Dowling v. Bank of America, National Association et al

Filing 103

FINAL PRETRIAL ORDER, signed by District Judge Dale A. Drozd on 1/17/2018. (Gaumnitz, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BRENDA D. DOWLING, an individual,

12
13
14
15
16
17
18
19

No. 1:14-cv-01041-DAD-SAB

Plaintiff,
v.

FINAL PRETRIAL ORDER

BANK OF AMERICA, NATIONAL
ASSOCIATION, AKA BANK OF
AMERICA, N.A., AKA BANK OF
AMERICA; and BAC HOME LOANS
SERVICING, AKA BANK OF AMERICA
HOME LOANS,
Defendants.
The parties filed a joint pretrial statement on November 20, 2017. (Doc. No. 84.) On

20

November 27, 2017, the court conducted a final pretrial conference in this action. (Doc. No. 87.)

21

Attorney John Drooyan appeared for plaintiff; attorney Alison V. Lippa appeared for defendant.

22

During the hearing, the court requested that the parties file an addendum to the joint pretrial

23

statement providing an amended joint disputed statement of disputed material facts and amended

24

exhibit lists. The parties filed that addendum on December 7, 2017. (Doc. No. 89.) The court

25

issued a tentative pretrial order on December 21, 2017. (Doc. No. 90.) Both parties filed

26

objections on January 3, 2018. (Doc. Nos. 91, 93.) Defendant filed a response to plaintiff’s

27

objections on January 10, 2018. (Doc. No. 94.) Plaintiff did not file a response to defendant’s

28

objections to the tentative pretrial order.
1

1

This case arises out of the way in which defendant, Bank of America N.A. as successor by

2

merger to BAC Home Loans Servicing LP (“BANA”) (“defendant”), serviced the mortgage loan

3

of plaintiff Brenda Dowling (“plaintiff”). On October 15, 2008, plaintiff obtained a mortgage

4

loan for real property located at 4040 West Iris Avenue, Visalia, California 93277. When

5

plaintiff later experienced difficulty in making monthly loan payments, she sought loan

6

modification assistance from defendant. In response, plaintiff received correspondence from

7

defendant indicating that she might qualify for a conditional “partial claim”1 subject to the

8

completion of several documents. Thereafter, plaintiff mailed three trial plan loan payments to

9

defendant, which defendant received and deposited. Later, defendant determined that plaintiff did

10

not qualify for the requested loan modification. Plaintiff brings claims in this action for breach of

11

contract, conversion, and violation of California’s Unfair Competition Law.

12

I.

13

JURISDICTION/VENUE
Jurisdiction is predicated on 28 U.S.C. §§ 1367. The First Amended Complaint alleged

14

jurisdiction based on violations of the Fair Debt Collection Practices Act. 15 U.S.C.

15

§1962(e)(2)(A), (d)(5). The court awarded summary judgment in favor of defendants on those

16

claims, but retains supplemental jurisdiction over all remaining claims which arise under

17

California state law. Jurisdiction is not contested. Venue is proper pursuant to 28 U.S.C. § 139

18

1(a) and (b). Venue is not contested.

19

II.

20

JURY TRIAL
Plaintiff has demanded a jury trial. However, defendant contends that the claim arising

21

under California’s Unfair Competition Law should be determined by the court. See, e.g., Cargill

22

Inc. v. Progressive Dairy Solutions, Inc., 362 Fed. Appx. 731, 733 (9th Cir. 2010)2 (noting that a

23

§17200 counterclaim is not subject to a jury trial). Defendants are correct in this regard, and the

24
1

25
26
27
28

As explained in more detail below, a “partial claim” is an interest-free loan from the
Department of Housing and Urban Development (“HUD”) offered on qualified loans insured by
the FHA and is one step in the process of a lender considering a borrower for a loan modification.
Even after a partial claim is approved, however, if the lender’s conditions are not satisfied, the
loan modification request may be refused.
2
Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36–3(b).
2

1

court will therefore try plaintiff’s jury claims first and then decide plaintiff’s claim for unfair

2

competition brought pursuant to California Business & Profession Code § 17200 based on the

3

evidence presented during the jury trial. See GSI Tech., Inc. v. United Memories, Inc., No. 5:13-

4

CV-01081-PSG, 2016 WL 3035698, at *1 (N.D. Cal. May 26, 2016).

5

III.

6

UNDISPUTED FACTS
1.

On October 15, 2008, plaintiff and her then-husband Brent Dowling obtained a

7

mortgage loan (the “loan”) in the amount of $291,157 from Provident Mortgage Corporation

8

(“Provident”) for purchase of real property located at 4040 West Iris Avenue, Visalia, California

9

93277 (the “property”). The loan was insured by the Federal Housing Administration (“FHA”).

10

The loan was reflected in a promissory note that was secured by a deed of trust (“DOT”). The

11

DOT was recorded in Tulare County on October 24, 2008, and the property secured performance

12

of the loan.

13

2.

In or around October 2008, Provident sold the loan to Countrywide Bank, FSB

14

(“Countrywide”).

15

3.

Countrywide Home Loans Servicing LP (“CHLS”) serviced the loan from its

16

origination in October 2008. Effective April 27, 2009, CHLS changed its name to BAC Home

17

Loans Servicing LP. Effective July 1, 2011, BAC Home Loans Servicing LP merged into an

18

entity called BANA.

19

4.

In May 2009, plaintiff and Mr. Dowling began to experience difficulty in making

20

their monthly loan payment due to a reduction in their income. They sought loan modification

21

assistance from BANA and defaulted on the loan when they missed their September 2009

22

payment.

23

5.

As part of its consideration of loan modification options, BANA notified plaintiff

24

and Mr. Dowling that they might qualify for a conditional “partial claim” on July 1, 2010. A

25

partial claim is an interest-free loan from the Department of Housing and Urban Development

26

(“HUD”) offered on qualified loans insured by the FHA. Under the partial claim, the lender

27

advances funds for the borrower in an amount necessary to reinstate a delinquent loan, not to

28

exceed the equivalent of twelve months of principal and interest payments. The borrower is
3

1

required to execute a promissory note and subordinate mortgage payable to HUD. A partial claim

2

note does not assess interest and is not due until the borrower either pays off the first mortgage or

3

no longer owns the property. The partial claim is one step in the process of a lender considering

4

the borrower for a loan modification. Even if the partial claim is approved, the lender still has the

5

right to refuse a loan modification if the lender’s conditions are not satisfied. BANA sent

6

plaintiff and Mr. Dowling a partial claim commitment letter and a number of other documents

7

relating to the offer of a conditional partial claim. Plaintiff and Mr. Dowling executed and

8

returned the conditional offer on July 7, 2010, but in doing so did not create a binding contract to

9

modify plaintiff’s loan. A partial claim deed of trust, executed by both plaintiff and Mr. Dowling

10

reflecting the sum of $15,064.12, was recorded on August 12, 2010.

11

6.

As a condition of the borrowers’ loan modification application, BANA required

12

plaintiff and Mr. Dowling to make three trial plan loan payments (“TPP”), which they paid to

13

BANA by cashier’s checks in the following amounts: (1) $2,096.78, dated August 31, 2010

14

which was credited to plaintiff’s loan balance on September 21, 2010; (2) $2,095.76 dated

15

September 30, 2010 which was credited to plaintiff’s loan balance on October 20, 2010; and (3)

16

$2,095.76 dated November 1, 2010 which was credited to plaintiff’s loan balance on November

17

16, 2010.

18

7.

19

In August 2010, BANA determined that plaintiff and Mr. Dowling did not qualify

for the partial claim.

20

8.

On August 29, 2012, plaintiff executed and recorded a quit claim deed and an

21

interspousal grant deed to remove Mr. Dowling from title to the property as part of their divorce

22

settlement.

23

9.

On September 10, 2012, the foreclosure trustee, ReconTrust, recorded a notice of

24

default in Tulare County reflecting a past due amount on the mortgage loan of $61,330.36 as of

25

September 7, 2012. No foreclosure sale date was ever set, and no foreclosure sale occurred.

26

10.

The recorded documents reflect that a full reconveyance of the partial claim deed

27

of trust was recorded on March 10, 2013.

28

/////
4

1

11.

Later, and unconnected to any partial claim, BANA offered plaintiff a loan

2

modification in 2012, which she rejected. In April 2014, BANA offered plaintiff a loan

3

modification, which she executed and accepted and which was recorded in the Official Records of

4

the County of Tulare on April 25, 2014 (“Loan Modification”).

5

12.

At the present time, plaintiff is current on the loan and there is no active

6

foreclosure process against the property.

7

IV.

DISPUTED FACTUAL ISSUES

8

1.

Whether the Partial Claim Agreement was conditional.

9

2.

Whether plaintiff’s payments of $2,096.78 dated August 31, 2010, $2,095.76 dated

10

September 30, 2010, and $2,095.76 dated November 1, 2010 were made pursuant to Section A of

11

the offer of Partial Claim and Agreement.

12

3.

Whether defendant timely and properly credited to the mortgage loan account

13

plaintiff’s payments of $2,096.78 dated August 31, 2010, $2,095.76 dated September 30, 2010,

14

and $2,095.76 dated November 1, 2010.

15
16

4.

the mortgage loan as part of the loan modification.

17
18

5.

6.

Whether the Partial Claim offer was withdrawn because plaintiff and her ex-

husband failed to comply with the conditions of the offer.

21
22

Whether plaintiff complied with the conditions of defendant’s offer

of a conditional Partial Claim Agreement.

19
20

Whether defendant agreed to forgive $75,000 in principal balance with respect to

7.

Whether defendant timely and properly credited plaintiff’s trial modification

payments.

23

8.

Whether defendant timely and properly credited plaintiff’s loan payments.

24

9.

Whether defendant misrepresented and failed to disclose material facts to plaintiff

25

in the course of servicing plaintiff’s mortgage loan from 2009 to the present.

26

V.

27
28

DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE
The parties have not yet filed motions in limine. The court does not encourage the filing

of motions in limine unless they are addressed to issues that can realistically be resolved by the
5

1

court prior to trial and without reference to the other evidence which will be introduced by the

2

parties at trial. The parties anticipate filing the motions listed in limine below. Any motions in

3

limine counsel elects to file shall be filed no later than 21 days before trial. Opposition shall be

4

filed no later than 14 days before trial and any replies shall be filed no later than 10 days before

5

trial. Upon receipt of any opposition briefs, the court will notify the parties if it will hear

6

argument on any motions in limine prior to the first day of trial. The parties have indicated that

7

they intend to file the following motions in limine.

8

Plaintiff’s Motions in Limine

9

1.

A motion in limine to exclude testimony and evidence that defendant did not

10

foreclose on plaintiff’s property that is the subject of the loan, on the grounds that such

11

information is not relevant to plaintiff’s claims and is more prejudicial than probative.

12

2.

A motion in limine to exclude testimony related to the history of plaintiff’s

13

payments on the loan, other than those payments which are the subject of plaintiff’s causes of

14

action for breach of contract and conversion, on the grounds that this information is not relevant

15

to plaintiff’s claims and is more prejudicial than probative.

16

3.

A motion in limine to exclude testimony related to defendant’s $50,000 Principal

17

Forbearance Adjustment from July 2, 2015, on the grounds that this information is not relevant to

18

plaintiff’s claims and is more prejudicial than probative.

19

Defendant’s Motions in Limine

20

1.

A motion in limine to exclude any evidence plaintiff seeks to introduce concerning

21

other unrelated pending or dismissed suits or judgments from other courts and jurisdictions in

22

which BANA’s practices or procedures with mortgage lending, including but not limited to

23

partial claim agreements or loan modifications, are at issue.

24

2.

A motion in limine to exclude evidence or argument in support of plaintiff’s claim

25

for emotional distress damages on an intentional tort theory, including that BANA engaged in

26

conduct that constitutes oppression, fraud, or malice, or that BANA acted with intent to vex,

27

injure or annoy, or with conscious disregard of plaintiff's rights in support of her prayer for

28

emotional distress damages on the cause of action for conversion.
6

1

3.

A motion in limine to exclude evidence or argument that BANA is liable for

2

punitive damages based on an intentional tort theory, including that BANA engaged in conduct

3

that constitutes oppression, fraud, or malice, or that BANA acted with intent to vex, injure or

4

annoy, or with conscious disregard of plaintiff's rights.

5

VI.

6
7

SPECIAL FACTUAL INFORMATION
Pursuant to Local Rule 281(b)(6), the following special factual information pertains to this

action because it involves contracts:

8

1.

The parties dispute whether a binding partial claim agreement came into existence,

9

and therefore dispute whether the following documents ripened into binding agreements:

10

Authorization and Acknowledgment, Negotiation Agreement, Offer of Partial Claim and

11

Agreement, Acceptance of Offer for Partial Claim, and Deed of Trust and Subordinate Note.

12

These documents are the subject of plaintiff’s cause of action for breach of contract.

13

2.

Whether the contract and any modifications or collateral agreements were written

14

or oral or both, specifying any document, letter, or other writing relied upon by date and parties,

15

and indicating any oral agreement relied upon by date, place, and parties.

16

(a)

Plaintiff states that the Authorization and Acknowledgment, Negotiation

17

agreement, Offer of Partial Claim and Agreement, Acceptance of Offer for

18

Partial Claim, and Deed of Trust and Subordinate Note documents are

19

written and were relied upon by the parties beginning on or about July 7,

20

2010. The aforementioned contract and collateral agreements were all

21

written and did not include any oral agreements.

22

(b)

Defendant disputes that a conditional offer for a partial claim agreement

23

ever became operative, and therefore disputes that there are “modifications

24

or collateral agreements” that alter the Deed of Trust.

25

3.

26

(a)

27
28

Any misrepresentation of fact, mistake, or other matter affecting validity.
Plaintiff does not claim any misrepresentation of fact, mistake, or other
matter affects the validity of the contract and collateral agreements.

/////
7

1

(b)

2

Defendant disputes that a conditional offer for a Partial Claim Agreement
ever became operative, or that it affects the validity of the deed of trust.

3

4.

4

Any breach of contract.
(a)

Plaintiff alleges that defendant has failed to perform its obligations under

5

the terms of the Partial Claim Agreement without legal basis for its failure

6

to perform.

7

(b)

8

Defendant disputes that a conditional offer for a Partial Claim Agreement
ever became operative.

9

5.

10

Any waiver or estoppel.
(a)

Defendant contends that plaintiff is estopped from alleging breach of

11

contract because she breached the promissory note and deed of trust by

12

failing to make her loan payments after August 2009.

13

6.

The measure of restitution or damages and an itemized statement of the elements

14

thereof.

15

(a)

Plaintiff seeks applied late fees, and interest at 5.5% per annum, charged by

16

defendant from July 7, 2010 to the execution of the Loan Modification, and

17

thereafter at 2% from August 1, 2013 until August 1, 2018, and 3% until

18

August 1, 2019, and thereafter at 3.375% for the term of the loan on

19

$15,064.12 that is the subject of the partial claim and agreement, deed of

20

trust, and subordinate note.

21
22

(b)
VII.

23

Defendant disputes that plaintiff is entitled to damages.

RELIEF SOUGHT
1.

Plaintiff seeks actual damages for breach of contract and conversion; punitive

24

damages for defendant’s oppressive and fraudulent conduct in connection with the conversion

25

claim; and injunctive relief under the California Unfair Competition Law for defendant’s

26

improper delay in crediting plaintiff’s loan payments.

27
28

2.

Defendant seeks judgment in its favor.

/////
8

1

VIII.

POINTS OF LAW
Plaintiff’s remaining claims are for alleged breach of contract and conversion, and a

2
3

corresponding unfair business practices claim under California Business & Professions Code §

4

17200 relating to both causes of action. The claims and defenses arise under state law. Thus, the

5

points of law at issue at trial are:

6

1. The elements of, standards for, and burden of proof in an action alleging breach of

7

contract.

8

2. The elements of, standards for, and burden of proof in an action alleging conversion.

9

3. The elements of, standards for, and burden of proof in an action alleging unfair business

10

practices arising under California Business & Professions § 17200.

11

4. The elements of, standards for, and burden of proof for determining whether punitive

12

damages are appropriate, if plaintiff prevails on her remaining claims.

13

Trial briefs addressing the points of law implicated by plaintiff’s remaining claims shall

14

be filed with this court no later than 7 days before trial in accordance with Local Rule 285.

15

ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY

16

ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT

17

BECOMES FINAL ARE DISMISSED AND DEEMED WAIVED.

18

IX.

19
20

None.
X.

21
22

ABANDONED ISSUES

WITNESSES
The anticipated witnesses for both parties are listed below. Each party may call any

witnesses designated by the other.

23

A.

24

Witness list
(1)

Plaintiff

25

(i) Plaintiff Brenda Dowling – contact through plaintiff’s counsel;

26

(ii) Jennifer Chatman, employee and person most knowledgeable (PMK) of
defendant BANA – contact through defendant’s counsel;

27
28

/////
9

1

(2)

Defendant

2

(i) Brenda Dowling – contact through plaintiff’s counsel;

3

(ii) Brent Dowling – whereabouts currently unknown, but likely in the

4

Fresno area;

5

(iii) Jennifer Chatman or a BANA representative(s) to testify concerning

6

the partial claim agreement and general loan servicing issues, the

7

requirements of the deed of trust, application of payments toward the

8

loan, plaintiff’s default history and the 2012 and 2014 loan

9

modifications and principal forgiveness, and the specific handling of
the loan in this matter – contact through defendant’s counsel;

10
11

B.

The court does not allow undisclosed witnesses to be called for any purpose,

12

including impeachment or rebuttal, unless they meet the following criteria:

13

(1)

The party offering the witness demonstrates that the witness is for the

14

purpose of rebutting evidence that could not be reasonably anticipated at

15

the pretrial conference, or

16

(2)

17
18

The witness was discovered after the pretrial conference and the proffering
party makes the showing required in paragraph B, below.

C.

Upon the post pretrial discovery of any witness a party wishes to present at trial,

19

the party shall promptly inform the court and opposing parties of the existence of

20

the unlisted witnesses so the court may consider whether the witnesses shall be

21

permitted to testify at trial. The witnesses will not be permitted unless:

22

(1)

23
24

The witness could not reasonably have been discovered prior to the
discovery cutoff;

(2)

25

The court and opposing parties were promptly notified upon discovery of
the witness;

26

(3)

If time permitted, the party proffered the witness for deposition; and

27

(4)

If time did not permit, a reasonable summary of the witness’s testimony

28

was provided to opposing parties.
10

1

XI.

EXHIBITS, SCHEDULES, AND SUMMARIES
The parties’ exhibits are listed below. No exhibit shall be marked with or entered into

2
3

evidence under multiple exhibit numbers, and the parties are hereby directed to meet and confer

4

for the purpose of designating joint exhibits. All exhibits must be pre-marked as discussed below.

5

At trial, joint exhibits shall be identified as JX and listed numerically, e.g., JX-1, JX-2. Plaintiff’s

6

exhibits shall be listed numerically and defendants’ exhibits shall be listed alphabetically. All

7

exhibits must be pre-marked. The parties must prepare three (3) separate exhibit binders for use

8

by the court at trial, with a side tab identifying each exhibit in accordance with the specifications

9

above. Each binder shall have an identification label on the front and spine. The parties must

10

exchange exhibits no later than 28 days before trial. Any objections to exhibits are due no later

11

than 14 days before trial. The final exhibits are due by February 1, 2018, which is the Thursday

12

before the trial date. In making any objection, the party is to set forth the grounds for the

13

objection. As to each exhibit which is not objected to, it shall be marked and received into

14

evidence if offered and will require no further foundation.

15
16

The court does not allow the use of undisclosed exhibits for any purpose, including
impeachment or rebuttal, unless they meet the following criteria

17

A.

The court will not admit exhibits other than those identified on the exhibit lists

18

referenced above unless:

19

(1)

The party proffering the exhibit demonstrates that the exhibit is for the

20

purpose of rebutting evidence that could not have been reasonably

21

anticipated, or

22

(2)

23

The exhibit was discovered after the issuance of this order and the
proffering party makes the showing required in paragraph B, below.

24

B.

Upon the discovery of exhibits after the discovery cutoff, a party shall promptly

25

inform the court and opposing parties of the existence of such exhibits so that the

26

court may consider their admissibility at trial. The exhibits will not be received

27

unless the proffering party demonstrates:

28

/////
11

1

(1)

The exhibits could not reasonably have been discovered earlier;

2

(2)

The court and the opposing parties were promptly informed of their

3

existence;

4

(3)

The proffering party forwarded a copy of the exhibits (if physically

5

possible) to the opposing party. If the exhibits may not be copied the

6

proffering party must show that it has made the exhibits reasonably

7

available for inspection by the opposing parties

8

C.

Joint Exhibits

9

(1)

Original Provident Mortgage Corporation Note;

10

(2)

Original Provident Mortgage Company Deed of Trust;

11

(3)

Payment history of the subject loan;

12

(4)

Correspondence from Theautra Stephens to plaintiff Brenda Dowling and

13

Brent Dowling with Authorization and Acknowledgement, Negotiation

14

Agreement, Partial Claim Commitment, Offer of Partial Claim and

15

Agreement, Acceptance of Offer for Partial Claim, Deed of Trust, and

16

Subordinate Note (Doc. No. 66-1 at 22–39);

17

(5)

18

Recorded Deed of Trust to the Department of Housing and Urban
Development (HUD) (Doc. No. 25-1 at 37–41);

19

(6)

Plaintiff’s cashier’s checks to Bank of America (Doc. No. 66-1 at 41–46);

20

(7)

Transcript of plaintiff’s deposition3 of March 4, 2017;

21

(8)

Transcript of Jennifer Chatman’s deposition of from March 16, 2017;

22

(9)

Exhibit 3 to Jennifer Chatman’s March 16, 2017 deposition (BANA-

23
24

Dowling 002729);
/////

25
26
27
28

3

While the deposition transcript of a party may be used by an adverse party for any purpose at
trial otherwise permitted by the Federal Rules of Evidence, deposition transcripts are not
normally admitted into evidence at trial as exhibits. If the parties intend to offer these deposition
transcripts into evidence at trial, they are directed to be prepared to support their admission into
evidence.
12

1

(10)

2

Exhibit 4 to Jennifer Chatman’s March 16, 2017 deposition (BANADowling 002861-2864);

3

(11)

4

Exhibit 5 to Jennifer Chatman’s March 16, 2017 deposition (BANADowling 001790-1797);

5

(12)

Exhibit 6 to Jennifer Chatman’s March 16, 2017 deposition (facsimile

6

coversheet and loan payment history with handwriting and customer

7

service department screen shots, 1-20 pages);

8

(13)

9

Exhibit 7 to Jennifer Chatman’s March 16, 2017 deposition (Notices of
Intent to Accelerate, 1-12 pages);

10

(14)

11

Exhibit 8 to Jennifer Chatman’s March 16, 2017 deposition
(Correspondence from BANA to Brent and Brenda Dowling, 1-8 pages);

12

(15)

13

Exhibit 9 to Jennifer Chatman’s March 16, 2017 deposition (Countrywide
Monthly Home Loan Statement for April 2009);

14

(16)

15

Exhibit 10 to Jennifer Chatman’s March 16, 2017 deposition (Countrywide
Monthly Home Loan Statement for May 2009);

16

(17)

Exhibit 11 to Jennifer Chatman’s March 16, 2017 deposition (Notice of

17

Assignment, Sale, or Transfer of Ownership of Mortgage Loan, BANA-

18

Dowling 003417-3418);

19

(18)

20

Exhibit 12 to Jennifer Chatman’s March 16, 2017 deposition (Partial Claim
Information, BANA-Dowling 000475-476);

21

(19)

Exhibit 13 to Jennifer Chatman’s March 16, 2017 deposition

22

(Correspondence from Theautra R. Stephens to Plaintiff with enclosures

23

dated July 1, 2010, 1-13 pages);

24

(20)

25

Agreement, BANA-Dowling 003516-3517);

26

(21)

27
28

Exhibit 14 to Jennifer Chatman’s March 16, 2017 deposition (Negotiation

Exhibit 15 to Jennifer Chatman’s March 16, 2017 deposition (Partial Claim
Deed of Trust, 1-6 pages);

/////
13

1

(22)

Exhibit 16 to Jennifer Chatman’s March 16, 2017 deposition (Copies of
cashier’s checks, 1-6 pages);

2
3

(23)

4

Exhibit 17 to Jennifer Chatman’s March 16, 2017 deposition (Notices of
delinquency from BANA to plaintiff and Brent Dowling, 1-25 pages);

5

(24)

Exhibit 18 to Jennifer Chatman’s March 16, 2017 deposition

6

(Correspondence dated January 15, 2011 from Bank of America Home

7

Loans to plaintiff and Brent Dowling, BANA-Dowling 000975-977);

8

(25)

9

Exhibit 19 to Jennifer Chatman’s March 16, 2017 deposition (Request for
Modification and Affidavit and attachments thereto, 1–73 pages);

10

(26)

Exhibit 20 to Jennifer Chatman’s March 16, 2017 deposition (May 30,

11

2014 Correspondence from Bank of America Home Loans to plaintiff and

12

Brent Dowling, BANA-Dowling 003573);

13

(27)

14

Exhibit 21 to Jennifer Chatman’s March 16, 2017 deposition (Various
correspondence from BANA to plaintiff and Brent Dowling, 1-9 pages);

15

(28)

Exhibit 22 to Jennifer Chatman’s March 16, 2017 deposition (June 4, 2011

16

correspondence from Annie Fenster to plaintiff and Brent Dowling,

17

BANA-Dowling 000967-969);

18

(29)

19

Exhibit 23 to Jennifer Chatman’s March 16, 2017 deposition (Request for
modification and affidavit and attachments thereto, 1-64 pages);

20

(30)

Exhibit 24 to Jennifer Chatman’s March 16, 2017 deposition (September 7,

21

2012 correspondence from Stevahn Thomas to plaintiff and Brent

22

Dowling, BANA-Dowling 0004338);

23

(31)

Exhibit 25 to Jennifer Chatman’s March 16, 2017 deposition (Making

24

Home Affordable Program Request for Mortgage Assistance and

25

attachments thereto, 1–45 pages);

26

(32)

27
28

Exhibit 26 to Jennifer Chatman’s March 16, 2017 deposition (Payoff
statements, 1–10 pages);

/////
14

1

(33)

2
3
4

Exhibit 27 to Jennifer Chatman’s March 16, 2017 deposition (March 19,
2014 loan modification offer, 1–17 pages);

D.

Plaintiff’s Exhibits
(1)

5

Provident Mortgage Corp. correspondence re: transfer of the loan to
Countrywide (Doc. No. 66-1 at 3);

6

(2)

Countrywide Bank Monthly Home Loan Statement (Doc. No. 66-1 at 5-6);

7

(3)

Bank of America: Monthly Home Loan Statement (Doc. No. 66-1 at 17-

8
9

18);
(4)

10

Plaintiff’s November 16, 2009 correspondence to defendant (Doc. No. 66-1
at 20);

11

(5)

Defendant’s Notices of Intent to Accelerate (Doc. No. 66-1 at 48–63);

12

(6)

Defendant’s Payoff Statements with payoff calculation (Doc. No. 66-3 at

13
14

49–59);
(7)

15
16

Brent Dowling (Doc. No. 66-3 at 67);
(8)

17
18

Defendant’s April 15, 2013 correspondence to plaintiff and her ex-husband

Defendant’s home loan summary for September 29, 2010 and October 28,
2010 (Doc. No. 25-1 at 105, 108);

(9)

Letter from the Department of the Treasury Federal Revenue Service to

19

plaintiff and Brent Dowling re: “Overpaid Tax Applied to Other Taxes You

20

Owe” (Doc. No. 66-3 at 114);

21

(10)

Declarations in Support of Motion for Class Certification for In Re Bank of

22

America Home Affordable Modification Program (HAMP) Contract

23

Litigation, Case No. 1:10-md-2193 RWZ (Doc. No. 66-3 at 123–167);

24

(11)

Opinion of Bankruptcy Judge Christopher M. Klein United States

25

Bankruptcy Court, Eastern District of California, Case NO. 10-35624-B-

26

13J;

27
28

(12)

Abstract of Judgment from Civil and Small Claims court, recorded in the
County of Tulare, dated January 18, 2008 (Doc. No. 66-3 at 115–116);
15

1

(13)

Defendant’s trial modification letters to plaintiff;

2

(14)

Defendant’s loan modification;

3

(15)

Defendant’s income documents from December 31, 2015 through

4

December 31, 2016;

5

(16)

6

E.

Form 10-K for Bank of America;

Defendant’s Exhibits

7

(1)

Notice of Default;

8

(2)

Negotiation Agreement;

9

(3)

BANA’s loan file, including the servicing history for the Loan;

10

(4)

The 2012 and 2014 Modification offers and agreements, and

11
12
13
14

correspondence relating to the same.
XII.

DISCOVERY DOCUMENTS
Counsel must lodge the sealed original copy of any deposition transcript to be used at trial

with the Clerk of the Court no later than 14 days before trial.

15

Plaintiff may use the following discovery documents at trial:

16

1.

Deposition testimony of Jennifer Chapman and Brenda Dowling; and

17

2.

Defendant’s responses to the first set of requests for admissions

18

Defendant may use the following discovery documents at trial:

19

1.

20
21

Plaintiff’s deposition transcript, March 4, 2017;
Exhibits to Plaintiff’s deposition:


22

Exhibit 1 – Defendant Bank of America, N.A.'s Notice of Deposition of
plaintiff Brenda Dowling and Request For Production of Documents;

23



Exhibit 2 – Deed Of Trust;

24



Exhibit 3 – Note;

25



Exhibit 4 – Letter to Bank of America, N.A. from plaintiff dated November

26

11, 2009;

27



Exhibit 5 – Loan Modification Submission dated April 11, 2011;

28



Exhibit 6 – Loan Modification Submission dated November 23, 2011;
16

1



Exhibit 7 – Loan Modification Submission dated September 19, 2012;

2



Exhibit 8 – Fax to BANA showing balance of loan and interest, dated July

3

16, 2014;


4
5

XIII.

6
7

FURTHER DISCOVERY OR MOTIONS
Both parties anticipate filing motions in limine, as discussed above.

XIV. STIPULATIONS

8
9

Exhibit 12 – Loan Modification Agreement April 25, 2014;

None.
XV.

10

AMENDMENTS/DISMISSALS
Plaintiff anticipates seeking amendments for conversion and fraud pursuant to Federal

11

Rule of Civil Procedure 15(b)(1)(2) based on testimony presented at trial. Defendant argues that

12

any such request for amendment at trial is improper based on this court’s prior rejection of

13

plaintiff’s effort to amend the complaint by adding additional claims for conversion and fraud.

14

(See Doc. No. 71).

15

XVI. SETTLEMENT

16

The parties conducted a private mediation on March 30, 2017 before retired Santa Clara

17

County Superior Court Judge Kevin Murphy that did not result in a settlement. A court

18

supervised settlement conference was also conducted on May 23, 2017 with United States

19

Magistrate Judge Barbara McAuliffe, which did not result in a settlement. The parties do not

20

anticipate that further settlement conferences would be helpful.

21

XVII. JOINT STATEMENT OF THE CASE

22

The parties have not agreed to a joint statement of the case because there are many

23

disputed issues of fact. Nonetheless, the parties are directed to meet and confer in order to agree

24

upon a neutral statement of the case that may be read to the prospective jurors during jury

25

selection.

26

XVIII. SEPARATE TRIAL OF ISSUES

27
28

Plaintiff seeks a separate trial to determine punitive damages, if she prevails.
/////
17

1

XIX. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

2
3

None.
XX.

4
5

ATTORNEYS’ FEES
Not applicable.

XXI. TRIAL EXHIBITS

6

Special handling of trial exhibits is not anticipated. Plaintiff requests that the court retain

7

exhibits pending appeal decision. However, the court has indicated that its practice is to return

8

trial exhibits to the parties for retention and that it intends to follow that practice in this case.

9

XXII. TRIAL PROTECTIVE ORDER AND REDACTION OF TRIAL EXHIBITS

10
11

Not applicable.
XXIII. ESTIMATED TIME OF TRIAL/TRIAL DATE

12

Jury trial is set for February 6, 2018 at 1:00 p.m. in Courtroom 5 before the Honorable

13

Dale A. Drozd. Trial is anticipated to last two days. The parties are directed to Judge Drozd’s

14

standard procedures available on his webpage on the court’s website.

15

Counsel for both parties are to call Renee Gaumnitz, courtroom deputy, at (559) 499-

16

5652, one week prior to trial to ascertain the status of the trial date.

17

XXIV. PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS

18
19

The parties shall file any proposed jury voir dire 7 days before trial. Each party will be
limited to fifteen minutes of jury voir dire.

20

The court directs counsel to meet and confer in an attempt to generate a joint set of jury

21

instructions and verdicts. The parties shall file any such joint set of instructions 14 days before

22

trial, identified as “Joint Jury Instructions and Verdicts.” To the extent the parties are unable to

23

agree on all or some instructions and verdicts, their respective proposed instructions are due 14

24

days before trial.

25

Counsel shall e-mail a copy of all proposed jury instructions and verdicts, whether agreed

26

or disputed, as a Word document to [e-mail] no later than 14 days before

27

trial; all blanks in form instructions should be completed and all brackets removed.

28

/////
18

1

Objections to proposed jury instructions must be filed 7 days before trial; each objection

2

shall identify the challenged instruction and shall provide a concise explanation of the basis for

3

the objection along with citation of authority. When applicable, the objecting party shall submit

4

an alternative proposed instruction on the issue or identify which of his or her own proposed

5

instructions covers the subject.

6

XXV. TRIAL BRIEFS

7
8
9
10

As noted above, trial briefs are due 7 days before trial.
IT IS SO ORDERED.
Dated:

January 17, 2018
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19