 to 50, inclusive, ADJUDICATION
18 Defendants. Date: June 16, 2021
Time: 9:00 a.m.
19 Dept.: 1
20 Action Filed: December 30, 2019
Trial Date: August 23, 2021
21
22 Pursuant to California Code of Civil Procedure section 437c(b), defendants Wells Fargo
23 Bank, N.A. (“Wells Fargo”) and Bank of America, N.A. (“Bank of America”) (collectively,
24 “Defendants”) submit this separate statement of undisputed material facts in support of their
25 motion for summary judgment, or in the alternative summary adjudication, in relation to the
26 complaint filed by plaintiffs John Benedict and Doreen Benedict (collectively, “Plaintiffs”).
27 ///
28 ///
07685.2375/15545732.2 1
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 SUMMARY JUDGMENT
2 A. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE NO
TRIABLE ISSUE OF FACT EXISTS WITH REGARD TO ANY CAUSE OF
3 ACTION IN THE COMPLAINT
4
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
5 Supporting Evidence: Evidence:
6 1. Undisputed Material Fact
7 Plaintiffs took out a mortgage loan from
Wells Fargo in November 2005 in the
8 amount of $884,000 (the “Loan”), which
they used to purchase the real property at
9 88 Almond Avenue, Oroville, California
(the “Property”), and which consisted of a
10
promissory note and a Deed of Trust
11 recorded against the Property.
12 Supporting Evidence
13 Deposition of John Benedict (“Benedict
Depo.”), at 38:2–4, 38:14–40:17, Exs. 2, 3
14 [attached as Exhibit B to the declaration of
Laszlo Ladi (“Ladi Decl.”)].
15
First Amended Complaint (“FAC”) ¶ 8
16 [attached as Exhibit A to the Ladi Decl.].
17 Request for Judicial Notice (“RJN”), Ex.
A
18
Declaration of Jaci Marie Stevens
19 (“Stevens Decl.”), ¶¶ 3,4, Exs. A, B.
20
21
22
23
24
25
26
27
28
07685.2375/15545732.2 2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 2. Undisputed Material Fact
4 In late May 2018 and early June 2018, Mr.
Benedict had a series of calls with Wells
5 Fargo in which he was told (among other
things) that the Loan may be ineligible for
6 a second loan modification.
7 Supporting Evidence
8 Benedict Depo., at 75:5–77:6, Ex. 35,
79:1–81:14, Ex. 36, 143:25–144:11..
9
Stevens Decl., ¶¶ 8–10, 29, Exs. F, G, S–U
10 [including call recordings on May 31,
2018 and June 6, 2018].
11
12 3. Undisputed Material Fact
13 In September 2018, when Plaintiffs again
asked for assistance based on wind storm
14 damage to the Property, Wells Fargo
provided Plaintiffs disaster relief
15 assistance.
16 Supporting Evidence
17 Stevens Decl., ¶ 11, Ex. H.
18 Benedict Depo., at 15:18–18:3 [describing
claims generally, including 3-month
19 payment postponement in either October
or November 2018 based on uninsured
20 damage to the Property], 75:1–4 [testifying
he couldn’t remember exactly when
21 Plaintiffs started to miss payments],
81:15–84:21 [describing the “plan” offered
22 in either October 2018 or November 2018
to help with damage to the Property due a
23 wind-storm], 85:19–87:22 [testifying that
the “plan” was due to wind-storm damage,
24 not the Paradise wildfires], 98:7–13
[testifying regarding the general time-line
25 of the two plans, but also stating he didn’t
remember exactly], 125:15–126:13
26 [testifying generally that his memory
wasn’t precise about dates during the loss
27 mitigation process].
28
07685.2375/15545732.2 3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 See also FAC ¶ 12 [describing it as
October 2018 deferment plan].
4
4. Undisputed Material Fact
5
The terms of the assistance related to the
6 wind storm damage were confirmed in a
letter dated September 11, 2018, which
7 stated, among other things, Plaintiffs were
not required to make payments for 90-
8
days, during this period there would be no
9 late fees, no reporting of a past-due status
to the credit reporting agencies, no referral
10 to foreclosure, but that afterwards, the
missed payments would need to be
11 resolved.
12 Supporting Evidence
13 Stevens Decl., ¶ 12, Ex. I.
14 Benedict Depo., at 87:1–88:20, Ex. 15
15 [testifying he did not know if he received
the letter, didn’t think it applied to
16 Plaintiffs, but also testifying that a
windstorm lead to widespread damage in
17 the area earlier in 2018], 92:13–93:22, Ex.
16 [testifying he likely ignored another
18 letter, which explained the disaster relief
19 assistance was close to ending], 98:7–13
[testifying regarding the general time-line
20 of the two plans, but also stating he didn’t
remember exactly].
21
See also FAC ¶ 12 [describing it as
22 October 2018 deferment plan].
23
24
25
26
27
28
07685.2375/15545732.2 4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 5. Undisputed Material Fact
4 In November 2018, due to the Paradise
wildfires, Wells Fargo provided Plaintiffs
5 additional disaster relief assistance.
6 Supporting Evidence
7 Stevens Decl., ¶¶ 13, 29, Ex. J, S, T
[including call recording on November 19,
8 2018 in which Plaintiffs were told there
was already disaster relief assistance on
9 the Loan through February 10, 2019 due to
the Paradise wildfires].
10
Benedict Depo., at 15:18–18:3 [describing
11 claims generally, including second
payment postponement in December 2018
12 after wildfires], 85:19–86:22 [testifying
that the additional three-month payment
13 postponement was due to Paradise
wildfires], 93:23–94:23 [describing
14 generally second 3-month payment
postponement due to Paradise fires in
15 about December 2018], 98:7–13 [testifying
regarding the general time-line of the two
16 plans, but also stating he didn’t remember
exactly], 116:20–117:20 [testifying the
17 second three-month extension was disaster
relief due to the Paradise fires].
18
See also FAC ¶ 13 [describing it as
19 January 2019 deferment plan].
20
21
22
23
24
25
26
27
28
07685.2375/15545732.2 5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 6. Undisputed Material Fact
4 The terms of the assistance related to the
wildfires were confirmed in a letter dated
5 November 14, 2018, which stated, among
other things, Plaintiffs were not required to
6 make payments for 90-days, during this
period there would be no late fees, no
7
reporting of a past-due status to the credit
8 reporting agencies, no referral to
foreclosure, but that afterwards, the missed
9 payments would need to be resolved.
10 Supporting Evidence
11 Stevens Decl., ¶ 14, Ex. K.
12 Benedict Depo., at 97:7–20, Ex. 17
[testifying he did not know if he received
13 the letter, describing letter as
“advertisement” that Wells Fargo sent that
14 was irrelevant to Plaintiffs, and that he
likely would have thrown it in the trash],
15 97:23–98:6, Ex. 18 [testifying he likely
ignored another letter which explained the
16 disaster relief assistance was close to
ending].
17
See also FAC ¶ 13 [describing it as
18 January 2019 deferment plan].
19
7. Undisputed Material Fact
20
The Deed of Trust contains a provision
21 that states “any forbearance by Lender in
exercising any right or remedy...shall not
22 be a waiver of or preclude the exercise the
exercise of any right or remedy.”
23
Supporting Evidence
24
Stevens Decl., ¶ 3, Ex. B.
25
Benedict Depo., at 39:16–40:15, Ex 3.
26
RJN, Ex. A.
27
28
07685.2375/15545732.2 6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 8. Undisputed Material Fact
4 There is no written agreement in which
Defendants agreed to waive the payments
5 that were missed during the September
2018 and November 2018 disaster relief
6 assistance, and/or in which Defendants
agreed to accept those missed payments
7
beyond the dates specified in the
8 September 11, 2018 and November 14,
2018 letters.
9
Supporting Evidence
10
Stevens Decl., ¶ 15.
11
Benedict Depo., at 88:22–89:10 [testifying
12 there was no written document
memorializing what he understood
13
described as the “plan”], 93:23–94:23
14 [describing an extension of the first so-
called “plan”].
15
9. Undisputed Material Fact
16
The February 2019 mortgage assistance
17 application submitted by Plaintiffs
included an “Agreement and
18 Acknowledgment” page signed by both
Plaintiffs that indicated, among other
19 things, that the materials submitted by
Plaintiffs would be used to determine their
20 eligibility for mortgage assistance but that
Wells Fargo was not obligated to offer
21 them assistance based solely on the
statements in the application.
22
Supporting Evidence
23
Stevens Decl., ¶ 16, Ex. L.
24
Benedict Depo., at 118:1–119:12, Ex. 19.
25
26
27
28
07685.2375/15545732.2 7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 10. Undisputed Material Fact
4 When Plaintiffs submitted an earlier
mortgage assistance application in October
5 2016, which led to their 2017 loan
modification, they signed a similar
6 “Agreement and Acknowledgment” that
indicated, among other things, that the
7 materials submitted by Plaintiffs would be
used to determine their eligibility for
8 mortgage assistance but that Wells Fargo
was not obligated to offer them assistance
9 based solely on the statements in the
application.
10
Supporting Evidence
11
Stevens Decl., ¶ 5, Ex. D
12
Benedict Depo., at 43:13–44:10, Ex. 4.
13
11. Undisputed Material Fact
14
When Plaintiffs submitted updated
15 mortgage assistance applications on June
11, 2019, and October 17, 2019, each
16 application had a “Agreement and
Acknowledgment” page that indicated,
17 among other things, that the materials
submitted by Plaintiffs would be used to
18 determine their eligibility for mortgage
assistance but that Wells Fargo was not
19 obligated to offer them assistance based
solely on the statements in the application.
20
Supporting Evidence
21
Stevens Decl., ¶¶ 18, 20, Exs. M, N.
22
Benedict Depo., at 128:1–10, Ex. 22,
23 134:10–20, Ex. 26.
24
25
26
27
28
07685.2375/15545732.2 8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 12. Undisputed Material Fact
4 In November 2019, after Wells Fargo
eventually received a complete application
5 from Plaintiffs, Wells Fargo denied
Plaintiffs for a loan modification based on
6 the fact that the Loan had received the
maximum number of modifications
7 allowed.
8 Supporting Evidence
9 Stevens Decl., ¶¶ 21, 22, Ex. O.
10 Benedict Depo., at 140:17–141:7, Ex. 28.
11 FAC ¶ 22.
12 13. Undisputed Material Fact
13 Plaintiffs’ appeal of their November 13,
2019 denial was also denied on November
14 22, 2019.
15 Supporting Evidence
16 Stevens Decl., ¶¶ 23, 24, Exs. P, Q.
17 Benedict Depo., at 141:11–142:8, Ex. 29,
143:10–18, 143:20–24, Ex. 30.
18
19 14. Undisputed Material Fact
20 A notice of default on the Loan was
recorded on October 9, 2019.
21
Supporting Evidence
22
Stevens Decl., ¶ 26, Ex. R.
23
Benedict Depo., at 160:5–8.
24
RJN, Ex. D.
25
FAC ¶ 19.
26
27
28
07685.2375/15545732.2 9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 15. Undisputed Material Fact
4 No notice of sale has been issued or
recorded, no foreclosure sale has been
5 scheduled, and no foreclosure sale has
taken place.
6
Supporting Evidence
7
Stevens Decl., ¶ 27.
8
Benedict Depo., at 160:5–8.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
07685.2375/15545732.2 10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 SUMMARY ADJUDICATION
2 B. ISSUE ONE – THE FIRST CAUSE OF ACTION FOR NEGLIGENCE HAS NO
MERIT BECAUSE NO TRIABLE ISSUES OF FACT EXIST TO OPPOSE
3 DEFENDANTS’ RIGHT TO JUDGMENT ON THIS CAUSE OF ACTION
4
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
5 Supporting Evidence: Evidence:
6 1. Undisputed Material Fact
7 Plaintiffs took out a mortgage loan from
Wells Fargo in November 2005 in the
8 amount of $884,000 (the “Loan”), which
they used to purchase the real property at
9 88 Almond Avenue, Oroville, California
(the “Property”), and which consisted of a
10
promissory note and a Deed of Trust
11 recorded against the Property.
12 Supporting Evidence
13 Benedict Depo., at 38:2–4, 38:14–40:17,
Exs. 2, 3 [attached as Exhibit B to the Ladi
14 Decl.].
15 FAC ¶ 8 [attached as Exhibit A to the Ladi
Decl.].
16
RJN, Ex. A
17
Stevens Decl., ¶¶ 3,4, Exs. A, B.
18
2. Undisputed Material Fact
19
In late May 2018 and early June 2018, Mr.
20 Benedict had a series of calls with Wells
Fargo in which he was told (among other
21
things) that the Loan may be ineligible for
22 a second loan modification.
23 Supporting Evidence
24 Benedict Depo., at 75:5–77:6, Ex. 35,
79:1–81:14, Ex. 36, 143:25–144:11.
25
Stevens Decl., ¶¶ 8–10, 29, Exs. F, G, S–U
26 [including call recordings on May 31,
2018 and June 6, 2018].
27
28
07685.2375/15545732.2 11
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 3. Undisputed Material Fact
4 In September 2018, when Plaintiffs again
asked for assistance based on wind storm
5 damage to the Property, Wells Fargo
provided Plaintiffs disaster relief
6 assistance.
7 Supporting Evidence
8 Stevens Decl., ¶ 11, Ex. H.
9 Benedict Depo., at 15:18–18:3 [describing
claims generally, including 3-month
10 payment postponement in either October
or November 2018 based on uninsured
11 damage to the Property], 75:1–4 [testifying
he couldn’t remember exactly when
12 Plaintiffs started to miss payments],
81:15–84:21 [describing the “plan” offered
13 in either October 2018 or November 2018
to help with damage to the Property due a
14 wind-storm], 85:19–87:22 [testifying that
the “plan” was due to wind-storm damage,
15 not the Paradise wildfires], 98:7–13
[testifying regarding the general time-line
16 of the two plans, but also stating he didn’t
remember exactly], 125:15–126:13
17 [testifying generally that his memory
wasn’t precise about dates during the loss
18 mitigation process].
19 See also FAC ¶ 12 [describing it as
20 October 2018 deferment plan].
21
22
23
24
25
26
27
28
07685.2375/15545732.2 12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 4. Undisputed Material Fact
4 The terms of the assistance related to the
wind storm damage were confirmed in a
5 letter dated September 11, 2018, which
stated, among other things, Plaintiffs were
6 not required to make payments for 90-
days, during this period there would be no
7
late fees, no reporting of a past-due status
8 to the credit reporting agencies, no referral
to foreclosure, but that afterwards, the
9 missed payments would need to be
resolved.
10
Supporting Evidence
11
Stevens Decl., ¶ 12, Ex. I.
12
Benedict Depo., at 87:1–88:20, Ex. 15
13
[testifying he did not know if he received
14 the letter, didn’t think it applied to
Plaintiffs, but also testifying that a
15 windstorm lead to widespread damage in
the area earlier in 2018], 92:13–93:22, Ex.
16 16 [testifying he likely ignored another
letter, which explained the disaster relief
17
assistance was close to ending], 98:7–13
18 [testifying regarding the general time-line
of the two plans, but also stating he didn’t
19 remember exactly].
20 See also FAC ¶ 12 [describing it as
October 2018 deferment plan].
21
22
23
24
25
26
27
28
07685.2375/15545732.2 13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 5. Undisputed Material Fact
4 In November 2018, due to the Paradise
wildfires, Wells Fargo provided Plaintiffs
5 additional disaster relief assistance.
6 Supporting Evidence
7 Stevens Decl., ¶¶ 13, 29, Ex. J, S, T
[including call recording on November 19,
8 2018 in which Plaintiffs were told there
was already disaster relief assistance on
9 the Loan through February 10, 2019 due to
the Paradise wildfires].
10
Benedict Depo., at 15:18–18:3 [describing
11 claims generally, including second
payment postponement in December 2018
12 after wildfires], 85:19–86:22 [testifying
that the additional three-month payment
13 postponement was due to Paradise
wildfires], 93:23–94:23 [describing
14 generally second 3-month payment
postponement due to Paradise fires in
15 about December 2018], 98:7–13 [testifying
regarding the general time-line of the two
16 plans, but also stating he didn’t remember
exactly], 116:20–117:20 [testifying the
17 second three-month extension was disaster
relief due to the Paradise fires].
18
See also FAC ¶ 13 [describing it as
19 January 2019 deferment plan].
20
21
22
23
24
25
26
27
28
07685.2375/15545732.2 14
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 6. Undisputed Material Fact
4 The terms of the assistance related to the
wildfires were confirmed in a letter dated
5 November 14, 2018, which stated, among
other things, Plaintiffs were not required to
6 make payments for 90-days, during this
period there would be no late fees, no
7
reporting of a past-due status to the credit
8 reporting agencies, no referral to
foreclosure, but that afterwards, the missed
9 payments would need to be resolved.
10 Supporting Evidence
11 Stevens Decl., ¶ 14, Ex. K.
12 Benedict Depo., at 97:7–20, Ex. 17
[testifying he did not know if he received
13 the letter, describing letter as
“advertisement” that Wells Fargo sent that
14 was irrelevant to Plaintiffs, and that he
likely would have thrown it in the trash],
15 97:23–98:6, Ex. 18 [testifying he likely
ignored another letter which explained the
16 disaster relief assistance was close to
ending].
17
See also FAC ¶ 13 [describing it as
18 January 2019 deferment plan].
19
7. Undisputed Material Fact
20
The Deed of Trust contains a provision
21 that states “any forbearance by Lender in
exercising any right or remedy...shall not
22 be a waiver of or preclude the exercise the
exercise of any right or remedy.”
23
Supporting Evidence
24
Stevens Decl., ¶ 3, Ex. B.
25
Benedict Depo., at 39:16–40:15, Ex 3.
26
RJN, Ex. A.
27
28
07685.2375/15545732.2 15
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 8. Undisputed Material Fact
4 There is no written agreement in which
Defendants agreed to waive the payments
5 that were missed during the September
2018 and November 2018 disaster relief
6 assistance, and/or in which Defendants
agreed to accept those missed payments
7
beyond the dates specified in the
8 September 11, 2018 and November 14,
2018 letters.
9
Supporting Evidence
10
Stevens Decl., ¶ 15.
11
Benedict Depo., at 88:22–89:10 [testifying
12 there was no written document
memorializing what he understood
13
described as the “plan”], 93:23–94:23
14 [describing an extension of the first so-
called “plan”].
15
9. Undisputed Material Fact
16
The February 2019 mortgage assistance
17 application submitted by Plaintiffs
included an “Agreement and
18 Acknowledgment” page signed by both
Plaintiffs that indicated, among other
19 things, that the materials submitted by
Plaintiffs would be used to determine their
20 eligibility for mortgage assistance but that
Wells Fargo was not obligated to offer
21 them assistance based solely on the
statements in the application.
22
Supporting Evidence
23
Stevens Decl., ¶ 16, Ex. L.
24
Benedict Depo., at 118:1–119:12, Ex. 19.
25
26
27
28
07685.2375/15545732.2 16
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 10. Undisputed Material Fact
4 When Plaintiffs submitted an earlier
mortgage assistance application in October
5 2016, which led to their 2017 loan
modification, they signed a similar
6 “Agreement and Acknowledgment” that
indicated, among other things, that the
7 materials submitted by Plaintiffs would be
used to determine their eligibility for
8 mortgage assistance but that Wells Fargo
was not obligated to offer them assistance
9 based solely on the statements in the
application.
10
Supporting Evidence
11
Stevens Decl., ¶ 5, Ex. D
12
Benedict Depo., at 43:13–44:10, Ex. 4.
13
11. Undisputed Material Fact
14
When Plaintiffs submitted updated
15 mortgage assistance applications on June
11, 2019, and October 17, 2019, each
16 application had a “Agreement and
Acknowledgment” page that indicated,
17 among other things, that the materials
submitted by Plaintiffs would be used to
18 determine their eligibility for mortgage
assistance but that Wells Fargo was not
19 obligated to offer them assistance based
solely on the statements in the application.
20
Supporting Evidence
21
Stevens Decl., ¶¶ 18, 20, Exs. M, N.
22
Benedict Depo., at 128:1–10, Ex. 22,
23 134:10–20, Ex. 26.
24
25
26
27
28
07685.2375/15545732.2 17
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting
2 Supporting Evidence: Evidence:
3 12. Undisputed Material Fact
4 In November 2019, after Wells Fargo
eventually received a complete application
5
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1 MARY KATE SULLIVAN (State Bar No. 180203) LASZLO LADI (State Bar No. 265564) 2 ll@severson.com SEVERSON & WERSON, A Professional Corporation 3/25/2021 3 One Embarcadero Center, Suite 2600 San Francisco, California 94111 4 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 5 Attorneys for Defendants 6 WELLS FARGO BANK, N.A.; and BANK OF AMERICA, N.A. 7 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF BUTTE 11 12 JOHN BENEDICT, an individual; DOREEN Case No. 19CV03836 BENEDICT, an individual, 13 Assigned for All Purposes to: Plaintiffs, Hon. Tamara L. Mosbarger, Dept. 6 14 vs. SEPARATE STATEMENT OF 15 UNDISPUTED MATERIAL FACTS IN WELLS FARGO BANK, N.A., a business SUPPORT OF DEFENDANTS’ MOTION 16 entity; BANK OF AMERICA, N.A., a FOR SUMMARY JUDGMENT, OR IN business entity; CLEAR RECON CORP., a THE ALTERNATIVE, SUMMARY 17 business entity; and DOES 1 to 50, inclusive, ADJUDICATION 18 Defendants. Date: June 16, 2021 Time: 9:00 a.m. 19 Dept.: 1 20 Action Filed: December 30, 2019 Trial Date: August 23, 2021 21 22 Pursuant to California Code of Civil Procedure section 437c(b), defendants Wells Fargo 23 Bank, N.A. (“Wells Fargo”) and Bank of America, N.A. (“Bank of America”) (collectively, 24 “Defendants”) submit this separate statement of undisputed material facts in support of their 25 motion for summary judgment, or in the alternative summary adjudication, in relation to the 26 complaint filed by plaintiffs John Benedict and Doreen Benedict (collectively, “Plaintiffs”). 27 /// 28 /// 07685.2375/15545732.2 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 SUMMARY JUDGMENT 2 A. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE NO TRIABLE ISSUE OF FACT EXISTS WITH REGARD TO ANY CAUSE OF 3 ACTION IN THE COMPLAINT 4 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 5 Supporting Evidence: Evidence: 6 1. Undisputed Material Fact 7 Plaintiffs took out a mortgage loan from Wells Fargo in November 2005 in the 8 amount of $884,000 (the “Loan”), which they used to purchase the real property at 9 88 Almond Avenue, Oroville, California (the “Property”), and which consisted of a 10 promissory note and a Deed of Trust 11 recorded against the Property. 12 Supporting Evidence 13 Deposition of John Benedict (“Benedict Depo.”), at 38:2–4, 38:14–40:17, Exs. 2, 3 14 [attached as Exhibit B to the declaration of Laszlo Ladi (“Ladi Decl.”)]. 15 First Amended Complaint (“FAC”) ¶ 8 16 [attached as Exhibit A to the Ladi Decl.]. 17 Request for Judicial Notice (“RJN”), Ex. A 18 Declaration of Jaci Marie Stevens 19 (“Stevens Decl.”), ¶¶ 3,4, Exs. A, B. 20 21 22 23 24 25 26 27 28 07685.2375/15545732.2 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 2. Undisputed Material Fact 4 In late May 2018 and early June 2018, Mr. Benedict had a series of calls with Wells 5 Fargo in which he was told (among other things) that the Loan may be ineligible for 6 a second loan modification. 7 Supporting Evidence 8 Benedict Depo., at 75:5–77:6, Ex. 35, 79:1–81:14, Ex. 36, 143:25–144:11.. 9 Stevens Decl., ¶¶ 8–10, 29, Exs. F, G, S–U 10 [including call recordings on May 31, 2018 and June 6, 2018]. 11 12 3. Undisputed Material Fact 13 In September 2018, when Plaintiffs again asked for assistance based on wind storm 14 damage to the Property, Wells Fargo provided Plaintiffs disaster relief 15 assistance. 16 Supporting Evidence 17 Stevens Decl., ¶ 11, Ex. H. 18 Benedict Depo., at 15:18–18:3 [describing claims generally, including 3-month 19 payment postponement in either October or November 2018 based on uninsured 20 damage to the Property], 75:1–4 [testifying he couldn’t remember exactly when 21 Plaintiffs started to miss payments], 81:15–84:21 [describing the “plan” offered 22 in either October 2018 or November 2018 to help with damage to the Property due a 23 wind-storm], 85:19–87:22 [testifying that the “plan” was due to wind-storm damage, 24 not the Paradise wildfires], 98:7–13 [testifying regarding the general time-line 25 of the two plans, but also stating he didn’t remember exactly], 125:15–126:13 26 [testifying generally that his memory wasn’t precise about dates during the loss 27 mitigation process]. 28 07685.2375/15545732.2 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 See also FAC ¶ 12 [describing it as October 2018 deferment plan]. 4 4. Undisputed Material Fact 5 The terms of the assistance related to the 6 wind storm damage were confirmed in a letter dated September 11, 2018, which 7 stated, among other things, Plaintiffs were not required to make payments for 90- 8 days, during this period there would be no 9 late fees, no reporting of a past-due status to the credit reporting agencies, no referral 10 to foreclosure, but that afterwards, the missed payments would need to be 11 resolved. 12 Supporting Evidence 13 Stevens Decl., ¶ 12, Ex. I. 14 Benedict Depo., at 87:1–88:20, Ex. 15 15 [testifying he did not know if he received the letter, didn’t think it applied to 16 Plaintiffs, but also testifying that a windstorm lead to widespread damage in 17 the area earlier in 2018], 92:13–93:22, Ex. 16 [testifying he likely ignored another 18 letter, which explained the disaster relief 19 assistance was close to ending], 98:7–13 [testifying regarding the general time-line 20 of the two plans, but also stating he didn’t remember exactly]. 21 See also FAC ¶ 12 [describing it as 22 October 2018 deferment plan]. 23 24 25 26 27 28 07685.2375/15545732.2 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 5. Undisputed Material Fact 4 In November 2018, due to the Paradise wildfires, Wells Fargo provided Plaintiffs 5 additional disaster relief assistance. 6 Supporting Evidence 7 Stevens Decl., ¶¶ 13, 29, Ex. J, S, T [including call recording on November 19, 8 2018 in which Plaintiffs were told there was already disaster relief assistance on 9 the Loan through February 10, 2019 due to the Paradise wildfires]. 10 Benedict Depo., at 15:18–18:3 [describing 11 claims generally, including second payment postponement in December 2018 12 after wildfires], 85:19–86:22 [testifying that the additional three-month payment 13 postponement was due to Paradise wildfires], 93:23–94:23 [describing 14 generally second 3-month payment postponement due to Paradise fires in 15 about December 2018], 98:7–13 [testifying regarding the general time-line of the two 16 plans, but also stating he didn’t remember exactly], 116:20–117:20 [testifying the 17 second three-month extension was disaster relief due to the Paradise fires]. 18 See also FAC ¶ 13 [describing it as 19 January 2019 deferment plan]. 20 21 22 23 24 25 26 27 28 07685.2375/15545732.2 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 6. Undisputed Material Fact 4 The terms of the assistance related to the wildfires were confirmed in a letter dated 5 November 14, 2018, which stated, among other things, Plaintiffs were not required to 6 make payments for 90-days, during this period there would be no late fees, no 7 reporting of a past-due status to the credit 8 reporting agencies, no referral to foreclosure, but that afterwards, the missed 9 payments would need to be resolved. 10 Supporting Evidence 11 Stevens Decl., ¶ 14, Ex. K. 12 Benedict Depo., at 97:7–20, Ex. 17 [testifying he did not know if he received 13 the letter, describing letter as “advertisement” that Wells Fargo sent that 14 was irrelevant to Plaintiffs, and that he likely would have thrown it in the trash], 15 97:23–98:6, Ex. 18 [testifying he likely ignored another letter which explained the 16 disaster relief assistance was close to ending]. 17 See also FAC ¶ 13 [describing it as 18 January 2019 deferment plan]. 19 7. Undisputed Material Fact 20 The Deed of Trust contains a provision 21 that states “any forbearance by Lender in exercising any right or remedy...shall not 22 be a waiver of or preclude the exercise the exercise of any right or remedy.” 23 Supporting Evidence 24 Stevens Decl., ¶ 3, Ex. B. 25 Benedict Depo., at 39:16–40:15, Ex 3. 26 RJN, Ex. A. 27 28 07685.2375/15545732.2 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 8. Undisputed Material Fact 4 There is no written agreement in which Defendants agreed to waive the payments 5 that were missed during the September 2018 and November 2018 disaster relief 6 assistance, and/or in which Defendants agreed to accept those missed payments 7 beyond the dates specified in the 8 September 11, 2018 and November 14, 2018 letters. 9 Supporting Evidence 10 Stevens Decl., ¶ 15. 11 Benedict Depo., at 88:22–89:10 [testifying 12 there was no written document memorializing what he understood 13 described as the “plan”], 93:23–94:23 14 [describing an extension of the first so- called “plan”]. 15 9. Undisputed Material Fact 16 The February 2019 mortgage assistance 17 application submitted by Plaintiffs included an “Agreement and 18 Acknowledgment” page signed by both Plaintiffs that indicated, among other 19 things, that the materials submitted by Plaintiffs would be used to determine their 20 eligibility for mortgage assistance but that Wells Fargo was not obligated to offer 21 them assistance based solely on the statements in the application. 22 Supporting Evidence 23 Stevens Decl., ¶ 16, Ex. L. 24 Benedict Depo., at 118:1–119:12, Ex. 19. 25 26 27 28 07685.2375/15545732.2 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 10. Undisputed Material Fact 4 When Plaintiffs submitted an earlier mortgage assistance application in October 5 2016, which led to their 2017 loan modification, they signed a similar 6 “Agreement and Acknowledgment” that indicated, among other things, that the 7 materials submitted by Plaintiffs would be used to determine their eligibility for 8 mortgage assistance but that Wells Fargo was not obligated to offer them assistance 9 based solely on the statements in the application. 10 Supporting Evidence 11 Stevens Decl., ¶ 5, Ex. D 12 Benedict Depo., at 43:13–44:10, Ex. 4. 13 11. Undisputed Material Fact 14 When Plaintiffs submitted updated 15 mortgage assistance applications on June 11, 2019, and October 17, 2019, each 16 application had a “Agreement and Acknowledgment” page that indicated, 17 among other things, that the materials submitted by Plaintiffs would be used to 18 determine their eligibility for mortgage assistance but that Wells Fargo was not 19 obligated to offer them assistance based solely on the statements in the application. 20 Supporting Evidence 21 Stevens Decl., ¶¶ 18, 20, Exs. M, N. 22 Benedict Depo., at 128:1–10, Ex. 22, 23 134:10–20, Ex. 26. 24 25 26 27 28 07685.2375/15545732.2 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 12. Undisputed Material Fact 4 In November 2019, after Wells Fargo eventually received a complete application 5 from Plaintiffs, Wells Fargo denied Plaintiffs for a loan modification based on 6 the fact that the Loan had received the maximum number of modifications 7 allowed. 8 Supporting Evidence 9 Stevens Decl., ¶¶ 21, 22, Ex. O. 10 Benedict Depo., at 140:17–141:7, Ex. 28. 11 FAC ¶ 22. 12 13. Undisputed Material Fact 13 Plaintiffs’ appeal of their November 13, 2019 denial was also denied on November 14 22, 2019. 15 Supporting Evidence 16 Stevens Decl., ¶¶ 23, 24, Exs. P, Q. 17 Benedict Depo., at 141:11–142:8, Ex. 29, 143:10–18, 143:20–24, Ex. 30. 18 19 14. Undisputed Material Fact 20 A notice of default on the Loan was recorded on October 9, 2019. 21 Supporting Evidence 22 Stevens Decl., ¶ 26, Ex. R. 23 Benedict Depo., at 160:5–8. 24 RJN, Ex. D. 25 FAC ¶ 19. 26 27 28 07685.2375/15545732.2 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 15. Undisputed Material Fact 4 No notice of sale has been issued or recorded, no foreclosure sale has been 5 scheduled, and no foreclosure sale has taken place. 6 Supporting Evidence 7 Stevens Decl., ¶ 27. 8 Benedict Depo., at 160:5–8. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07685.2375/15545732.2 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 SUMMARY ADJUDICATION 2 B. ISSUE ONE – THE FIRST CAUSE OF ACTION FOR NEGLIGENCE HAS NO MERIT BECAUSE NO TRIABLE ISSUES OF FACT EXIST TO OPPOSE 3 DEFENDANTS’ RIGHT TO JUDGMENT ON THIS CAUSE OF ACTION 4 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 5 Supporting Evidence: Evidence: 6 1. Undisputed Material Fact 7 Plaintiffs took out a mortgage loan from Wells Fargo in November 2005 in the 8 amount of $884,000 (the “Loan”), which they used to purchase the real property at 9 88 Almond Avenue, Oroville, California (the “Property”), and which consisted of a 10 promissory note and a Deed of Trust 11 recorded against the Property. 12 Supporting Evidence 13 Benedict Depo., at 38:2–4, 38:14–40:17, Exs. 2, 3 [attached as Exhibit B to the Ladi 14 Decl.]. 15 FAC ¶ 8 [attached as Exhibit A to the Ladi Decl.]. 16 RJN, Ex. A 17 Stevens Decl., ¶¶ 3,4, Exs. A, B. 18 2. Undisputed Material Fact 19 In late May 2018 and early June 2018, Mr. 20 Benedict had a series of calls with Wells Fargo in which he was told (among other 21 things) that the Loan may be ineligible for 22 a second loan modification. 23 Supporting Evidence 24 Benedict Depo., at 75:5–77:6, Ex. 35, 79:1–81:14, Ex. 36, 143:25–144:11. 25 Stevens Decl., ¶¶ 8–10, 29, Exs. F, G, S–U 26 [including call recordings on May 31, 2018 and June 6, 2018]. 27 28 07685.2375/15545732.2 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 3. Undisputed Material Fact 4 In September 2018, when Plaintiffs again asked for assistance based on wind storm 5 damage to the Property, Wells Fargo provided Plaintiffs disaster relief 6 assistance. 7 Supporting Evidence 8 Stevens Decl., ¶ 11, Ex. H. 9 Benedict Depo., at 15:18–18:3 [describing claims generally, including 3-month 10 payment postponement in either October or November 2018 based on uninsured 11 damage to the Property], 75:1–4 [testifying he couldn’t remember exactly when 12 Plaintiffs started to miss payments], 81:15–84:21 [describing the “plan” offered 13 in either October 2018 or November 2018 to help with damage to the Property due a 14 wind-storm], 85:19–87:22 [testifying that the “plan” was due to wind-storm damage, 15 not the Paradise wildfires], 98:7–13 [testifying regarding the general time-line 16 of the two plans, but also stating he didn’t remember exactly], 125:15–126:13 17 [testifying generally that his memory wasn’t precise about dates during the loss 18 mitigation process]. 19 See also FAC ¶ 12 [describing it as 20 October 2018 deferment plan]. 21 22 23 24 25 26 27 28 07685.2375/15545732.2 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 4. Undisputed Material Fact 4 The terms of the assistance related to the wind storm damage were confirmed in a 5 letter dated September 11, 2018, which stated, among other things, Plaintiffs were 6 not required to make payments for 90- days, during this period there would be no 7 late fees, no reporting of a past-due status 8 to the credit reporting agencies, no referral to foreclosure, but that afterwards, the 9 missed payments would need to be resolved. 10 Supporting Evidence 11 Stevens Decl., ¶ 12, Ex. I. 12 Benedict Depo., at 87:1–88:20, Ex. 15 13 [testifying he did not know if he received 14 the letter, didn’t think it applied to Plaintiffs, but also testifying that a 15 windstorm lead to widespread damage in the area earlier in 2018], 92:13–93:22, Ex. 16 16 [testifying he likely ignored another letter, which explained the disaster relief 17 assistance was close to ending], 98:7–13 18 [testifying regarding the general time-line of the two plans, but also stating he didn’t 19 remember exactly]. 20 See also FAC ¶ 12 [describing it as October 2018 deferment plan]. 21 22 23 24 25 26 27 28 07685.2375/15545732.2 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 5. Undisputed Material Fact 4 In November 2018, due to the Paradise wildfires, Wells Fargo provided Plaintiffs 5 additional disaster relief assistance. 6 Supporting Evidence 7 Stevens Decl., ¶¶ 13, 29, Ex. J, S, T [including call recording on November 19, 8 2018 in which Plaintiffs were told there was already disaster relief assistance on 9 the Loan through February 10, 2019 due to the Paradise wildfires]. 10 Benedict Depo., at 15:18–18:3 [describing 11 claims generally, including second payment postponement in December 2018 12 after wildfires], 85:19–86:22 [testifying that the additional three-month payment 13 postponement was due to Paradise wildfires], 93:23–94:23 [describing 14 generally second 3-month payment postponement due to Paradise fires in 15 about December 2018], 98:7–13 [testifying regarding the general time-line of the two 16 plans, but also stating he didn’t remember exactly], 116:20–117:20 [testifying the 17 second three-month extension was disaster relief due to the Paradise fires]. 18 See also FAC ¶ 13 [describing it as 19 January 2019 deferment plan]. 20 21 22 23 24 25 26 27 28 07685.2375/15545732.2 14 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 6. Undisputed Material Fact 4 The terms of the assistance related to the wildfires were confirmed in a letter dated 5 November 14, 2018, which stated, among other things, Plaintiffs were not required to 6 make payments for 90-days, during this period there would be no late fees, no 7 reporting of a past-due status to the credit 8 reporting agencies, no referral to foreclosure, but that afterwards, the missed 9 payments would need to be resolved. 10 Supporting Evidence 11 Stevens Decl., ¶ 14, Ex. K. 12 Benedict Depo., at 97:7–20, Ex. 17 [testifying he did not know if he received 13 the letter, describing letter as “advertisement” that Wells Fargo sent that 14 was irrelevant to Plaintiffs, and that he likely would have thrown it in the trash], 15 97:23–98:6, Ex. 18 [testifying he likely ignored another letter which explained the 16 disaster relief assistance was close to ending]. 17 See also FAC ¶ 13 [describing it as 18 January 2019 deferment plan]. 19 7. Undisputed Material Fact 20 The Deed of Trust contains a provision 21 that states “any forbearance by Lender in exercising any right or remedy...shall not 22 be a waiver of or preclude the exercise the exercise of any right or remedy.” 23 Supporting Evidence 24 Stevens Decl., ¶ 3, Ex. B. 25 Benedict Depo., at 39:16–40:15, Ex 3. 26 RJN, Ex. A. 27 28 07685.2375/15545732.2 15 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 8. Undisputed Material Fact 4 There is no written agreement in which Defendants agreed to waive the payments 5 that were missed during the September 2018 and November 2018 disaster relief 6 assistance, and/or in which Defendants agreed to accept those missed payments 7 beyond the dates specified in the 8 September 11, 2018 and November 14, 2018 letters. 9 Supporting Evidence 10 Stevens Decl., ¶ 15. 11 Benedict Depo., at 88:22–89:10 [testifying 12 there was no written document memorializing what he understood 13 described as the “plan”], 93:23–94:23 14 [describing an extension of the first so- called “plan”]. 15 9. Undisputed Material Fact 16 The February 2019 mortgage assistance 17 application submitted by Plaintiffs included an “Agreement and 18 Acknowledgment” page signed by both Plaintiffs that indicated, among other 19 things, that the materials submitted by Plaintiffs would be used to determine their 20 eligibility for mortgage assistance but that Wells Fargo was not obligated to offer 21 them assistance based solely on the statements in the application. 22 Supporting Evidence 23 Stevens Decl., ¶ 16, Ex. L. 24 Benedict Depo., at 118:1–119:12, Ex. 19. 25 26 27 28 07685.2375/15545732.2 16 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 10. Undisputed Material Fact 4 When Plaintiffs submitted an earlier mortgage assistance application in October 5 2016, which led to their 2017 loan modification, they signed a similar 6 “Agreement and Acknowledgment” that indicated, among other things, that the 7 materials submitted by Plaintiffs would be used to determine their eligibility for 8 mortgage assistance but that Wells Fargo was not obligated to offer them assistance 9 based solely on the statements in the application. 10 Supporting Evidence 11 Stevens Decl., ¶ 5, Ex. D 12 Benedict Depo., at 43:13–44:10, Ex. 4. 13 11. Undisputed Material Fact 14 When Plaintiffs submitted updated 15 mortgage assistance applications on June 11, 2019, and October 17, 2019, each 16 application had a “Agreement and Acknowledgment” page that indicated, 17 among other things, that the materials submitted by Plaintiffs would be used to 18 determine their eligibility for mortgage assistance but that Wells Fargo was not 19 obligated to offer them assistance based solely on the statements in the application. 20 Supporting Evidence 21 Stevens Decl., ¶¶ 18, 20, Exs. M, N. 22 Benedict Depo., at 128:1–10, Ex. 22, 23 134:10–20, Ex. 26. 24 25 26 27 28 07685.2375/15545732.2 17 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Defendants’ Undisputed Material Facts and Plaintiffs’ Response and Supporting 2 Supporting Evidence: Evidence: 3 12. Undisputed Material Fact 4 In November 2019, after Wells Fargo eventually received a complete application 5