Filed 1/12/16 Samaduroff v. Bank of America CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PETER SAMADUROFF et al.,

 Plaintiffs and Appellants,

v.

BANK OF AMERICA, N.A. for itself and 

as Successor etc. et al.,

 Defendants and Respondents.

 G052135

 (Super. Ct. No. RIC1117687)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Riverside County, 

Matthew C. Perantoni, Judge. Affirmed.

Stephen R. Golden & Associates, Stephen R. Golden and Elaine D. 

Etingoff for Plaintiffs and Appellants.

Reed Smith, Matthew J. Brady, Michael E. Gerst, and Myles A. Lanzone 

for Defendants and Respondents.

* * *
2

Plaintiffs Peter and Vicki Samaduroff

1

defaulted on their home mortgage 

loan. Between 2007 and 2013, communications pertaining to potential loan 

modifications were exchanged between plaintiffs and some of the defendants. These 

discussions did not conclude in a modification of the loan. Plaintiffs sued defendants 

under a lengthy list of legal theories, including fraud, negligence, intentional infliction of 

emotional distress, and unfair competition under Business and Professions Code section 

17200 (section 17200). The trial court granted summary judgment in favor of defendants

and we affirm.

FACTS

The Loan and the Parties

This case concerns 3743 Holly Springs Drive in Corona, California (the 

Property). In December 2005, plaintiffs borrowed $527,000 to refinance an existing 

mortgage loan secured by the Property. The loan terms included a repayment period of

30 years at a fixed rate of 5.95 percent, with an initial five-year term during which 

plaintiffs would be obligated to pay only interest. The scheduled monthly payment for 

the first five years was $2,613.04 and the scheduled monthly payment for the remaining 

25 years was $3,379.38. The loan was secured by a deed of trust. 

Defendants include Bank of America, N.A. (Bank of America),

2

ReconTrust Company N.A. (ReconTrust), The Bank of New York Mellon, as trustee for 

the Certificateholders CWABS, Inc., Asset-Backed Certificates, Series 2005-16 (Mellon), 

and Kevin Rudolph, whom plaintiffs describe as a “known Robo-signer.”

 

1

For clarity, we refer to plaintiffs individually by their first names, and 

collectively as “plaintiffs.” We intend no disrespect.

2

Bank of America includes separately named defendant BAC Home Loans 

Servicing, LP, which merged with Bank of America. 
3

The December 2005 refinance lender was identified as “America’s 

Wholesale Lender,” which was a name under which Countrywide Home Loans, Inc. 

(Countrywide) did business. Countrywide also acted as the initial servicer of the loan. 

But Bank of America acquired Countrywide in January 2008 and has acted as loan 

servicer since that acquisition. For purposes of this appeal, we will attribute the conduct 

of Countrywide and its employees to Bank of America.

The deed of trust identified ReconTrust as trustee and Mortgage Electronic 

Registration Systems, Inc. (“MERS”) as beneficiary (“acting solely as a nominee”). In 

March 2011, MERS assigned its beneficial interest in the deed of trust to Mellon.

Procedural History and Allegations of Operative Complaint

Plaintiffs sued defendants in November 2011. Plaintiffs’ operative 

complaint alleges (1) promissory estoppel, (2) fraud, (3) deceit, (4) negligence, (5) 

violations of section 17200, (6) breach of fiduciary duty, (7) additional violations of 

section 17200, (8) intentional infliction of emotional distress, (9) negligent infliction of 

emotional distress, (10) quiet title, and (11) declaratory relief. 

Underlying these causes of action are allegations that defendants engaged 

in unfair tactics that misled plaintiffs into believing Bank of America would approve loan 

modifications. Plaintiffs allege they had numerous phone conversations and other 

communications with Bank of America employees. By suggesting in these 

communications that it was reviewing and/or approving loan modifications for plaintiffs, 

Bank of America allegedly induced reliance by plaintiffs, whereby they refrained from 

taking more productive steps (e.g., filing for bankruptcy protection) to save the Property 

from foreclosure.

3

 

3

The operative complaint also alleges in general terms that plaintiffs were 

subjected to predatory lending tactics in connection with the 2005 loan, but it does not 

appear these factual allegations are pertinent to the causes of action before us in this 
4

Defendants demurred to plaintiffs’ operative complaint. The court 

sustained the demurrer as to all causes of action other than fraud (alleged only against 

Bank of America), negligence (alleged only against Bank of America), section 17200 

violations (alleged only against Bank of America and Mellon), and intentional infliction 

of emotional distress (alleged only against Bank of America and Mellon). Plaintiffs do 

not contend the court erred in its demurrer ruling; this appeal therefore does not appear to 

affect the rights of defendants ReconTrust or Randolph.

Defendants moved for summary judgment on the remaining causes of 

action, and the court granted the motion. Plaintiffs timely appealed the ensuing 

judgment, limiting their arguments on appeal to alleged errors by the court in granting the 

summary judgment motion. 

Summary Judgment Record — Plaintiffs’ Default and Modification Efforts

The gist of defendants’ motion was to document the reasonableness of their 

actions and to demonstrate the lack of any legally cognizable damages. Defendants’ 

motion included evidence from two declarants: (1) an assistant vice-president of Bank of 

America, who (based on a combination of personal knowledge and his investigation and 

review of Bank of America’s files and records) described the history of the loan, 

identified interactions between plaintiffs and Bank of America pertaining to potential 

loan modifications, and authenticated various documents pertinent to the dispute; and (2) 

one of defendants’ attorneys, who authenticated deposition transcript excerpts. We 

summarize the evidentiary showing made by defendants.

Plaintiffs made timely mortgage payments from December 2005 through

April 2006, after which they missed some of their scheduled payments. Plaintiffs admit 

they have not made any loan payments since approximately April 2008. Vicki testified at 

 

appeal. 
5

her deposition that plaintiffs stopped making mortgage payments altogether because they 

“were trying to negotiate a new modification.” While elsewhere blaming Bank of 

America for her lack of mortgage payments after April 2008, Vicki explained in response 

to a special interrogatory that she was told by a firm she hired to renegotiate her loan that 

Bank of America “would not consider us for a loan modification while making monthly 

payments.” 

In July 2006, Bank of America transmitted a notice of default and 

acceleration to plaintiffs, informing plaintiffs that they owed $5,356.73 (two missed

payments, plus late charges). The letter notified plaintiffs of their right to cure the 

default, and also noted various “options that may be available to you . . . to prevent a 

foreclosure sale of your property.” Options listed included a repayment plan (allowing 

repayment of the late amount over time), a short sale of the Property, and a loan 

modification. The loan modification bullet point stated, “It is possible that the regular 

monthly payments can be lowered through a modification of the loan by reducing the 

interest rate and then adding the delinquent payments to the current loan balance. This 

foreclosure alternative, however, is limited to certain loan types.” The letter included a 

toll-free number for a loan counseling center. 

Plaintiffs did not cure their default. ReconTrust recorded a notice of default 

and election to sell under the deed of trust in April 2007, at which time plaintiffs were 

$9,977.24 in arrears. 

In November 2007, Bank of America sent plaintiffs a letter rejecting an 

apparent request for assistance by plaintiffs because “[t]he financial information 

submitted indicates that [plaintiffs did] not have the resources to support a loan 

modification.” At that time, Vicki’s income was between $60,000 and $75,000, and 

Peter’s income was under $40,000. 
6

However, in April 2008 (i.e., just after Bank of America acquired 

Countrywide), Bank of America sent plaintiffs a proposed loan modification (“We are 

pleased to advise you that your loan modification has been approved”). Plaintiffs were 

required to pay $3,290 in fees in order to accept the modification. The terms of the

proposed modification added $18,291.29 in accumulated interest and $10,078.53 in 

accumulated amounts owed to the escrow account, resulting in a new principal balance of 

$555,369.82 (i.e., up from the original borrowed amount of $527,000). Plaintiffs’ new 

monthly interest-only payment would be $2,753.71 (i.e., up from the original loan 

payment of $2,613.04).

4

The interest rate was the same as the original loan (5.95 

percent), but the loan no longer required amortizing payments to begin after the first five 

years. Instead, the loan provided for minimum payments of interest only until January 

2036, at which time the full principal amount owed would be due. Plaintiffs did not 

accept this loan modification offer. In her deposition testimony, Vicki explained, “We 

declined it because we had asked for a reduction of interest rate instead of the interest 

only or amortized rate.” She “[w]anted to renegotiate a lower interest rate and a fixed 

rate.” Six “percent was pretty high even back in 2008.” 

Bank of America offered another loan modification in December 2008. 

This proposed modification (again incorporating ever-growing unpaid interest and other 

amounts) featured a modified balance of $574.369.12 and a modified monthly payment 

of $2,847.91. The proposed interest rate remained unchanged at 5.95 percent. Like the 

prior proposed modification agreement, plaintiffs would be obligated to pay only 

accumulating interest until January 2036, at which time any remaining principal owed 

would come due. Plaintiffs did not accept this loan modification either. There is a 

 

4

There is some confusion in the record as to the proposed repayment 

amount. The parties are in agreement that this amount was $3,298.11. But it is important 

to note this higher amount included a monthly escrow fund payment, not just mortgage 

interest payments. An apples to apples comparison is more enlightening than comparing 

this $3,298 number to the original interest only mortgage payment.
7

dispute as to whether plaintiffs actually received this proposed modification (though it 

was addressed to them), but Vicki admits plaintiffs likely would not have accepted the 

modification offer because it was the same as the prior modification offer. 

In 2009, Peter retired, cutting his income significantly. The same year, 

Vicki went on disability leave, reducing her income by approximately 50 percent. 

In July 2010, Bank of America sent plaintiffs a letter stating that they might 

be eligible for a loan modification under the federal Home Affordable Modification 

Program (HAMP). Plaintiffs submitted financial documents to Bank of America in 

response to this invitation. Bank of America sent a follow-up letter in November 2010 

requesting additional documents to complete the loan modification review. Bank of 

America ultimately sent a letter denying the loan modification in January 2011, citing 

excessive forbearance: “Your loan is not eligible for a [HAMP] because we are unable to 

create an affordable payment equal to 31% of your reported monthly gross income 

without changing the terms of your loan beyond the requirements of the program. In 

other words, to create an affordable payment for you, the investors (owner) of your loan 

would be required to delay collecting too large a portion of your principal balance until 

the loan pays off, beyond what the [HAMP] allows.” Plaintiffs appealed this denial, and 

Bank of America denied plaintiffs’ appeal. 

In March 2011, ReconTrust recorded a notice of trustee’s sale, showing a 

balance of $667,077.32 owed by plaintiffs. Though the notice suggested the property 

would be sold at auction in April 2011, the trustee’s sale apparently did not occur.

In July 2011, plaintiffs applied for an “in-house” loan modification with 

Bank of America.

5

In November 2012, Bank of America denied plaintiffs’ application 

for the in-house loan modification, and plaintiffs did not appeal that decision.

 

5

As noted above, plaintiff’s lawsuit was filed in November 2011.
8

Plaintiffs submitted a new application for a loan modification in February 

2013, and Bank of America denied that application in April 2013. Plaintiffs appealed the 

April 2013 denial during the following month, and Bank of America denied that appeal in 

August 2013. 

Obviously, plaintiffs never secured a modification of their December 2005

mortgage loan. At the same time, they have not paid Bank of America anything since at 

least April 2008, and more than $200,000 in missed payments and fees have accrued. At 

least as of the time of the summary judgment motion, plaintiffs retained possession of the 

Property. There is no evidence in the record that a foreclosure sale has actually occurred; 

Vicki admitted at her April 2013 deposition that she still resided at the Property and a 

foreclosure sale had not occurred. She also admitted plaintiffs have not been paying 

property taxes or property insurance. 

Lack of Evidence from Plaintiffs in the Summary Judgment Record

By written order, the trial court overruled all of plaintiffs’ objections to 

defendants’ evidence submitted in support of summary judgment and sustained all of 

defendants’ objections to plaintiffs’ proffered evidence. Plaintiffs did not provide a 

reporter’s transcript or argue in their appellate briefs that the court erred in its evidentiary 

rulings. Any challenge to the court’s rulings on the parties’ evidence is therefore waived. 

(See Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368.)

Despite the waiver, we note several of the reasons defendants’ objections 

were well taken and other reasons plaintiffs’ evidentiary submissions did little to enhance 

the record. Plaintiffs’ opposition papers included three documents labeled as 

declarations. None of the three declarations were executed under penalty of perjury. 

(See Code Civ. Proc., § 2015.5.) Thus, the court was justified in ignoring these 

documents in their entirety. (Kulshrestha v. First Union Commercial Corp. (2004) 33 
9

Cal.4th 601, 606, 609-618 [declarations not meeting the requirements of § 2015.5 are 

properly excluded from evidence on summary judgment motion].)

The (purported) declaration filed by plaintiffs’ attorney was, for the most 

part, legal argument rather than testimony as to relevant facts. This attorney declaration 

discusses a case (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079) and a legal 

issue (the right of MERS to assign rights as beneficiary to Mellon) not pertinent to the 

summary judgment motion. Plaintiff’s attorney requested leave to amend the complaint, 

an issue not before us in this appeal. The only pertinent information concerns the 

resolution of the appeal of plaintiffs’ most recent modification request, but this point is 

inconsequential to the merits of the motion. 

The (purported) declaration of a “negotiator” working for plaintiffs 

consisted largely of speculation and improper legal conclusions masquerading as expert 

testimony. For instance, the negotiator opined (without any foundation as to plaintiffs’ 

income in 2007 or the standard by which such income should be judged as sufficient),

“Plaintiffs income in 2007 was sufficient to support a loan modification, and Defendants’ 

denial that Plaintiff’s ‘do not have the resources to support a loan modification’ was false 

and shows a lack of good faith on the part of Defendants.” The negotiator observed, 

“[m]any times a decrease in income can actually qualify a borrower for a loan 

modification.” And then the negotiator concluded “[t]he alleged ‘loan modifications’ 

offered by Defendant in April and December of 2008, were not true loan modifications. 

This is because both of them constituted an increase in payment over the current payment 

owed by the borrowers.” In short, the negotiator restated facts obtained from reading 

documents already in the record and characterized those facts (e.g., the last paragraph in 

the declaration attributed “delaying tactics” to Bank of America’s motive to “add fees, 

late charges, and escrow surcharges”). The negotiator did make one relevant factual 

claim, although it was vague: “Starting in March of 2011, we continued to work with the 

bank to facilitate a settlement through re-structuring our clients’ loan via the modification 
10

process. We were continually asked for documents that had already been submitted; told 

documents had not been received, and dealt with in a manner inconsistent with a desire to 

negotiate in good faith.” 

The one-page (purported) declaration of Vicki is mostly speculation, with 

vague information sprinkled in for good measure. “For over 3 years we were given the 

run around by Defendants. They constantly lost our paperwork and made us refax it to 

them. I do not believe we ever received a good faith review for a loan modification.” 

“At the time when our income decreased in 2009, our expenses also went down 

considerably at the same time.” “If Defendant would have honestly and in good faith 

reviewed us for a loan modification at the beginning of the process, without playing all of 

the games [as referenced in the complaint], I would have contacted an attorney earlier in 

the process, and . . . I believe we would have filed for Bankruptcy to save our home.” 

Vicki denied receiving the April 2007 notice of default or the December 2008 loan 

modification offer. With regard to the April 2008 loan modification, she rejected it 

because it “was actually an increase over our actual payment at the time of $2,668. The 

purpose of wanting to receive a lower interest rate was to receive a lower payment. The 

payment received was excessive.” She also claimed Bank of America had “refused to 

accept payments” since April 2008. But in her deposition, Vicki admitted she did not 

actually try to make a payment, but was instead speculating that such a payment may 

have been rejected. 

Plaintiffs also relied below and in their appellate briefs here on the 

allegations of their own operative complaint in an attempt to establish a triable issue of 

fact. But “a party cannot rely on the allegations of his own pleadings, even if verified, to 

make or supplement the evidentiary showing required in the summary judgment context.” 

(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7.)
11

In sum, no evidentiary material was actually added to the summary 

judgment record by plaintiffs’ opposition papers. And even if one were to credit factual 

statements made in the documents inaccurately labeled as declarations, it would not 

significantly change the facts established by defendants in their moving papers. There is 

nothing close to admissable evidence in the record suggesting plaintiffs were ever, for 

instance, promised a loan modification with particular terms (e.g., a lower interest rate 

than their 2005 loan) but were subsequently not provided with those terms.

DISCUSSION

“A defendant meets his or her burden in a summary adjudication motion 

‘by negating an essential element of the plaintiff's case, or by establishing a complete 

defense, or by demonstrating the absence of evidence to support the plaintiff’s case.’” 

(Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 504.) “Once the 

defendant . . . has met that burden, 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 . . . . The 

plaintiff . . . shall not rely upon the mere allegations or denials of its pleadings to show 

that a triable issue of material fact exists but, instead, shall set forth the specific facts 

showing that a triable issue of material fact exists as to that cause of action . . . .” (Code 

Civ. Proc., § 437c, subd. (p)(2).) “‘We review questions of law as well as orders granting 

summary adjudication under the de novo standard of review.’” (Angelica Textile 

Services, Inc., at p. 504.)

The undisputed evidence can be summarized as follows: plaintiffs took out 

a mortgage loan; plaintiffs stopped making payments on their loan; plaintiffs requested 

modifications to their loan; Bank of America offered to modify the loan on at least one 

occasion, but on terms not acceptable to plaintiffs; defendants have refrained from 

actually conducting a foreclosure sale; and plaintiffs have continued to live at the 
12

Property without paying for their loan (or other expenses, such as property taxes and 

property insurance). 

Even ignoring evidentiary shortcomings in the record, the most one can say 

for plaintiffs’ case is that Bank of America did not always efficiently and expeditiously 

process plaintiffs’ repetitive requests for modifications. Basically, plaintiffs contend they 

should be compensated for being subjected to what they perceived as “the runaround” 

and for having refrained from filing for bankruptcy protection to try to “save” their home 

from foreclosure. Plaintiffs have not specified why they are unable to file for bankruptcy 

right now, as the foreclosure has not actually gone forward yet.

6

With this record in mind, we turn to an examination of the individual 

causes of action that were the subject of defendants’ summary judgment motion.

Fraud

Plaintiffs allege Bank of America committed fraud and they were damaged 

as a result of the fraud in the sum of $2 million. In order to succeed on a fraud claim, a 

plaintiff must prove the following elements: “‘(a) misrepresentation (false 

representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); 

(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting 

damage.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

The complaint highlights alleged misrepresentations by Bank of America 

employees Michael (in August 2008, when he stated to plaintiffs on the telephone that 

they were approved for a modification and the paperwork was in the mail) and Jean (in 

May 2009, who indicated that “loan approval was forthcoming and that documentation 

would be mailed out shortly”). Plaintiffs’ alleged damages consist of “the possibility of 

losing their home” and their failure to pursue “any other options to keep their home, such 

 

6

Nothing in the record or the parties’ appellate briefs explains the likely 

consequences of a bankruptcy filing by plaintiffs, whether in the past or now.
13

as bankruptcy, etc.” The complaint claims plaintiffs’ subjection to “onerous foreclosure 

proceedings” and “the possibility of the loss of their family residence” supports damages 

of $2 million. 

There is no evidence in the record of these alleged misrepresentations, and 

it is debatable whether these statements misrepresented anything. But Bank of America’s 

motion did not disprove that these communications (or others like them) occurred or 

demonstrate the absence of evidence of these communications. Instead, Bank of America 

ignored allegations that individual misleading phone conversations occurred. Bank of 

America chose to focus on demonstrating the reasonable things it did to accommodate 

plaintiffs’ demands (e.g., repeatedly consider modification requests, offer modifications 

on two occasions, and refrain from foreclosing on the Property).

Bank of America definitely met its burden, though, by presenting evidence 

negating plaintiffs’ damage claim. Plaintiffs “must suffer actual monetary loss to recover 

on a fraud claim.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240.) 

Defendants were not required to disprove every potential form of damages, only those 

raised by the complaint. (See Granadino v. Wells Fargo Bank, N.A. (2015) 236 

Cal.App.4th 411, 419 [allegations of damages not pleaded in the complaint need not be 

considered on summary judgment motion]; Rossberg v. Bank of America, N.A. (2013) 

219 Cal.App.4th 1481, 1498-1501 [homeowner’s fraud damages must be alleged with 

particularity; vague accusations they were harmed by alleged oral promises to modify a 

loan are not sufficient].) 

Bank of America established with evidence that plaintiffs had not paid 

anything since at least April 2008 (i.e., the same time the first modification offer was sent 

by Bank of America), yet they remained in possession of the Property because a 

foreclosure had not occurred. In the absence of a foreclosure or plaintiffs’ continuing to 

pay loan payments in reliance on a lender’s promises, plaintiffs’ reference to their failure 

to pursue bankruptcy or other measures to “save” the Property is incoherent. (Cf. West v. 
14

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 786, 795, 804-805 [allegations 

that plaintiffs made additional payments in reliance on promise foreclosure would not 

happen, but bank broke promise and foreclosed on home].)

7

 

Plaintiffs try to salvage their case by reference to other potential ways they 

might prove damages — administrative costs of applying for modifications, attorney fees, 

and emotional distress. None of these theories work, even ignoring the fact that the 

complaint did not describe these categories of damages in the fraud cause of action. 

“Time and effort spent assembling materials for an application to modify a loan is the 

sort of nominal damage subject to the maxim de minimus non curat lex — i.e., the law 

does not concern itself with trifles.” (Lueras v. BAC Home Loans Servicing, LP (2013) 

221 Cal.App.4th 49, 79 (Lueras).) To the extent plaintiffs claim their particular efforts 

were not de minimus because of the eight-year period during which they continually 

asked for modifications, Bank of America’s evidentiary showing effectively 

demonstrated plaintiffs’ extended efforts could not be in reasonable reliance on any of the 

alleged misrepresentations (but were instead caused by plaintiffs’ persistence). Plaintiffs’ 

attorney fees, of course, are not an element of damages. (See Mega RV Corp. v. HWH 

Corp. (2014) 225 Cal.App.4th 1318, 1337-1338 [attorney fees are not damages, except in 

circumscribed circumstances in which tort of another doctrine applies].) Finally, 

 

7

Plaintiffs cite a long list of cases for the proposition that damages may be 

possible “if the borrower alleges something more than the continuance of payments of the 

monthly mortgage.” But in all but one of these cases (which were all based on trial 

courts sustaining demurrers rather than granting summary judgment motions), it is clear a 

foreclosure sale actually occurred. (Fleet v. Bank of America N.A. (2014) 229 

Cal.App.4th 1403, 1405-1406; Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 

Cal.App.4th 941, 944-945; Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 301-

303; West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 786.) In the 

other case, it is not specified whether the trustee’s sale actually went forward, but it was 

alleged plaintiffs received a trial modification plan under HAMP, which plaintiffs relied 

on by making payments to the lender with the expectation that the modification would be 

approved if they met their payment obligations. (Bushell v. JPMorgan Chase Bank, N.A.

(2013) 220 Cal.App.4th 915, 918-921.) 
15

“[e]motional distress is [generally] not recoverable as an element of damages for fraud.” 

(Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67; see Nagy v. Nagy (1989) 210 

Cal.App.3d 1262, 1269 [emotional distress damages for fraud only recoverable if other 

legally cognizable damages are also pleaded and proved].) In sum, Bank of America is 

entitled to summary adjudication of the fraud cause of action because there is no triable 

issue of fact with regard to damages.

Negligence

“The elements of a negligence cause of action are the existence of a legal 

duty of care, breach of that duty, and proximate cause resulting in injury.” (Castellon v. 

U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Bank of America may have had a duty of care in this case pursuant to the 

allegations of the complaint. This area of law is unsettled as to how far this duty should 

extend. “‘[A]s a general rule, a financial institution owes no duty of care to a borrower 

when the institution’s involvement in the loan transaction does not exceed the scope of its 

conventional role as a mere lender of money.’” (Ragland v. U.S. Bank National Assn.

(2012) 209 Cal.App.4th 182, 206.) “[A] loan modification is the renegotiation of loan 

terms, which falls squarely within the scope of a lending institution’s conventional role as 

a lender of money.” (Lueras, supra, 221 Cal.App.4th at p. 67.) Lenders and servicers do 

“not have a common law duty to offer, consider, or approve a loan modification, or to 

offer [borrowers] alternatives to foreclosure.” (Id. at p. 68; but see Alvarez v. BAC Home 

Loans Servicing, L.P., supra, 228 Cal.App.4th at pp. 948-949 [lenders who agree to 

consider loan modification take on duty of care with regard to handling of application].) 

At a minimum, “a lender does owe a duty to a borrower to not make material 

misrepresentations about the status of an application for a loan modification or about the 

date, time, or status of a foreclosure sale.” (Lueras, at p. 68 (maj. Opn. of Fybel, J.); but 

see id. at p. 95 (dis. opn. of Thompson, J.).) 
16

Most of the statements by Bank of America representatives are not alleged 

to be false, but instead appear to be indicative of plaintiffs’ complaints about the delays 

and inefficiencies in Bank of America’s process (e.g., repeated instances of phone 

conversations in which the Bank of America representative indicated that “modification

is pending approval”). Plaintiffs also alleged various representations concerning the 

status of their application for a loan modification. Whether these misrepresentations 

were false or material is another question. Alleged misrepresentations did not, for 

instance, promise plaintiffs a modification with a reduced interest rate. The alleged 

misrepresentations were much more prosaic. For example, certain representatives would 

state paperwork was “in the mail” but the paperwork would not arrive. Inconsistent 

messages were provided at various times concerning whether a modification request was 

approved or still “in review.” Bank of America did not attempt to prove these 

communications did not occur.

Regardless, Bank of America is entitled to summary adjudication of the 

negligence cause of action because there is no triable issue of fact as to damages. The 

operative complaint alleges in the negligence cause of action that plaintiffs “actually 

suffered injury from the inability of [Bank of America] to properly process their loan 

modification applications over the past 3 years . . . .” As explained above with regard to 

fraud, there is no triable issue of fact as to damages.

8

 

8

If plaintiffs are making a claim that Bank of America had a duty to provide 

them with a better modification than those offered (and that their damages are the 

difference in the amount accrued under their actual loan and the hypothetical loan they 

should have gotten), we reject that argument.
17

Section 17200 Violations

Plaintiffs charge Bank of America and Mellon with violations of section 

17200, which prohibits “any unlawful, unfair or fraudulent business act or practice and 

unfair, deceptive, untrue or misleading advertising. . . .” “‘Because . . . section 17200 is 

written in the disjunctive, it establishes three varieties of unfair competition — acts or 

practices which are unlawful, or unfair, or fraudulent.’” (Cel–Tech Communications, Inc. 

v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)

Only a private plaintiff who has “suffered injury in fact and has lost money 

or property as a result of the unfair competition” has standing to sue under section 17200. 

(Bus. & Prof. Code, § 17204.) A private plaintiff must “(1) establish a loss or deprivation 

of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) 

show that that economic injury was the result of, i.e., caused by the unfair business 

practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. 

Superior Court (2011) 51 Cal.4th 310, 322.)

Here, plaintiffs have suffered no economic injury. They have been living in 

the Property without paying their loan for roughly seven years. This is not a case in 

which the homeowner’s residence was sold at a foreclosure sale. (See, e.g., West v. 

JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 786.) Nor is there a triable of 

issue of fact as to any other type of economic harm which could provide standing to 

plaintiffs to pursue a section 17200 claim. Defendants are entitled to summary 

adjudication of the section 17200 claim.
18

Intentional Infliction of Emotional Distress

Finally, plaintiffs allege Bank of America and Mellon intentionally inflicted 

emotional distress on plaintiffs. The complaint classifies as outrageous conduct the 

allegedly false statements by Bank of America employees and steps taken by defendants 

toward foreclosing on the Property. In their depositions, plaintiffs claimed they suffered 

from stress, headaches, and lack of sleep as a result of defendants’ actions.

The elements of intentional infliction of emotional distress are: “‘“(1) 

extreme and outrageous conduct by the defendant with the intention of causing, or 

reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s 

suffering severe or extreme emotional distress; and (3) actual and proximate causation of 

the emotional distress by the defendant's outrageous conduct.”’” (Christensen v. 

Superior Court (1991) 54 Cal.3d 868, 903.) To be considered outrageous, conduct 

“‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized 

community.’” (Ibid.) “Liability for intentional infliction of emotional distress ‘“does not 

extend to mere insults, indignities, threats, annoyances, petty oppressions, or other 

trivialities.”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

The legitimate exercise of creditor rights (up to and including the 

commencement and completion of foreclosure proceedings) cannot be classified as

outrageous behavior. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) Neither can 

taking a “‘hard line’” during negotiations with a debtor in default. (Price v. Wells Fargo 

Bank (1989) 213 Cal.App.3d 465, 479, 486, overruled on other grounds in Riverisland 

Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 

1176, 1182.) A denial of a loan modification, even one rejecting the death of a couple’s 

son as an adequate hardship to qualify for the modification, is insufficient to support an

intentional infliction of emotional distress cause of action. (Lesley v. Ocwen Financial 

Corp. (C.D.Cal., Mar. 13, 2013, No. SA CV 12–1737–DOC) 2013 U.S. Dist. Lexis 

35056.) 
19

In their evidentiary submissions, defendants negated allegations that they 

engaged in extreme and outrageous conduct. Plaintiffs defaulted on their secured loan 

and have not made a payment since 2008. Bank of America processed every request for 

a loan modification submitted by plaintiffs from 2007 to the date of the summary 

judgment hearing. Bank of America offered two modifications to plaintiffs that would 

have allowed plaintiffs to stay in their home for the term of the loan by paying interest 

only. Defendants did not actually complete the foreclosure process. Bank of America

continued to entertain repetitive modification requests, even after plaintiffs had sued 

them. 

In opposing the motion, plaintiffs pointed out (mostly by referring to 

allegations in their complaint) that defendants stood in the way of plaintiffs obtaining 

their objective — a loan modification consistent with their subjective sense of what was 

fair. Bank of America did not approve all of plaintiffs’ requests for loan modifications, 

and the modifications that were approved did not reduce the interest rate. Bank of 

America did not always act with promptness and efficiency in servicing plaintiffs’ 

account, particularly with regard to the modification requests. While plaintiffs no doubt 

suffered frustration and anxiety in their efforts to rewrite the contract they agreed to in 

2005 and began breaching almost immediately thereafter, a lender is entitled to reject a 

proposal for a loan modification and doing so is not beyond what is tolerated in civilized 

society. As such, defendants did not engage in outrageous conduct by rejecting 

plaintiffs’ loan modification proposals. Defendants are entitled to summary adjudication 

of the intentional infliction of emotional distress cause of action.
20

DISPOSITION

The court correctly granted summary judgment because defendants are 

entitled to judgment as a matter of law as to each of the remaining causes of action in the 

operative complaint. The judgment is affirmed. Defendants shall recover costs incurred 

on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.