Answer of Defendants Dlj Mortgage And Select Portfolio Servicing Inc

Response

Cal. Super. - 6th Dist.March 13, 2018

OO 00 9 O N Wn BA W N = N O N N D R N N N N N ke e m e d e s be m p e d pe ed he d e d cL NN A N nn BA W N = O VO N Y N R W NY = O ELECTRONICALLY FILED Superior Court of California County of Santa Cruz 9/12/2018 12:50 PM Alex Calvo, Clerk WRIGHT, FINLAY & ZAK, LLP BY, Reclapsalsedo, Deputy Gwen H. Ribar, Esq. (SBN 121592) gribar@wrightlegal.net Olivier J. Labarre, Esq. (SBN 188024) olabarre@wrightlegal.net 4665 MacArthur Court, Suite 280 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 Attorneys for Defendants, DLJ Mortgage Capital, Inc., and Select Portfolio Servicing, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ STERLING CAPITAL PARTNERS, a Case No.: 18CV01271 California Limited Liability Company, Assigned For All Purposes To: Plaintiff, Hon. Paul Burdick VS. Dept. 5 NEW PENN FINANCIAL, dba Shellpoint Mortgage Servicing, a Delaware Limited ANSWER OF DEFENDANTS DLJ Liability Company, registered in California; MORTGAGE AND SELECT PORTFOLIO Wells Fargo Bank, N.A.; DLJ Mortgage SERVICING, INC. Capital, Inc., a Delaware corporation; Select Portfolio Servicing, Inc., a Utah corporation; and DOES 1 - 15, inclusive, Complaint filed: =~ March 24, 2017 Defendants. Trial Date: Not yet assigned Defendants DLJ Mortgage Capital, Inc. and Select Portfolio Servicing, Inc. (“Defendants”), hereby responds to the Complaint as follows: GENERAL DENIAL Pursuant to section 431.30, subdivision (d), of the Code of Civil Procedure, Defendants deny each and every material allegation of Plaintiff's Complaint. Defendants further dent that Plaintiff was damaged in the manner or sum alleged in this Complaint, or in any manner or in any sum, or at all, as the result of any action or omission, if any, of Defendants, either individually or through the actions or 1 ANSWER Oo 0 NN O N BR W N N N N N D N D N N N N rm e m em pe p e d pe d e d p a pe 00 N A Un BR W R N = O Y NN O Y RE W N = O omissions of its agents, servants or employees. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) As a first affirmative defense, Defendants allege that the Plaintiff has failed to state facts sufficient to constitute any cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Failure to Establish Elements) As a second affirmative defense, Plaintiff’s claims are barred because they cannot establish all of the elements to their causes of action. THIRD AFFIRMATIVE DEFENSE (Defendants Acted in Good Faith) As a third affirmative defense, Defendants alleges that they are excused from any and all liability under the facts alleged in the Complaint because at all material times Defendants acted in good faith, free from any unlawful, unfair or fraudulent business acts, free from any unfair, deceptive, untrue or misleading advertising, and conducted all material transactions in good faith and in accordance with the law. FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) As a fourth affirmative defense, Defendants allege that Plaintiff's claims are barred by applicable statute of limitations, including but not limited to, Sections 337, 338, 339, 340, 341, and 343 of the Code of Civil Procedure. FIFTH AFFIRMATIVE DEFENSE (Equitable Defenses) As a fifth affirmative defense, Defendants allege that Plaintiff’s claims are barred by the equitable doctrine of laches, unclean hands, and failure to do equity. 1 1 2 ANSWER Oo 0 0 3 O Y Wn BR W N BN O N D D N N N N N N R e e k p d e m p e pe pe d pe d e m ee 00 NN O Y nn A W N = O Y N Y R W = O SIXTH AFFIRMATIVE DEFENSE (Waiver and Estoppel) As a sixth affirmative defense, Defendants allege that by reason of Plaintiff’s own acts and omissions, Plaintiffs waived their rights and are estopped to assert the claims they have asserted against the Defendant. SEVENTH AFFIRMATIVE DEFENSE (No Damages) As a seventh affirmative defense, Defendants allege that even if Plaintiff's other allegations are true, the Plaintiffs did not suffer any damages (economic loss). EIGHTH AFFIRMATIVE DEFENSE (Comparative Fault) As an eighth affirmative defense, Defendants allege that Plaintiff was at fault when it conducted its affairs relative to the incident described in the Complaint and that such fault caused or contributed to the damages complained of. NINTH AFFIRMATIVE DEFENSE (Consent, Ratification) As a ninth affirmative defense, Defendants allege that Plaintiff waived and is estopped from asserting any claim or claims against Defendants, in that Plaintiff’s consented or is deemed to have consented to or have otherwise ratified all of the alleged conduct complained of in the Complaint. TENTH AFFIRMATIVE DEFENSE (Comparative Fault of Third Parties) As a tenth affirmative defense, Defendants alleges that individuals or entities other than these Defendants contributed to the damages Plaintiff claims to have suffered and therefore any award made in favor of the Plaintiff in this case must be reduced by an amount equal to the percentage of the fault of others in causing or contributing to the damages as alleged in the Complaint. ELEVENTH AFFIRMATIVE DEFENSE (No Proximate Cause) As an eleventh affirmative defense, Defendants alleges that the alleged acts and omissions of 3 ANSWER OW 0 3 & Wn BA W N N O N D N D N N N N N N em e k e m em ee em pe d ee d e d 00 3 O N nn BA W N O O S B W NY = O Defendants in the Complaint were not a proximate cause of the loss or damage for which Plaintiff seeks recovery. TWELFTH AFFIRMATIVE DEFENSE (No Duty) As a twelfth affirmative defense, Defendants allege they owed no duty to Plaintiff as alleged in the Complaint. THIRTEENTH AFFIRMATIVE DEFENSE (No Breach) As a thirteenth affirmative defense, Defendants allege there was no breach of duty as alleged in the Complaint. FOURTEENTH AFFIRMATIVE DEFENSE (Insufficient Particularity) As a fourteenth affirmative defense, the Complaint does not describe the claims against Defendants with sufficient particularity and certainty to enable Defendants to determine what defenses may exist. Defendants reserve the right to assert all defenses that may be pertinent to or arise from Plaintiff’s claims against it when the precise nature of those claims has been ascertained. WHEREFORE, Defendant prays for judgment as follows: 1 That Plaintiff takes nothing by reason of its Complaint on file herein; 2. For costs of suit incurred herein; and &; For such other and further relief as the court may deem just and proper. Respectfully Submitted, WRIGHT, FINLAY & Z Dated: September 11, 2018 By: / Gwen H. Ribar, Esq. \L Olivier J. Labarre, Esq. Attorneys for Defendants, DLJ Mortgage Capital, Inc., and Select Portfolio Servicing, Inc. 4 ANSWER A W N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 ad 24 25 26 27 28 PROOF OF SERVICE I, Kimberly A. Walsh, declare as follows: I am employed in the County of Orange, State of California. Iam over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On September 12, 2018, I served the within ANSWER OF DEFENDANTS DLJ MORTGAGE AND SELECT PORTFOLIO SERVICING, INC. on all interested parties in this action as follows: [X] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Thornton Davidson, Esq. Thornton Davidson, P.C. 3451 W. Shaw Avenue, Suite 105 Fresno, CA 93711 Tel: (559) 476-5064; Fax: (559) 421-0368 Attorneys for Plaintiff, Sterling Capital Partners, LLC [X] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [] (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Return Receipt Requested. [] (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. [] (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. [] (BY FEDERAL EXPRESS OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Federal Express Overnight with the delivery fees provided for. [] (CMV/ECEF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed R.Civ.P.5(b)(2)(E). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” 1 PROOF OF SERVICE OO 0 a9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [X] (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on September 12, 2018, at Newport Beach, California. Yo (Date Kimberly A. Walsh 2 PROOF OF SERVICE