Filed 7/25/16 Jones v. Nationstar Mortgage CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBERT JONES et al.,

Plaintiffs and Appellants,

v.

NATIONSTAR MORTGAGE, LLC et al.,

Defendants and Respondents.

 D067834

 (Super. Ct. No. 37-2013-00049308-

CU-OR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Randa 

Trapp, Judge. Reversed.

The Welch Law Group and Eric M. Welch for Plaintiffs and Appellants.

Akerman, Justin D. Balser and Alicia Y. Hou for Defendants and Respondents.

In this case, the plaintiffs, Robert Jones and Gina Jones (the Joneses), allege a loan 

servicer, Nationstar Mortgage, LLC (Nationstar), was subject to the requirements of the 

Homeowner Bill of Rights (the HBOR) and Civil Code sections 2923.4-2913.7,1 and 

 

1 All further statutory references are to the Civil Code unless otherwise indicated.
2

failed to provide them with the information required by section 2923.6. As we explain 

more fully, the Joneses have stated a valid cause of action for violation of the HBOR. 

In addition to claims under the HBOR, the Joneses alleged in the trial court 

common law causes of action growing out of their contention Nationstar agreed to 

provide them with a loan modification on the condition the Joneses provide Nationstar 

with financial documentation and information. The Joneses allege they provided 

documentation to Nationstar and were never advised that their submission was defective 

or insufficient; they further allege Nationstar had no intention of offering them a loan 

modification and that Nationstar's conduct gives rise to claims for fraud, negligent 

misrepresentation, breach of contract, and breach of the covenant of good faith and fair 

dealing. The facts alleged in the Joneses' second amended complaint (SAC) support 

these common law claims. 

In light of the foregoing, the trial court erred in sustaining in part defendants'

demurrer to the Joneses' SAC without leave to amend and thereafter granting defendants'

motion for summary judgment with respect to the balance of the Joneses' claims. 

Accordingly, we reverse the judgment of dismissal entered by the trial court. 

FACTUAL AND PROCEDURAL BACKGROUND

A. 2006-2013 

The Joneses purchased their home in 2006. SCME Mortgage Bankers, Inc. 

provided the Joneses with purchase money financing, which was memorialized in a 

$500,000 note executed by the Joneses and secured by a deed of trust. Mortgage 
3

Electronic Registration Systems, Inc. (MERS) was initially named as beneficiary of the 

deed of trust. At some point after the Joneses purchased their home, defendant Aurora 

Bank FSB (Aurora), took over responsibility for servicing the loan. According to the 

Joneses, they made regular payments on the note; according to an employee of Aurora 

who examined Aurora's records, the Joneses made inconsistent payments.

On March 28, 2012, MERS assigned its interest in the Joneses deed of trust to 

Aurora. On June 6, 2012, Aurora caused the trustee under the deed of trust to record a 

notice of default. The notice of default stated the Joneses were $14,730.03 in arrears on 

the note.

On July 1, 2012, defendant Nationstar obtained the right to service the Joneses'

note and deed of trust. According to both the Joneses and Nationstar, in September 2012, 

the Joneses spoke with a Nationstar employee about a loan modification. The record 

shows that on September 4, 2012, Nationstar sent the Joneses electronic facsimile (fax) 

correspondence, which included a loan modification application and asked that the 

Joneses return a number of financial records and financial information within 48 hours. 

The Joneses sent Nationstar a number of the documents Nationstar requested and,

according to their later complaint, heard nothing from Nationstar until April 30, 2013, 

when Nationstar caused the trustee to record a notice of sale. 

B. Trial Court Proceedings

On January 1, 2013, the HBOR became effective. In general, the HBOR imposes 

on loan servicers, such as Nationstar, an obligation to offer homeowners loan 
4

modifications and other alternatives to foreclosure and to consider a homeowner's 

application for such relief in good faith; more particularly, the HBOR requires that loan 

servicers meet their loan modification and foreclosure alternatives obligation as a 

condition to their right to record or cause to be recorded notices of default and notices of 

sale under deeds of trust. (See §§ 2923.5, 2923.7, 2924.18.) 

Shortly after Nationstar caused the trustee to record a notice of sale under the 

Joneses' deed of trust in April 2013, Robert Jones filed a complaint against Nationstar 

and Aurora. Later, in filing an amended complaint and in compliance with the trial 

court's order, Robert Jones added Gina Jones as a plaintiff. The trial court granted Robert

Jones injunctive relief from the noticed sale and, following a demurrer sustained with 

leave to amend, the Joneses filed the SAC.

The SAC alleged a number of claims based on asserted violations of the HBOR 

and common law claims based on the Joneses' allegation that Nationstar had promised to 

give them a loan modification if they provided Nationstar with financial documents and 

financial information. Nationstar and Aurora demurred to the SAC. The trial court 

sustained the demurrer without leave to amend with respect to claims based on violations 

of the HBOR, which allegedly occurred before the effective date of the HBOR, January 

1, 2013. The trial court overruled the demurrer with respect to (1) a claim based on an 

alleged violation of a statute that was in effect before January 1, 2013 and (2) the HBOR 

claims that were based on conduct that occurred after January 1, 2013. 

The trial court also sustained without leave to amend common law claims based 
5

on Nationstar's alleged promise to provide the Joneses with a loan modification; the court 

found those claims were barred by the fact the Joneses did not provide Nationstar with all 

the documents Nationstar requested in its fax and because the alleged promise to provide 

a loan modification was within the statute of frauds. The trial court overruled the 

demurrer with respect to the remaining common law claims for injunctive relief and

declaratory relief.

With respect to the Joneses' remaining statutory and common law claims, 

Nationstar and Aurora moved for summary judgment or, in the alternative, summary 

adjudication. The trial court granted the motion for summary judgment, finding that the 

defendants had met their statutory duties and that the remaining statutory claims and 

related claims for equitable relief should therefore be dismissed. Accepting as admissible 

Nationstar's evidence with respect to the Joneses' payment history, the trial court also 

granted summary judgment with respect to a remaining breach of written contract claim. 

Thereafter, the trial court entered judgment dismissing the Joneses' complaint. The 

Joneses filed a timely notice of appeal.

DISCUSSION

I

In reviewing orders sustaining demurrers without leave to amend and orders 

granting summary judgment, our role is limited and well defined. 

We review de novo an order sustaining a demurrer without leave to amend.

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is whether, assuming the truth of 
6

all well-pleaded facts and those subject to judicial notice, the complaint alleged facts 

sufficient to state a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 

1112, 1126.) We disregard contentions, deductions, or conclusions of fact or law. (Ibid.) 

" 'Further, we give the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we determine whether 

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when 

it is sustained without leave to amend, we decide whether there is a reasonable possibility 

that the defect can be cured by amendment: if it can be, the trial court has abused its 

discretion and we reverse; if not, there has been no abuse of discretion and we affirm.

[Citations.] The burden of proving such reasonable possibility is squarely on the 

plaintiff.' " (Ibid.) However, if any one of the several grounds of demurrer is well taken, 

the judgment must be affirmed. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 

967.)

In broadly outlining the law of summary judgment, the California Supreme Court 

stated: "If a party moving for summary judgment in any action . . . would prevail at trial 

without submission of any issue of material fact to a trier of fact for determination, then 

he should prevail on summary judgment. In such a case . . . the 'court should grant' the 

motion 'and avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar 

device." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Importantly, we 

review orders granting summary judgment de novo. (Alexander v. Codemasters Group 

Limited (2002) 104 Cal.App.4th 129, 139.)
7

II

As we indicated, the HBOR imposes on loan servicers duties they must fulfill 

before recording or causing to be recorded notices of default and notices of sale under 

deeds of trust. In imposing these duties, the Legislature meant to prevent the abusive 

practice of " 'dual tracking,' " by which loan servicers, while considering borrowers'

requests for loan modifications or other relief from foreclosure, simultaneously processed 

foreclosure on their homes. (See Monterossa v. Superior Court (2015) 237 Cal.App.4th 

747, 752 (Monterossa); Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 

904 (Jolley).) "[O]n July 2, 2012, the California Legislature passed Assembly Bill No. 

278 and Senate Bill No. 900 (2011-2012 Reg. Sess.), which have since been signed into 

law by the Governor. These provisions address more pointedly the foreclosure crisis in 

our state through even greater encouragement to lenders and loan servicers to engage in 

good faith loan modification efforts. [¶] One of the targets of the legislation is a practice 

that has come to be known as 'dual tracking.' 'Dual tracking refers to a common bank 

tactic. When a borrower in default seeks a loan modification, the institution often 

continues to pursue foreclosure at the same time.' (Lazo, Banks are foreclosing while 

homeowners pursue loan modifications, L.A. Times (Apr. 14, 2011); see Sen. Floor 

Analyses, Conf. Rep. on Assem. Bill No. 278, as amended June 27, 2012, p. 3.) The 

result is that the borrower does not know where he or she stands, and by the time 

foreclosure becomes the lender's clear choice, it is too late for the borrower to find 

options to avoid it. 'Mortgage lenders call it "dual tracking," but for homeowners 
8

struggling to avoid foreclosure, it might go by another name: the double-cross.' (Lazo, 

Banks are foreclosing.)" (Jolley, at p. 904, fn. omitted.) 

Thus, in enacting the HBOR, the Legislature stated in section 2923.4, subdivision 

(a): "The purpose of the act that added this section is to ensure that, as part of the 

nonjudicial foreclosure process, borrowers are considered for, and have a meaningful 

opportunity to obtain, available loss mitigation options, if any, offered by or through the 

borrower's mortgage servicer, such as loan modifications or other alternatives to 

foreclosure. Nothing in the act that added this section, however, shall be interpreted to 

require a particular result of that process."

Under the HBOR a loan servicer may not record or cause to be recorded a notice 

of default unless it has fully informed a homeowner of the opportunity to apply for a loan 

modification or other relief and may not record or cause to be recorded a notice of sale if 

a completed application for modification or other relief has been submitted and any 

appeal from the denial of the application has either been denied or the time for such 

appeal has expired. (See §§ 2923.5, 2923.6, 2924.18.) 

Importantly, the HBOR requires, in section 2923.7, subdivisions (a) and (b)(1) 

that, when a borrower requests a foreclosure prevention alternative, a loan servicer must 

appoint a single point of contact for the borrower, who must communicate with the 

borrower with respect to the availability of foreclosure alternatives and the process by 

which the borrower must apply for available alternatives. Subdivision (b)(2) requires the 

point of contact be responsible for "[c]oordinating receipt of all documents associated 
9

with available foreclosure prevention alternatives and notifying the borrower of any 

missing documents necessary to complete the application." (Italics added.) Subdivision 

(b)(3) further requires that a point of contact have access to information that permits the 

point of contact to: "timely, accurately, and adequately inform the borrower of the 

current status of the foreclosure prevention alternative." 

Violation of the obligations imposed by the HBOR give rise to claims for 

injunctive relief from foreclosure, damages, and attorney fees. (See Monterossa, supra, 

237 Cal.App.4th at p. 753.)

We agree with the trial court's determination that the duties imposed by the HBOR 

did not arise until the law became effective on January 1, 2013. Nothing on the face of 

the statute indicates the Legislature intended that conduct which occurred before the 

statute became effective would be subject to the requirements of the statute. Such a 

retroactive application of the new duties created by the statute would be inherently unfair 

to loan servicers, who in good faith recorded notices of default and notices of sale before 

the HBOR was adopted by the Legislature, let alone became effective. Our conclusion 

that the statute only operated prospectively is consistent with the general rule that, in the 

absence of some clear expression by the Legislature, statutes do not have retroactive 

effect. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.) 

III

Nonetheless, we disagree with the trial court's determination, in ruling on 

Nationstar and Aurora's demurrer to the SAC, that the complaint did not state either a 
10

valid claim for violation of section 2923.7 or for breach of contract. 

A. Section 2923.7

Paragraph Nos. 154 and 155 of the SAC allege that in September 2012, a 

representative of Nationstar told Robert Jones that if Jones supplied Nationstar with 

financial documentation and information Nationstar would modify the Joneses' loan and 

their monthly payments would be reduced to between $1,800 and $2,000 a month. 

Nationstar then sent the Joneses a fax with an application for a loan modification, 

including a list of documentation the Joneses needed to provide to Nationstar. The SAC 

alleges that Robert Jones promptly faxed bank account and pay stub information to 

Nationstar and, the SAC alleges, thereby fulfilled the requirements of the loan 

modification application. The SAC further alleges Nationstar did not advise the Joneses 

that they needed to provide any further documentation to complete their application; 

instead, Nationstar recorded the notice of sale on April 30, 2013.

These allegations are sufficient to state a claim under section 2923.7, which we 

recognize did not become effective until January 1, 2013. However, as we read the SAC, 

as of January 1, 2013, the Joneses' request for a loan modification had neither been 

expressly approved or denied and the Joneses had not been advised of the status of their 

application or that their application was missing any documents. Admittedly, by its terms 

Nationstar's offer expired 48 hours after it was made because, although the Joneses 

provided Nationstar with some of the financial information required by Nationstar's fax, 

as Nationstar contends, the Joneses did not provide it with all the documentation it 
11

required within the designated 48-hour period. 

We would be willing to adopt Nationstar's apparent view that its offer to consider 

a loan modification had expired because the Joneses had not met the conditions of the 

offer within the 48-hour period Nationstar allowed, but for Nationstar's undisputed failure 

to communicate that important fact to the Joneses. In our view, Nationstar's failure to 

communicate the status of the September 2012 application has a direct bearing on 

Nationstar's obligations under section 2923.7, when those obligations arose on January 1, 

2013. 

On January 1, 2013, "[u]pon the request of a borrower," (id., subd. (a)), Nationstar 

had a duty under subdivision (b)(1) to advise borrowers such as the Joneses of any 

foreclosure alternatives available to them and the process by which they could obtain 

such relief, and a duty under subdivision (b)(2) to thereafter keep the Joneses advised as 

to the status of the application and the need to supply additional information. Had 

Nationstar promptly communicated to the Joneses the status of their September 2012 

application, on January 1, 2013, it clearly would have fallen on the Joneses to avail 

themselves of the protections provided by the HBOR. However, according to the 

allegations of the SAC, Nationstar did not advise the Joneses about the status of their loan 

modification application and left the Joneses with the apparent impression their 

application was still pending. Thus, as of January 1, 2013, Nationstar was aware both 

that the Joneses had requested a foreclosure alternative and that it had not advised them 

of the status of that request. Given the remedial nature of the HBOR, and the particular 
12

communications abuse it was enacted to address, we interpret these circumstances as 

giving rise to a request by the Joneses, as of January 1, 2013, for a foreclosure alternative 

within the meaning of section 2923.7 and a consequent duty on the part of Nationstar to 

meet the requirements of the statute.

We are persuaded to treat the Joneses' September 2012 loan modification 

application as a continuing request for relief, which gave rise to duties under section 

2923.7 when it became effective on January 1, 2013, by a number of practical, as well as 

theoretical, considerations. First and foremost, as of January 1, 2013, Nationstar was 

plainly aware the Joneses were interested in a foreclosure alternative; thus, the Joneses 

fell squarely within the class of borrowers—those interested in a foreclosure 

alternative—entitled at that point to the protections of section 2923.7. Moreover, the 

practical effect of Nationstar's failure to communicate with the Joneses as to the status of 

their 2012 application arguably hindered the Joneses' ability to later employ the 

protections of the HBOR and make a formal request for a foreclosure alternative or 

otherwise act to protect their interest in their home. Requiring loan servicers to 

communicate with borrowers as to their rights, options, and the status of their 

applications for relief were of course the principal goals of the Legislature in enacting the 

HBOR. (See § 2923.4.) Thus, where, as here, the foreclosure process was initiated 

before the HBOR became effective, but was not yet complete on January 1, 2013, we 

believe the Legislature intended that after that date any pending foreclosures be governed 

by the new statute and its specific duties to communicate with borrowers interested in 
13

avoiding foreclosure. 

The Legislature's expectation that pending foreclosures would be governed by the 

terms of the HBOR, and that a loan servicer's prior conduct would be relevant in applying 

the statute to them, was expressly manifested in section 2923.6, subdivision (g), which 

states: "In order to minimize the risk of borrowers submitting multiple applications for 

first lien loan modifications for the purpose of delay, the mortgage servicer shall not be 

obligated to evaluate applications from borrowers who have already been evaluated or 

afforded a fair opportunity to be evaluated for a first lien loan modification prior to 

January 1, 2013, or who have been evaluated or afforded a fair opportunity to be 

evaluated consistent with the requirements of this section, unless there has been a 

material change in the borrower's financial circumstances since the date of the borrower's 

previous application and that change is documented by the borrower and submitted to the 

mortgage servicer." Thus, by its terms, section 2923.6 expressly contemplates providing 

borrowers, such as the Joneses, against whom foreclosure proceedings were pending at 

the time the HBOR became effective, with the benefits of the statute. 

In sum then, because we have interpreted the Joneses' unanswered application for 

a loan modification as a continuing request for a loan modification, the SAC alleges a 

violation of section 2923.7 when that statute became effective on January 1, 2013. 

B. Breach of Contract

The SAC alleges that the Joneses met the requirements of the loan modification 

offered by Nationstar and that Nationstar breached its agreement by, instead of giving 
14

them the loan modification, recording a notice of sale. For its part, Nationstar contends 

that the fax it sent the Joneses required more than the documents the SAC alleges the 

Joneses provided within the 48-hour period permitted by the offer. Thus, Nationstar 

contends that the SAC concedes that the conditions of its offer were not met.

This brings us to the covenant of good faith and fair dealing, which implies in 

every contract an obligation that "neither party will do anything which will injure the 

right of the other to receive the benefits of the agreement." (See Comunale v. Traders & 

General Ins. Co. (1958) 50 Cal.2d 654, 658.) Importantly, the precise nature and extent 

of the duty imposed by the implied promise of good faith and fair dealing in any 

particular contract depends upon the expectations of the parties and the purposes of the 

contract. (See Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 814; Austero v. 

National Cas. Co. (1978) 84 Cal.App.3d 1, 28 (Austero).) Here, of course, the purpose of 

the alleged contract was to prevent the loss of the Joneses' home to foreclosure. In 

somewhat similar circumstances, the court in Lueras v. BAC Home Loans Servicing, LP

(2013) 221 Cal.App.4th 49, 75-76 (Lueras) found that allegations that a lender failed to 

fully and accurately advise a borrower with respect to a loan modification application 

supported a claim the lender had breached the covenant of good faith and fair dealing. 

" 'The covenant of good faith finds particular application in situations where one party is 

invested with a discretionary power affecting the rights of another. Such power must be 

exercised in good faith.' " (Id. at p. 76.) Here, Nationstar had a great deal of 

discretionary power over its processing of the Joneses' effort to obtain a loan 
15

modification; its failure to respond in any manner once the Joneses provided financial 

information in support of a modification application plainly implicates the covenant of 

good faith and fair dealing. (See id. at pp. 75-76.) 

Of additional significance here, within months after the contract the Joneses allege 

was made, the Legislature imposed on loan servicers considering identical applications 

for loan modifications the duty to notify borrowers about missing documents, the status 

of their modification applications, and a requirement that time frames be reasonable. 

(See §§ 2923.6, subd. (h) & 2923.7, subd. (b)(2).) These legislative determinations as to 

the conduct required of loan servicers in dealing with borrowers are relevant in 

considering whether Nationstar was acting in good faith in giving the Joneses only 48 

hours in which to produce documents and thereafter failing to advise them about 

considering their application for a loan modification. (See Jolley, supra, 213 Cal.App.4th 

at p. 905.) 

In Jolley, as here, although the relevant conduct by a lender preceded the effective 

date of the HBOR, the court found the requirements of the HBOR were relevant in 

determining whether the lender had a duty to protect the borrowers' interests. "Of course, 

[the] provisions [of the HBOR] do not apply to our case. The question for our purposes 

is whether the new legislation sets forth policy considerations that should affect the 

assessment whether a duty of care was owed to [the borrowers] at that time. We think it 

does." (Jolley, supra, 213 Cal.App.4th at p. 905.) In reaching that conclusion, the court 

in Jolley also relied on a number of district court cases that imposed on lenders a duty of 
16

care in dealing with borrowers who were seeking a loan modification. (Id. at pp. 905-

906; but see Lueras, supra, 221 Cal.App.4th at pp. 65-66 [enactment of the HBOR does 

not support imposition of duty of care].) 

In light of the holding in Lueras and the policy considerations manifest in the 

HBOR, the lack of any response to the Joneses' application as alleged in the SAC is 

sufficient to give rise to a claim that in handling the Joneses' application for a loan 

modification, Nationstar breached the covenant of good faith and fair dealing. 

Nationstar, of course, is free to demonstrate that, even if it did not meet the standards 

that, under the HBOR, now expressly govern its conduct, in dealing with the Joneses, it 

had good business reasons to insist on a 48-hour time limit and rely on the Joneses to 

conclude that they had not met the requirements of its offer. (See, e.g., Austero, supra, 

84 Cal.App.3d at pp. 35-36.) Nonetheless, contrary to Nationstar's argument, the face of 

the SAC alleges a colorable claim that Nationstar breached the covenant of good faith 

and fair dealing and is liable for breach of contract. 

We also disagree with the trial court's determination that, as a matter of law, the 

oral agreement the Joneses alleged was barred by the statute of frauds. We recognize that 

the statute of frauds governs agreements to modify mortgages and deeds of trust. (See 

Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 

552-553; §§ 2922, 1698, subd. (a).) Nonetheless, the SAC alleges complete performance 

by the Joneses of their obligations under the oral agreement and their reliance on their 

understanding they would be considered for a modification. It is well established that 
17

complete or even partial performance by a party may satisfy the requirements of the 

statute of frauds, where a party may also be able to show detrimental reliance on the 

agreement. (See Secrest, at pp. 555-556.) Thus, the allegations of the SAC, if proved, 

could satisfy the statute of frauds.

C. Disposition of Demurrer

Because the SAC alleges a valid claim for violation of the HBOR, the trial court 

erred in sustaining without leave to amend the first, second, third and fourth causes of 

action that each seek relief for violations of the HBOR. Because the SAC alleges a valid 

breach of contract and breach of the covenant of good faith and fair dealing, the trial 

court also erred in sustaining defendants' demurrer with respect to the ninth, tenth and 

eleventh causes of action. 

The trial court sustained defendants' demurrer to the seventh and eighth causes of 

action for fraud and negligent misrepresentation because it determined the Joneses had 

failed to supply Nationstar with all the documents required by way of the alleged 

contract. Because the Joneses' failure to provide more documentation may be excused by 

virtue of Nationstar's conduct, the trial court erred in dismissing these claims as well.

Because the valid causes of action that are set forth in the SAC might support an 

award of punitive damages, the trial court also erred in striking the Joneses' request for 

punitive damages.

IV

The trial court's order sustaining in part defendants' demurrer to the SAC did not 
18

dispose of the Joneses' claims related to the notice of default recorded by Aurora in June 

2012. With respect to the notice of default, the Joneses alleged that they were not in 

default and that Aurora had refused to accept payments they had tendered on the loan. 

The Joneses alleged this conduct gave rise to claims under the version of section 2923.5 

in effect in 2012 and breach of the covenant of good faith and fair dealing.

Nationstar and Aurora moved for summary judgment with respect to these claims 

and supported its motion by way of records from Aurora, which they argued established 

that the Joneses were in default when the notice of default was recorded and that Aurora 

had met its notice obligations under the prior version of section 2923.5 to contact the 

Joneses before recording the notice of default. Admission of the records were supported 

by way of a declaration from an employee of Nationstar.

The Joneses responded to the motion for summary judgment (1) by submitting 

deposition testimony from the Joneses, which, in a very general manner, contradicted the 

Aurora payment records and (2) by objecting to admission of the Aurora payment 

records. The Joneses also submitted letters from Robert Jones to Aurora, which 

conceded his payments were in arrears but objected to the fact that Aurora had returned 

payments he had attempted to make. The letters contended that, with credit for the 

returned payments, the balance due set forth in the notice of default was inaccurate.

At the very least, this record leaves a factual question with respect to whether, in 

light of the Joneses' attempts to make payments, Aurora fulfilled its obligations under the 

former version of section 2923.5, subdivision (a)(2), which required that before filing a 
19

notice of default, a "mortgagee, beneficiary, or authorized agent 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."

In sum, the trial court also erred in granting defendants' motion for summary 

judgment.

DISPOSITION

The judgment is reversed. The Joneses to recover their costs on appeal.

BENKE, Acting P. J.

I CONCUR:

McDONALD, J.

I CONCUR IN THE RESULT:

AARON, J.