Banga v. Countrywide Home Loans

Filed 10/16/07 Banga v. Countrywide Home Loans CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Kamlesh Banga (Banga) filed suit against her former mortgage lender Countrywide Home Loans, Inc. (Countrywide), alleging federal and state law claims relating to Countrywides disclosure of allegedly inaccurate information regarding the status of Bangas loan account. The trial court granted Countrywide summary judgment. Banga, who has represented herself throughout these proceedings, asks this court to reverse both the judgment and a post-judgment attorney fee order. We affirm.

II. STATEMENT OF FACTS

The following facts were either admitted by Banga during the summary judgment proceedings or established by undisputed evidence.

A. Bangas Relationship with Countrywide

On May 13, 2002, Banga borrowed approximately $225,000.00 from First Banc Mortgage, Inc., dba First Banc Home Mortgage, Inc. Her first payment of $1496.93 was due on July 1, 2002. Before that date, Bangas loan was assigned to Countrywide. Banga made her July 2002 monthly payment to Countrywide on June 27, 2002.

Countrywide offers its borrowers a payment plan called the PP-52 plan. Under the terms of this plan, Countrywide electronically drafts from the borrowers account one-quarter of the borrowers monthly mortgage payment each week. Each time Countrywide receives a fourth weekly payment for one-quarter the amount of the monthly payment, it credits the borrowers account for a monthly payment. After 48 weekly payments, the borrower will have made one years worth of payments and the additional weekly payments for that year are applied to reduce the loan principal.

On July 18, 2002, Banga signed up for the PP-52 plan and authorized Countrywide to draft from her checking account one-quarter of her monthly payment each Monday.

On July 26, 2002, Countrywide sent Banga a letter regarding her enrollment in the PP-52 plan. This letter set forth several points as reminders including the point that Countrywide must have received your September payment prior to September 2, 2002 in order for your first PayPlan/52 draft to occur. The letter also stated that weekly electronic drafts would be taken from Bangas checking account on September 2, 9, 16 and 23, 2002, and that they would be applied to her mortgage obligation on October 1, 2002 for her October payment. The final sentence of this July 26 letter stated: Remember, your first electronic draft from your account is scheduled to begin September 2, 2002. [1]

Banga made her August 2002 payment on August 12, 2002, which was timely under the terms of her loan. Banga did not make a loan payment to Countrywide in September 2002. In a declaration submitted in opposition to the summary judgment motion, Banga stated: Unfortunately, I oversight [sic] the notice as to how this payment plan would begin and it caused delay in making payment in September of 2002.

Countrywide sent Banga a monthly statement, dated September 27, 2002, which showed that there was a past due amount of $1,496.93, an outstanding late charge of $74.85, and a new payment due on October 1, 2002. This monthly statement contained a Past Due Notice, which included the following statement: Our records show that we have not received your home loan payment that was due on 09/01/2002. If you have not yet mailed your home loan payment, please send it with the attached coupon today. If you have mailed your payment, please disregard this notice. (Emphasis in original.)

The following IMPORTANT NOTICE is set forth at the end of Bangas September 2002 monthly statement: An important note about your good credit. Making your monthly loan payments in full and on time is an obligation of your loan agreement as well as an important part of maintaining your good credit. Failing to do so may result in a negative report being filed with a credit reporting agency, which may make it more difficult for you to get credit approval in the future. Avoid negative credit reports by making your payments on time.

On October 1, 2002, Countrywide sent Banga a letter advising her that her PP-52 plan had been cancelled.

On October 4, 2002, Banga called Countrywide about her September 27, 2002, monthly statement and spoke to a customer service representative. According to her declaration, Banga told the representative that her September payment was supposed to be made electronically and the representative explained to her that, in order for the PP-52 process to start, Banga had to send an extra payment in advance. Banga then admitted to the representative that she had oversight the notice.

During her October 4, 2002, conversation with the Countrywide customer service representative, Banga made her September 2002 payment of $1,496.93 and was not charged a late fee for that late payment. She also made her October 2002 payment at that time. That same day, Countrywide sent Banga a new monthly statement which showed that she had made her September and October payments and that the next payment was due on November 1, 2002.

Marlin Cramer is a senior credit reporting specialist employed by Countrywide. Cramers declarations in support of the summary judgment motion describe Countrywides practice of making monthly reports to credit reporting agencies regarding the status of each of its borrowers accounts for the previous month. Among other things, Countrywide reports the original loan balance, current loan balance, amount of the monthly payment, and status of the loan. The loan status could include current, thirty days late, sixty days late, or foreclosure process started.

Cramers declaration explains that, although Countrywide furnishes credit reporting agencies with its customers account data, it is not a credit reporting agency, does not have access to customers other account histories, and does not prepare or distribute credit reports for any customers. Furthermore, Countrywide does not provide credit agencies with written instructions regarding a customers account status. Rather, Countrywide provide[s] account-level data on the status of its borrowers accounts to credit reporting agencies via a tape data transfer process.

On October 19, 2002, Countrywide furnished credit reporting agencies with information regarding the status of Bangas account as of September 30, 2002. According to Cramers declaration, [a]mong other things, Countrywide reported that the loan was thirty days past due and the amount of the monthly payment was $1,496. Countrywide did not report to credit reporting agencies that Banga had made her payment on October 4, 2002, Cramer explained, because the report consisted of data as of September 30, 2002 only.

In November 2002, Countrywide reported to credit reporting agencies that Bangas October 2002 payment was current. According to Cramer, [t]he fact that Bangas account was brought current on October 4, 2002 when Banga made both the payment due September 1, 2002 and the payment due October 1, 2002 was included in the information Countrywide furnished to credit reporting agencies in November of 2002, which consisted of data on the status of Countrywide customers accounts as of October 31, 2002.

In December 2002, Banga re-enrolled in the PP-52 program. On December 16, Countrywide sent Banga a letter regarding the program which informed her that she must have her January 2003 payment made prior to January 3, 2003, in order for the electronic drafting to commence on January 3, 2003, and that, after the first four one-quarter payments were received, the funds would be applied to her mortgage obligation on February 1, 2003, for her February payment.

On December 18, 2002, Banga called Countrywide and complained to a customer service representative about Countrywides report to credit agencies regarding Bangas overdue September 2002 monthly payment. Countrywide determined that there had been a misunderstanding as to when Bangas PP-52 plan would start and, therefore, according to Marlin Cramer, Countrywide agreed to submit a credit request to delete the derogatory reporting. In his declaration, Cramer stated that, that same day, Countrywide submitted a credit correction request to the major credit reporting agencies with whom it deals.

A printed dispute form documenting Bangas December 18, 2002, complaint was produced as an attachment to Cramers declaration. That form contains the following statement: Delete 30 days made on 9/02 and show current . . . misunderstanding as to when PP26 [sic] started. Cramer also produced a Credit Reporting Dispute form which reflects a requested action to change 9/02 from 30 days to current. According to Cramer, on December 23, 2002, Countrywide received a confirmation that its credit reporting for Banga for September 2002 would be deleted and that the loan would show current for September 2002.

Banga timely made her January 2003 loan payment. Countrywide electronically drafted one-quarter the monthly payment from Bangas account on January 3, January 10, January 17, January 24, and January 31, 2003. Countrywide credited Bangas account pursuant to the terms of the program.

On February 7, 2003, Countrywide drafted $374.25 from Bangas account representing one-quarter of her monthly payment. On February 12, 2003, Bangas bank informed Countrywide that it had stopped payment on the draft. That same day, Countrywide sent Banga a letter stating that it had been unable to debit her account for the February 7, 2003, payment because her bank had put a stop payment on her account for automatic deductions from Countrywide. The letter also notified Banga that Countrywide would cancel her PP-52 plan ten days from the date of this letter. Countrywide drafted another one-quarter monthly payment on February 14, 2003, but Bangas bank again reversed the draft.

Countrywide sent Banga two letters dated February 19, 2003. In one, Countrywide cancelled Bangas participation in the PP-52 program for the stated reason that Countrywide had been unable to automatically draft payments from Bangas account. The second letter informed Banga that, because a number of her checks had been returned for insufficient funds, Countrywide would only accept cashiers checks or money orders for payments for the next twelve months.

Bank of America sent Countrywide a letter dated March 12, 2003, pursuant to which the bank acknowledged that it had recently returned to Countywide an electronic debit issued by Banga and that the debit was returned in error. The bank apologized for the error and asked that Countrywide not let it adversely affect Bangas credit standing.

On March 15, 2003, Banga sent a letter to Countrywide asking that it remove the requirement that her loan payments be made by cashiers check or money order in light of the fact that Bank of America had apologized for returning her automatic draft and that none of her checks had been returned because of insufficient funds. Banga sent another letter to the same effect on April 9, 2003. In February and March 2004, Banga renewed her request that she be permitted to make loan payments on-line or by personal check. It is not clear from the appellate record if or how Countrywide responded to these requests.

Banga paid off her Countrywide loan on October 6, 2004.

B. Bangas Credit Problems

Pursuant to a letter dated November 4, 2002, Bangas application for a Sears credit card was denied. The reasons for the denial were: (1) utilization of available credit; (2) number of open bankcards/national credit cards; and (3) recently opened bank card(s). The denial letter also reflects that Sears relied, in whole or in part on a report obtained from Trans Union Corporation, a consumer credit reporting agency.

Banga obtained a copy of her consumer report from Trans Union. The ten-page report was generated on November 29, 2002. There are three entries in the section regarding accounts which contain information which some creditors may consider to be adverse. The first entry pertains to the Countrywide home loan and states: Status as of 09/2002: 30 days past due. In prior 1 month from last update 1 time 30 days late. The other two entries relate to late payments on then-closed student loan accounts in 1999.

As noted above, on December 18, 2002, Banga called the Countrywide customer service department to complain about the credit report regarding her September 2002 payment.

On December 19, 2002, Trans Union generated another consumer report for Banga. The first page of the report reflects that Trans Union had completed a reinvestigation and, as a result, changed one of the three potentially negative report items, the item relating to the Countrywide home loan. That item now stated: Status as of 11/2002: Paid or paying as agreed. In prior 5 months from date closed 1 time 30 days late.[2]

By letter dated December 19, 2002, First USA Bank informed Banga of its decision to reduce her line of credit on an account she held at First USA. The stated reasons for this decision were: (1) recent delinquency, (2) too many inquiries, and (3) percent of balance to credit limits high. First USA also disclosed that, in making its decision, it had relied in whole or part, on a credit report generated by Experian.

In a letter dated December 23, 2002, Clarendon National Insurance Company notified Banga that her credit card company had declined a request to charge her insurance payment to her credit card. Clarendon advised that Bangas policy could be and may already have been cancelled because of the non-payment.

On December 27, 2002, Experian prepared a 16-page personal credit report for Banga. One of two items identified by Experian as having a potentially negative effect on future credit pertained to the Countrywide home loan. The Status Details for this entry were: Status: Open/Past due 30 days. $1,496 past due as of 9-2002. Account history: 30 days as of 9-2002.

In a letter dated January 6, 2003, WFS Financial Inc. denied Bangas application for a car loan, stating that the main reason(s) for taking this action was recent delinquency. (emphasis omitted) WFS disclosed that its decision was based in whole or part on credit reports generated by Equifax, Trans Union and Experian.

III. PROCEDURAL HISTORY

A. Lower Court Proceedings

Banga initiated this action against Countrywide on December 5, 2003. In an amended complaint filed December 10, 2003 (the complaint), Banga alleged that Countrywide published defamatory credit information that her loan was 30 days late and she still owed one payment in the amount of $1496.00. She also alleged that Countrywide failed to notify her about the alleged problem with her credit before reporting her to various credit reporting agencies, that it failed to investigate the matter once she disputed the debt, and that it failed to take steps to fix the report once the error was proven. Banga alleged that she suffered various consequences as a result of the false report including the denial of a credit card and a competitive car loan, the reduction of her line of credit with her bank and the cancellation of an insurance policy.

Banga alleged violations of the Federal Fair Credit Reporting Act. (15 U.S.C.  1681, et seq.) (the FCRA) and of Californias Consumer Credit Reporting Act (Civ. Code,  1785.1, et seq.) (the CCRA)) and Unfair Business Practices Act (Bus. & Prof. Code,  17200) and also common law claims for defamation, tortious interference with credit expectancy, and intentional infliction of emotional distress. She sought injunctive relief and compensatory and punitive damages.

Countrywide moved for summary judgment on or around July 27, 2005. A hearing was held before the Honorable Paul L. Beeman on October 21, 2005. At the conclusion of the hearing, the court granted both parties leave to submit supplemental briefs and advised them that it would then take the matter under submission.

On January 25, 2006, the court filed an Order after Hearing pursuant to which it granted Countrywides motion for summary judgment. The order states, inter alia: [T]he Court finds that all of Plaintiffs causes of action are based on the contention that Countrywide provided inaccurate information regarding Plaintiffs credit. Yet Countrywide has established as a matter of law that it did not provide any inaccurate information regarding Plaintiffs credit.

A judgment filed on February 24, 2006, states that judgment shall be entered in favor of Countrywide and against Banga on the complaint and each of its causes of action, that Banga shall take nothing by her complaint, and that each of Bangas claims against Countrywide is dismissed. Countrywide shall recover its costs according to proof.

B. Proceedings in the Court of Appeal

On February 14, 2006, before judgment was entered in this case, Banga filed a notice of appeal in the superior court pursuant to which she attempted to appeal the January 25, 2006, Order after Hearing, which she mischaracterized as a post-judgment order. Bangas notice of appeal was lodged with this court on March 27, 2005, and assigned case number A113351. On April 6, 2006, Banga filed a Civil Case Information Statement in which she stated that she is appealing from the February 24, 2006, judgment.

On September 14, 2006, Banga filed an application for an extension of time to file her Appellants Opening Brief (AOB). In her application, Banga stated that she was requesting an extension because, while this appeal was pending, Countrywide had filed a motion for attorney fees and, although the motion had been granted, Bangas motion for reconsideration was scheduled to be heard the week before her AOB was due in this case. This court granted Banga an extension of time to November 30, 2006.

On December 4, 2006, Banga filed a second notice of appeal in the superior court pursuant to which she attempted to appeal a July 27, 2006, order granting Countrywides motion for attorney fees. The notice was lodged with this court on December 13, 2006, and was assigned case number A116098.

On December 8, 2006, Banga filed a second application for an extension of time to file her AOB in case number A113351. Banga sought a 60-day extension on the ground that the record was incomplete because the transcript of the July 27, 2006, hearing on Countrywides attorney fee motion had not yet been prepared.

On December 15, 2006, this court filed an order which granted Banga an extension only until January 17, 2007, to file her AOB, warned that failure to file an AOB by that time would result in dismissal of the appeal and advised that the court did not contemplate granting further extensions. The order further states: The pendency of appellants appeal from the July 27, 2006 post-judgment attorney fee award does not warrant further extensions in this matter because that order is subject to separate appeal (First Appellate District Case No. A116098).

On January 10, 2007, this court filed an order dismissing Bangas appeal in case number A116098 as untimely. In that order, we noted that Banga had filed a motion for reconsideration of the attorney fee order on August 3, 2006, which extended her time to appeal the underlying fee order to November 1, 2006. However, because Banga did not file her notice of appeal until December 4, 2006, her appeal was untimely.

Meanwhile, Countrywide obtained two extensions of time to file its Respondents Brief (RB) in the present case. However, an RB was never actually filed in this court.

IV. DISCUSSION

A. Appealability

As noted above, Banga asks us to reverse both the judgment and the post-judgment attorney fee award. Both of these requests are problematic.

First, Banga appealed from the order granting Countrywides motion for summary judgment which she mischaracterized as an post-judgment order. An order granting a motion for summary judgment is not an appealable order or judgment. [Citations.] (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1816; see also Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7 (Levy) [As numerous published appellate opinions have pointed out, an order granting summary judgment is not an appealable order.].) The appeal must be taken, instead, from a judgment entered on the basis of the summary judgment order. [Citations.] (Levy, supra, 108 Cal.App.4th at p. 761, fn. 7.)

This error by Banga does not, however, require us to dismiss the present appeal. A reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e)(2).) Therefore, we will treat Bangas notice of appeal as referring to the appealable judgment, rather than the nonappealable order granting summary judgment, and as having been filed immediately after the entry of judgment. (See Minor v. Municipal Court (1990) 219 Cal.App.3d 1541, 1546, fn. 2.)

We cannot, however, accommodate Bangas request that we review the post-judgment attorney fees order. An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed. [Citation.] [W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified-in either a single notice of appeal or multiple notices of appeal-in order to be reviewable on appeal. [Citation] (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172, quoting DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)

As discussed above, Banga did separately appeal from the attorney fee order. However, that appeal was dismissed as untimely. The dismissal of her separate appeal does not authorize Banga to pursue her objections to the attorney fee order here. As we have explained, we are willing to construe this appeal as an appeal from the judgment. But that judgment does not award attorney fees to Countrywide. [3] Therefore, we will not address the post judgment attorney fee order.

B. Summary Judgment

1. Standard of Review and Issues on Appeal

A defendant [moving for summary judgment] bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. [Citation.] If the moving party carries that burden, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. [Citation.] On appeal from a summary judgment, we make an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citation.] (Robbins v. Regents of the University of California (2005) 127 Cal.App.4th 653, 660-661.)

As noted in our factual summary, Countrywide elected not to file a respondents brief. The rule we follow in such circumstances is to examine the record on the basis of appellants brief and to reverse only if prejudicial error is found. [Citations.] [Citations.]. (Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1192; see also In re Bryce C. (1995) 12 Cal.4th 226, 232-233.)

2. The FCRA

Banga contends the trial court erred by granting summary judgment with respect to her claim that Countrywide violated a provision of section 1681s-2 of the FCRA which states: A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate. (15 U.S.C.   1681s-2(a)(1)(A).)

As noted above, the trial court granted summary judgment as to this FCRA cause of action on the ground that Countrywide established that the information about Banga that it furnished to credit reporting agencies was accurate. Banga contends she created a triable issue of fact as to the question of accuracy.

According to Banga, the evidence shows that Countrywide reported to credit agencies that, as of October 19, 2002, Banga had not yet made her September mortgage payment. Because Banga had, in fact, made her September payment on October 4, 2002, Banga contends that the record demonstrates that Countrywide made an inaccurate report about her.

We find no evidence in the record to support Bangas factual contention that Countrywide made a credit report that Bangas September payment was still unpaid as of October 19, 2002. Instead, the record shows that, on October 19, 2002, Countrywide credit reported that as of September 30, 2002, Bangas loan was thirty days past due. Thus, while the information was conveyed on October 19, 2002, the information that Countrywide actually reported was that Bangas September payment had not been made as of September 30, 2002. Banga does not dispute that she had not made her September monthly payment as of September 30, 2002.

Banga contends that evidence that, on December 18, 2002, Countrywide directed credit reporting agencies to correct inaccurate information in Bangas credit report demonstrates that, prior to December 18, Bangas credit report was inaccurate. Although not clear, we assume that Banga is arguing that the subsequent correction by Countrywide is essentially an admission that the previous report was inaccurate. We disagree.

We find no evidence that Countrywide ever said or believed that its October 19, 2002, credit reporting was anything but accurate. Countrywide did not, as Banga contends, direct credit reporting agencies to correct inaccurate information about Banga. Rather, in response to Bangas complaint, and its subsequent determination that Banga had made an honest mistake, Countrywide agreed to and did submit a request that the consumer credit agencies delete the derogatory (though accurate) information that Countrywide had provided on October 19, 2002.

Banga separately argues that she produced evidence that Countrywide violated another requirement of section 1681s-2 of the FCRA which applies to companies that regularly furnish information to consumer reporting agencies about their transactions or experiences with a consumer and requires that, if a company determines that a prior report about a consumer was inaccurate or incomplete, it must promptly notify the consumer reporting agency and provide it with the corrected or additional information. (15 U.S.C.  1681s-2(2).)

We find no evidence in the record before us that Countrywide ever made the determination that its October 19, 2002, report was inaccurate or incomplete. Rather, as discussed above, the evidence shows that Countrywide made the decision to submit a credit correction request to the major credit reporting agencies with whom it deals because it determined that Bangas error in failing to make a timely monthly payment resulted from her misunderstanding of how the automatic payment program worked.

Furthermore, Countrywides evidence establishes that its October 19, 2002, report was not inaccurate or incomplete. Countrywide accurately reported that, as of September 30, 2002, Bangas September 2002 payment was overdue. The information provided was not incomplete because the report only covered the period up to September 30, 2002. The following month, when Countrywide provided customer account information to credit agencies for the period from September 30 to October 31, 2002, it did report that Banga had made her September and October payments and that her account was current.

Banga relies on the two consumer credit reports she obtained from Trans Union on November 29, 2002, and December 19, 2002, and the one consumer credit report she obtained from Experian on December 27, 2002. She argues that a comparison of these reports demonstrates that Countrywide did notify and update Trans Union about her September 2002 payment, but that it failed to provide the corrected information to Experian. According to Banga, Countrywide violated the FCRA by failing to update Experian.

There are several problems with this argument. First, as we have already found, the evidence precludes Banga from showing that Countrywide had an obligation to update anyone since it did not make a determination that its previously reported information was inaccurate or incomplete. Second, the record demonstrates that the October 19, 2002, report was not, in fact, inaccurate or incomplete. Finally, assuming Banga could prove that the Experian credit report is, in some way, inaccurate, Banga offers no factual or legal theory upon which to hold Countrywide liable for statements in Experians credit report.

3. The CCRA

Banga contends that summary judgment should not have been granted with respect to her claim that Countrywide violated Civil Code section 1785.26, subdivision (b), a provision of the CCRA, by failing to notify her regarding its negative credit report.

Section 1785.26, subdivision (b) states, in part: A creditor may submit negative credit information concerning a consumer to a consumer credit reporting agency, only if the creditor notifies the consumer affected. The notice required by this statute must be in writing and delivered or mailed to the consumer prior to or within 30 days after the transmission of the negative credit information. (Civ. Code  1785.26, subd. (c).) The notice may be part of a notice of default, billing statement or other correspondence, and may be included as preprinted or standard form language in any of these from the creditor to the consumer. (Civ. Code  1785.26, subd. (c)(1).) The notice is sufficient if it is in substantially the following form: []  As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. (Civ. Code  1785.26, subd. (c)(2).)

Banga contends that she made a prima facie case that Countrywide violated this statue by establishing that Countrywide never gave her notice of its negative credit report regarding Bangas September 2002 payment. The record belies this contention.

As noted in our factual summary, the September 27, 2002, monthly statement contained a notice that Bangas September payment was past due and also included an IMPORTANT NOTICE that expressly notified her that the failure to make monthly loan payments in full and on time may result in a negative report being filed with a credit reporting agency, which may make it more difficult for you to get credit approval in the future. The notice also stated: Avoid negative credit reports by making your payments on time.

On its face, this notice satisfies the requirements of Civil Code section 1785.26. Further, the record establishes that Banga received this notice in the same statement which informed her that her September 2002 monthly payment was overdue prior to October 19, 2002. [4] Therefore, Countrywides evidence precludes Banga from proving her CCRA claim.

In challenging the summary judgment ruling on appeal, Banga has limited her arguments to the FCRA and CCRA claims and, for the reasons stated above, we reject those arguments. Countrywide produced evidence which prevents Banga from proving violations of either of these two statutes and Banga did not respond by identifying or creating any triable issue of material fact. Therefore, summary judgment was properly granted.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] Luz Espino is employed by Countrywide as an assistant manager in payment processing in the electronic payment systems department. Espinos declaration in support of the summary judgment motion states that Countrywide does not keep hard copies of letters that it sends to borrowers but that such documents are stored electronically.

On March 26, 2004, Espino reprinted Countrywides July 26, 2002, letter to Banga along with several other letters Countrywide sent to Banga in connection with this account. Therefore, the document in the record which Espino identified as the July 26, 2002, letter has a printed date of March 26, 2004, with an accompanying note indicating it was originally printed on July 26, 2002.

[2] At that time, Trans Union also provided Banga with a consumer credit score of +495 based on a scale on which the minimum possible score is +150 and the maximum possible score is +934. The factors affecting this score were: (1) too many serious delinquencies, too few satisfactory accounts, an average balance of revolving accounts which was too high and too many active bank card accounts.

[3] If the judgment that was appealed expressly awarded attorney fees but left the amount blank, to be determined later, the judgment may be construed to have subsumed the subsequent order fixing the amount of fees, so that an appeal from the original judgment confers appellate jurisdiction over the later order. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.) In this case, the judgment did not award Countrywide attorney fees.

[4] Although unclear, Banga may also be arguing that Countrywide incurred liability under this statute by failing to notify her, after the fact, that it had made a negative credit report about her. However, this statute expressly provides that the notice may be given prior to or within 30 days after the transmission of the negative Credit information. (Civ. Code,  1785.26, subd. (c).)