CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANGELICA CHAVEZ,
Plaintiff and Appellant,
v.
INDYMAC MORTGAGE SERVICES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Lorna Alksne, Judge. Reversed.
EXCERPT:
II. Analysis
A. Breach of Contract 9
Under Defendants’ proposed reading of the Modification Agreement, Chavez could do everything required of her to be entitled to a permanent modification, but Defendants could avoid the contract by refusing to send Chavez a signed copy of the Modification Agreement for any reason whatsoever. We reject this interpretation as we must determine the objective intent of the parties based on reading the Modification Agreement as a whole. (Civ. Code, § 1641 [“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”].) Here, the language of the Trial Period Plan and the Modification Agreement taken together suggest Defendants concluded that Chavez qualified for a permanent modification when it sent her the Modification Agreement, and assuming Chavez’s representations continued to be true and all preconditions to modifications have been satisfied, that Chavez’s original loan documents would automatically be modified on the date stated in the Modification Agreement. (Civ. Code, 10 § 1642 [“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.”].)
. . .
12 Although Chavez has not alleged that Defendants were unjustly enriched, discovery may show unjust enrichment. (See generally, Diane E. Thompson, Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications (2011) 86 Wash. L.Rev. 755, 777 [Noting that servicers can make more money from foreclosing than from modifying and “the true sweet spot lies in stretching out a delinquency without either a modification or a foreclosure.”].)
. . .
13
B. Wrongful Foreclosure
Chavez argues that she alleged a valid claim for breach of the Modification Agreement and she was not required to allege tender. We agree.
14
As discussed above, Chavez properly alleged a cause of action for breach of the Modification Agreement. Under the terms of the Modification Agreement, all late charges were waived and the modified principal balance included any past due amounts and arrearages. Chavez alleged the existence of an enforceable agreement to modify her loan and the payment of all sums due under that agreement until Defendants allegedly breached the agreement by failing to accept her payment. Chavez sufficiently alleged an exception to the tender rule that the foreclosure sale was void because Defendants lacked a contractual basis to exercise the power of sale as Chavez’s original loan had been modified under the Modification Agreement and Chavez fully performed under the Modification Agreement until Defendants breached the agreement by refusing payment.
. . .
Nothing in this opinion prohibits Chavez from seeking leave to amend to add new allegations, assert alternative theories of recovery or add new theories of liability. 16 DISPOSITION The judgment is reversed. Plaintiff is entitled to recover her costs on appeal.
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