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Creditor’s Declaration Was Insufficient Support for Judicial Notice in the Face of Debtor’s Challenge Regarding Creditor’s Notice Requirements
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Creditor’s Declaration Was Insufficient Support for Judicial Notice in the Face of Debtor’s Challenge Regarding Creditor’s Notice Requirements

Intengan v. BAC Home Loans Servicing, LP

In Intengan v. BAC Home Loans Servicing, LP, Arden M. Intengen appealed from the lower court’s judgment of dismissal entered after the court sustained the demurrer to her third amended complaint without leave to amend. Intengan originally sued BAC to preclude forclosure on her property, contending BAC lacked authority to do so under the relevant deed of trust and notice of default.

On appeal, Intengan argued BAC’s demurrer should not have been sustained because she alleged sufficient facts to state a cause of action, including a claim based on BAC’s alleged failure to contact her or attempt with due diligence to contact her before recording the notice of default required by California Civil Code Section 2923.5.

The notice requirements of California Civil Code Section 2923.5, in part, state:

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

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

(B) The mortgage servicer complies with paragraph (1) of subdivision (a) of Section 2924.18, if the borrower has provided a complete application as defined in subdivision (d) of Section 2924.18.

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

The appellate court found lower court erred in taking judicial notice of BAC’s compliance with the statute, because the declaration attached to BAC’s notice of default could not be judicially noticed when the plaintiff challenged the truth of the declaration. When the matter comes up before the trial court again, BAC needs to be prepared to prove compliance with the notice requirements of California Civil Code Section 2923.5.

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