Opinion
A150015
05-31-2018
ANDRE OSIPOV, Plaintiff and Appellant, v. CAPITAL ONE, N.A., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV533509)
Andre Osipov sued his home loan servicer, Capital One, N.A. (Capital One), for wrongful foreclosure. The trial court granted Capital One's motion for summary judgment. On appeal, Osipov challenges evidence submitted by Capital One in support of its motion and the trial court's admission of that evidence. We affirm.
The operative complaint also names as defendants two successor trustees under the deed of trust, MTC Financial, Inc. (MTC Financial) and Northwest Trustee Services, Inc. (Northwest). These parties were not affected by the summary judgment ruling and are not parties to the appeal.
I. LEGAL BACKGROUND
"The Homeowner Bill of Rights [citations] (HBOR), effective January 1, 2013, was enacted '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.' (Civ. Code, § 2923.4, subd. (a).)" (Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1272, fn. omitted.) Among other things, the HBOR prohibits a mortgage servicer from recording a notice of default before the borrower is sent a letter explaining its right to request various loan documents. (See Civ. Code, former § 2923.55, subds. (a)-(b).) "[The] HBOR provides for injunctive relief for statutory violations that occur prior to foreclosure ([id.,] § 2924.12, subd. (a)), and monetary damages when the borrower seeks relief for violations after the foreclosure sale has occurred ([id.,] § 2924.12, subd. (b))." (Valbuena, at p. 1272.) Civil Code section 2924.12, subdivision (c), provides a safe harbor: "A mortgage servicer . . . shall not be liable for any violation that it has corrected and remedied prior to the recordation of a trustee's deed upon sale, or that has been corrected and remedied by third parties working on its behalf prior to the recordation of a trustee's deed upon sale."
Many, but not all, sections of the HBOR were subject to a sunset provision, effective on January 1, 2018. (Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 157.) Civil Code former section 2923.55 is one section subject to the sunset provision. (Id., former § 2923.55, subd. (i).) Thus, all references to Civil Code former section 2923.55 are to the statute in effect between January 1, 2013 and December 31, 2017. (See Stats. 2013, ch. 76, § 15.) Civil Code former section 2923.55 provided, in relevant part: "(a) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to Section 2924 until all of the following: [¶] (1) The mortgage servicer has satisfied the requirements of paragraph (1) of subdivision (b). [¶] . . . [¶] (b) [¶] (1) As specified in subdivision (a), a mortgage servicer shall send the following information in writing to the borrower: [¶] . . . [¶] (B) A statement that the borrower may request the following: [¶] (i) A copy of the borrower's promissory note or other evidence of indebtedness. [¶] (ii) A copy of the borrower's deed of trust or mortgage. [¶] (iii) A copy of any assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose. [¶] (iv) A copy of the borrower's payment history since the borrower was last less than 60 days past due." (Italics added.)
Although Civil Code section 2924.12 has been reenacted, it no longer authorizes damages or injunctive relief for a violation of Civil Code section 2923.55. All references to Civil Code section 2924.12, subdivisions (a) and (b), are to the statute in effect between January 1, 2013 and December 31, 2017. (See Stats. 2012, ch. 87, § 16.)
II. FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, Osipov obtained a $627,000 loan, secured by his primary residence at 1841 Evergreen Street in San Mateo, California (the Property), from ING Bank, F.S.B. (ING). Osipov also signed a promissory note and deed of trust securing the note.
In 2012, Capital One acquired ING. Thereafter, Capital One serviced Osipov's home loan. On January 22, 2014, Northwest, acting as trustee for Capital One, recorded a notice of default and election to sell under deed of trust. The notice of default stated Osipov owed "$61,585.38 as of 01/17/2014." The notice of default has never been rescinded. However, no trustee's sale has taken place.
On December 28, 2015, Osipov filed the operative third amended complaint (TAC) against Capital One, Northwest, and MTC Financial. The TAC alleged a single cause of action for wrongful foreclosure. In support, Osipov alleged a single theory—the notice of default was void because Capital One did not comply with Civil Code former section 2923.55, subdivision (b)(1)(B), before recording the notice of default. Osipov sought damages and injunctive relief.
Capital One filed a motion for summary judgment, arguing there were no triable issues of material fact. In support of its motion, Capital One filed a declaration from its assistant vice president, Alan Baxter, who stated, "I have access to the business records of Capital One, including [its] file concerning the loan that is the subject matter of this litigation." Baxter, relying on an entry in a correspondence log attached to his declaration, stated a letter complying with Civil Code former section 2923.55, subdivision (b)(1)(B), had been sent to Osipov in December 2013.
Specifically, Baxter's declaration provides: "The records of Capital One relating to the subject loan are made in the ordinary course of business by persons whose job it is to make such records, and/or are received by Capital One in the ordinary course of its business. The records were made at or near the time of the occurrence of the events which they record. I have personally reviewed Capital One's records pertaining to the subject loan, including the loan origination, servicing, and foreclosure files. . . . [¶] . . . [¶] As part of its servicing of the Loan, . . . Capital One maintains copies of correspondence sent to [Osipov] and a letter log history file for correspondence sent to [Osipov.] As discussed above, these copies of correspondence and letter log history file are made and kept in the ordinary course of business. [¶] A copy of a letter dated December 20, 2013 that Capital One sent to [Osipov] as indicated in the letter is attached hereto as Exhibit C. [¶] . . . [¶] A copy of the relevant page for Capital One's letter log history file is attached hereto as Exhibit D. The letter log history file indicates that on December 20, 2013, Capital One mailed [Osipov] a letter with identification code of 'XC105/48QA'. . . ."
Exhibit C to the Baxter declaration is a copy of a letter dated December 20, 2013 (Letter), which is addressed to Osipov at his home address. The Letter states: "This letter is being sent to you in accordance with the requirements of California Civil Code. . . . [Y]ou have the right to request the following from Capital One, N.A.: [¶] (i) A copy of the promissory note or other evidence of indebtedness; [¶] (ii) A copy of the deed of trust or mortgage; [¶] (iii) A copy of any assignment, if applicable, of the mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose; [¶] (iv) A copy of the payment history for the loan since the loan was last less than 60 days past due." Also attached to the Baxter declaration was Exhibit D, identified as "the relevant page for Capital One's letter log history file" (Correspondence Log) that indicates on December 20, 2013, Capital One mailed Osipov a "Letter" referred to as "XC105," and describes the letter as "CA Request for Docs." Exhibit D itself displays several columns containing various log entries for Osipov's loan. With respect to the date of December 20, 2013, among other notations, the Correspondence Log refers to a "Letter" referred to as "XC105," and describes the letter as "CA Request for Docs."
One of Capital One's litigation counsel also stated via declaration that, during discovery in January 2016, Capital One produced a copy of the Letter to Osipov. Capital One therefore argued it could take advantage of the HBOR's safe harbor provision (Civ. Code, § 2924.12, subd. (c)) even if the original Letter was never mailed.
Osipov opposed Capital One's motion for summary judgment, but submitted no evidence in support of his opposition. Osipov objected to the Baxter declaration, but submitted no declaration denying receipt of the letter. His opposition to Capital One's separate statement of undisputed facts relied entirely upon his evidentiary objections.
The trial court granted the motion for summary judgment, overruling Osipov's objections to the Baxter declaration. The court agreed with Capital One that it had established an adequate foundation for both Baxter's statement that the Letter was mailed to Osipov in December 2013, and application of the business records exception to the hearsay rule (Evid. Code, §§ 1200, 1271). The court explained: "Baxter has testified that 'Capital One maintains copies of correspondence sent to [Osipov] and a letter log history file for correspondence sent to [Osipov].' . . . Baxter has reviewed Capital One's log history and the documents in the file. . . . These facts are enough to establish a foundation for [Baxter's] statement that the [Letter] was indeed sent to [Osipov]." Even if Capital One had failed to mail the Letter in December 2013, the trial court concluded the HBOR safe harbor applied because the Letter had been produced to Osipov in the course of discovery.
Undesignated statutory references are to the Evidence Code.
The trial court entered judgment in Capital One's favor. Osipov filed a timely notice of appeal.
III. DISCUSSION
Osipov contends the trial court erred in granting summary judgment because Capital One failed to meet its burden as the moving party. Specifically, Osipov insists the Letter and Correspondence Log are hearsay. He further contends the trial court abused its discretion in overruling his evidentiary objections to the Baxter declaration, which he contends failed to satisfy the foundational requirements for the business records exception to the hearsay rule and failed to establish Baxter's personal knowledge that the Letter was, in fact, mailed. Osipov also contends the trial court erred by relying on the HBOR's safe harbor provision (Civ. Code, § 2924.12, subd. (c)) as an alternative basis for granting summary judgment. A. Standard of Review
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted; accord, Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must make a prima facie showing either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. (Id., § 437c, subds. (o), (p)(2); Aguilar, at p. 850.) A defendant moving for summary judgment may satisfy this initial burden of production by presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on plaintiff's factually devoid discovery responses to show that plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element. (Aguilar, at pp. 854-855; Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1593.) The opposing party has no obligation to show a triable issue of material fact exists unless and until the moving party has met its burden. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-744.) If the defendant makes such a showing, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. (Aguilar, at p. 850.)
On review of an order granting summary judgment, "we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) However, we review the trial court's ruling on evidentiary objections for an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) "Discretion is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the circumstances before it being considered.' " (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) The trial judge is vested with wide discretion in determining whether a proper foundation has been laid for the admission of business records under section 1271. (People v. Beeler (1995) 9 Cal.4th 953, 978; County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.) "Where the trial court has determined that the foundation laid was sufficient to support the introduction of evidence under the business records exception, and the record reasonably supports this determination, its conclusion is binding on the appellate court." (Grant W., at p. 1450.) "We will affirm an order granting summary judgment . . . if it is correct on any ground the parties had an adequate opportunity to address in the trial court . . . ." (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.) B. Evidentiary Objections
The TAC's sole cause of action is for wrongful foreclosure on the theory that Capital One failed to send a statement in compliance with Civil Code former section 2923.55, subdivision (b)(1)(B), before recording the notice of default. Osipov concedes Capital One does not have to provide evidence he received the letter. Yet he insists Capital One did not meet its burden to negate an element of his cause of action and presents two interrelated evidentiary issues: (1) the admissibility of Baxter's statement the Letter was mailed to Osipov; and (2) the admissibility of the Letter and Correspondence Log as business records. We begin with Osipov's objection to the Baxter declaration itself.
1. Personal Knowledge Objection to Baxter Declaration
Osipov contends the Baxter declaration fails to establish, on Baxter's own personal knowledge, the Letter was mailed. Osipov's argument is that Baxter's declaration is too conclusory. He maintains Baxter's declaration "provide[s] nothing to demonstrate that the letter had in fact, been printed and mailed." Capital One asserts this is a "straw man argument" because Baxter "did not claim to have drafted or mailed the Letter himself." Capital One asserts Baxter's declaration "was admissible, instead, under the business records exception to the hearsay rule" because Baxter had personal knowledge of Capital One's record-keeping practices.
Baxter's declaration states the Letter was mailed. Osipov complains the declaration provides "no evidentiary facts as to how [Baxter] arrived at that conclusion" because it is missing details regarding "the business practice of how and when a letter is mailed." In particular, Osipov points out that the Correspondence Log itself shows only the Letter's date and content and that there "is nothing in the [Baxter] Declaration . . . about what happens after the letter is created."
"Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations. (Code Civ. Proc., § 437c, subd. (d); Bowden v. Robinson (1977) 67 Cal.App.3d 705, 720.) [¶] The affidavits must cite evidentiary facts, not legal conclusions or 'ultimate' facts." (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-639.) "Affidavits which set forth only conclusions, opinions or ultimate facts are insufficient." (Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446.) When a witness alleges no facts to establish first-hand knowledge of the facts stated in an affidavit, "[t]he affidavit must realistically be viewed as hearsay; it thus fails to create an issue of fact." (Burke v. Hibernia Bank (1960) 186 Cal.App.2d 739, 746.)
Here, the Baxter declaration was plainly based on Baxter's personal knowledge of Capital One's business records, maintained in the regular course of Capital One's business as a loan servicer. We agree with Capital One that the substance of what Baxter learned, from examining its business records regarding the subject loan, was not inadmissible.
Osipov's reliance on Ford v. Cunningham (1890) 87 Cal. 209 and Hughes v. Pacific Wharf etc. Co. (1922) 188 Cal. 210 (Hughes) does not compel us to reach a contrary conclusion. He appears to cite these cases for the proposition that evidence of mailing requires either testimony from an employee with firsthand knowledge the letter was mailed or an employee who can testify to particularized evidentiary facts regarding Capital One's mailing customs. He contends Baxter's declaration shows neither.
In Ford v. Cunningham, supra, 87 Cal. 209, our Supreme Court held, in an opinion light on analysis, the trial court improperly admitted a letter in evidence. (Id. at p. 210.) In that case, the witness stated, "he had no personal knowledge that the communications . . . were mailed, except that copies thereof appeared in the plaintiffs' copy-book, and that it was a general custom of his firm to place letters in a box in the store, from which they were taken to the post-office." (Ibid.) The court held insufficient foundation was laid for the introduction of the evidence. (Ibid.)
In Hughes, our Supreme Court considered a witness who testified to having mailed a letter, but admitted on cross-examination that this testimony was based on his custom, rather than independent recollection. Hughes held "this does not render his evidence unworthy of belief. It only goes to the weight of the evidence." (Hughes, supra, 188 Cal. at p. 224.) Hughes does not support Osipov's argument. If a mailing is sufficiently shown "when a witness states that he mailed the letter to the addressee thereof, and bases such testimony upon his invariable habit of mailing all such letters" (ibid.), we fail to see why Baxter's declaration is inadmissible simply because he was not the employee who mailed the letter. (See People v. Khaled (2010) 186 Cal.App.4th Supp. 1, 8 ["purpose of section 1271 is to eliminate the necessity of calling all witnesses who were involved in a transaction or event"]; People v. Williams (1973) 36 Cal.App.3d 262, 275 [the statute seeks "to eliminate the necessity of calling each witness[, and] [t]he foundation for admitting the record is properly laid if in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission"].)
In any event, we agree with a much more recent analysis of this authority that concluded the older "common law restrictions on the admissibility of business records have been swept away in statutory reform of the law of evidence." (Jenkins v. Tuneup Masters (1987) 190 Cal.App.3d 1, 11.) At common law, it may have been "the rule that habit evidence was inadmissible unless there were no eyewitnesses to the fact sought to be proved" and "that habit testimony of mailing must come from the employee whose habit is relied upon," but such rules have been superseded by the enactment of the Evidence Code. (Id. at p. 13; see id. at pp. 11-13.)
Jenkins v. Tuneup Masters, supra, 190 Cal.App.3d 1, involved a dispute between a tenant and its landlords regarding whether the tenant timely exercised its option to extend a lease. (Id. at p. 4.) The lease required a notice of extension to be sent, six months before the lease's expiration, by certified U.S. mail, return receipt requested. The lease also provided, "Any notice so mailed shall be deemed to have been given as of the time said notice is deposited in the United States Mail." (Ibid.) The notice of extension was lost in the mail, but the tenant's vice president testified regarding his habit for exercising lease extension options, as well as detailed testimony regarding the tenant's customary mailing practices. (Id. at pp. 4, 5-6.) Jenkins held the vice president's detailed testimony was sufficient to establish that notice of extension was properly mailed as required by the lease. (Id. at pp. 11, 13-14.) Neither Jenkins nor the other opinions Osipov cites in his reply brief considered whether less detailed evidence would be insufficient to establish mailing, in a case, like this one, where the only relevant issue is whether the December 2013 Letter was sent to Osipov, before the notice of default was recorded. (See Civ. Code, former § 2923.55, subds. (a)-(b).) Opinions are not authority for propositions not considered. (People v. Avila (2006) 38 Cal.4th 491, 566.)
Osipov has not shown the trial court abused its discretion in overruling his personal knowledge objections.
2. Hearsay Objection to Exhibits
We are likewise unpersuaded by Osipov's hearsay objections to Exhibits C and D. Osipov asserts the "exhibits" were inadmissible because the Baxter declaration failed to make a foundational showing that all the requirements of section 1271 are met.
Arguably, Osipov forfeited any objection to the exhibits themselves by not clearly raising a hearsay objection, in his written objections filed with the trial court, or mentioning section 1271. (See Public Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 376-377, fn. 9 [party waived evidentiary objections by failing to comply with California Rules of Court, rule 3.1354 and instead placing them "in the middle of the points and authorities it offered in support of its motion"]; People v. Dorsey (1974) 43 Cal.App.3d 953, 960 (Dorsey) ["[b]efore an appellate court will give consideration to an objection to evidence, the specific ground for its exclusion must have been clearly stated to the trial court" (italics omitted)]; § 353, subd. (a).)
California Rules of Court, rule 3.1354 governs the form of written objections and provides that they must "be served and filed separately from the [objecting party's] other papers," must clearly identify the precise testimony or item of evidence to which the party objects, and must state the ground for each objection. (Rule 3.1354(b), italics added.) In his separately filed written evidentiary objections, Osipov's counsel argued six of the Baxter declaration's paragraphs were inadmissible under sections 702 [witness's "personal knowledge" requirement] and 1270 [defining "a business" for purposes of business records exception]. These evidentiary objections make no reference to the Baxter declaration's exhibits, nor do they reference the hearsay rule or sections 1200 or 1271. However, elsewhere in his opposition papers, Osipov asserted Capital One failed to establish a foundation for the business records exception. He also argued the Baxter declaration failed to cite any support for his statement the Letter was printed and mailed to Osipov. Thus, the trial court could have refused to consider Osipov's written objections that failed to comply with rule 3.1354. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8.)
Like the trial judge, who specifically addressed all of Osipov's objections despite their improper form, we will proceed to the merits. As best as we can discern, Osipov takes issue with the trial court's consideration of the Letter and the Correspondence Log (Exhibits C and D). " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. . . . [¶] Except as provided by law, hearsay evidence is inadmissible." (§ 1200, subds. (a), (b).) One exception to the hearsay rule is for business records. Section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Even on appeal, Osipov does not explain precisely what evidence was improperly considered by the trial court or include adequately detailed citations to the record to otherwise indicate precisely which rulings he challenges. His briefing refers only to the "exhibits." By failing to adequately identify the challenged rulings, we could deem Osipov to have forfeited his argument on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(C); Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 ["[t]he appellate court is not required to search the record on its own seeking error"]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may disregard any assertion that is unsupported by citations to the record].)
To satisfy foundational requirements for the admission of business records, "there must be some evidence showing that the basic minimal requirements—identifying the records, the mode of their preparation and showing that they were prepared in the regular course of business—have been met." (Gee v. Timineri (1967) 248 Cal.App.2d 139, 147-148; accord, Bufano v. City & County of San Francisco (1965) 233 Cal.App.2d 61, 72.) However, we must be mindful of the trial judge's wide discretion in determining whether a proper foundation has been laid for the admission of business records under section 1271. (People v. Beeler, supra, 9 Cal.4th at p. 978; County of Sonoma v. Grant W., supra, 187 Cal.App.3d at p. 1450.) "Although the trial court is accorded discretion in determining whether evidence sufficient to support the trustworthiness of a business record has been introduced, the court cannot ignore favorable evidence merely because the offering party did not follow the standard or preferred method of laying the foundation for admission." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) In making the foundational finding, the court may rely on evidence of trustworthiness and authenticity contained within the documents themselves. (See Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798.) "[F]oundation requirements may be inferred from the circumstances. Indeed, it is presumed in the preparation of the records not only that the regular course of business is followed but that the books and papers of the business truly reflect the facts set forth in the records brought to court." (Dorsey, supra, 43 Cal.App.3d at p. 961.)
Osipov concedes Baxter's declaration states the records were created in the ordinary course of business, at or near the time of the event recorded, by persons whose job it was to create the records. However, Osipov suggests more is required—that the persons who created the records were required to testify. He cites no authority for this proposition. The authority is to the contrary. (See People v. Beeler, supra, 9 Cal.4th at p. 978; People v. Williams, supra, 36 Cal.App.3d at p. 275.) "Generally, the witness who attempts to lay the foundation is a custodian, but any witness with the requisite firsthand knowledge of the business's recordkeeping procedures may qualify." (People v. Khaled, supra, 186 Cal.App.4th Supp. at p. 8.)
Baxter does not identify himself as a custodian of records for Capital One. This fact, standing alone, is not determinative. For a business record to be admissible under the hearsay exception, the testifying qualified witness need not be the custodian, the person who created the record, or one with personal knowledge of the transaction, so long as there is evidence about the record's mode of preparation and its source of information. (Jazayeri v. Mao, supra, 174 Cal.App.4th at pp. 322, 324; People v. Matthews (1991) 229 Cal.App.3d 930, 940.) "The key to establishing the admissibility of a document made in the regular course of business is proof that the person who wrote the information or provided it had knowledge of the facts from personal observation. [Citations.] . . . The witness need not have been present at every transaction to establish the business records exception; he or she need only be familiar with the procedures followed." (Jazayeri, at p. 322, italics added.) Thus, "any 'qualified witness' who is knowledgeable about the documents may lay the foundation for introduction of business records—the witness need not be the custodian or the person who created the record." (Id. at p. 324.)
We acknowledge the declaration is, to some extent, conclusory when it comes to describing the mode of preparation of, or the sources of information for, either the Letter or the Correspondence Log. We nonetheless conclude the trial court did not abuse its discretion in concluding the Baxter declaration establishes the foundation for the business records exception. (See People v. Lugashi (1988) 205 Cal.App.3d 632, 642 [bank computer records admitted without specific testimony regarding the method of preparation]; Dorsey, supra, 43 Cal.App.3d at p. 960 ["we believe that bank statements prepared in the regular course of banking business and in accordance with banking regulations are in a different category than the ordinary business and financial records of a private enterprise"].)
In relevant part, Baxter declared: "I am an Assistant Vice President for Capital One, N.A., the loan servicer of the mortgage loan that is the subject of this action. . . . I have knowledge of the facts set forth in this declaration based upon the business records pertaining to the above-captioned case, and if called as a witness, I could and would competently testify thereto. [¶] In the course of my employment responsibilities, I have access to the business records of Capital One, including [its] file concerning the loan that is the subject matter of this litigation. [¶] The records of Capital One relating to the subject loan are made in the ordinary course of business by persons whose job it is to make such records, and/or are received by Capital One in the ordinary course of its business. The records were made at or near the time of the occurrence of the events which they record. I have personally reviewed Capital One's records pertaining to the subject loan, including the loan origination, servicing, and foreclosure files. . . . [¶] . . . [¶] As part of its servicing of the Loan, . . . Capital One maintains copies of correspondence sent to [Osipov] and a letter log history file for correspondence sent to [Osipov]. As discussed above, these copies of correspondence and letter log history file are made and kept in the ordinary course of business. [¶] A copy of a letter dated December 20, 2013 that Capital One sent to [Osipov] as indicated in the letter is attached hereto as Exhibit C. [¶] . . . [¶] A copy of the relevant page for Capital One's letter log history file is attached hereto as Exhibit D. The letter log history file indicates that on December 20, 2013, Capital One mailed [Osipov] a letter with identification code of 'XC105/48QA'. . . . "
The Baxter declaration shows Capital One maintained records on Osipov's loan, including origination, servicing, and foreclosure files, which were made in the ordinary course of business, at or near the time of recorded events, by persons whose job it is to make such records. Baxter also specifically stated, "Capital One maintains copies of correspondence sent to [Osipov] and a letter log history file for correspondence sent to [Osipov,]" which are also made and kept in the ordinary course of business. He further states: "The letter log history file indicates that on December 20, 2013, Capital One mailed [Osipov] a letter" matching the identification code shown on the Letter. Mortgage lending and servicing are highly regulated, inferentially requiring maintenance of detailed transactional records with borrowers, and placing them "in a different category than the ordinary business and financial records of a private enterprise." (Dorsey, supra, 43 Cal.App.3d at p. 960; see Estate of O'Connor (2017) 16 Cal.App.5th 159, 170.) Thus, as in Dorsey, foundation requirements "may be inferred from the circumstances," and the nature of the documents before us suggests further testimony concerning their preparation "would not have a bearing on the basic trustworthiness of the records." (Dorsey, at p. 961.)
We do not suggest Dorsey eliminates the requirement that a proponent of bank records establish a proper foundation for their admission. We view Dorsey as holding only that additional circumstantial guarantees of trustworthiness in these circumstances may be reasonably considered by a trial court in determining admissibility.
The trial court did not abuse its discretion in overruling Osipov's hearsay objections to the Letter and the Correspondence Log. Accordingly, we need not decide if the trial court's summary judgment ruling can be affirmed on its alternative basis—that Capital One's 2016 production of the Letter to Osipov's counsel invokes the HBOR's safe harbor provision. (Civ. Code, § 2924.12, subd. (c).) The trial court did not err in granting respondents' motion for summary judgment.
IV. DISPOSITION
The judgment is affirmed. Capital One shall recover its costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.