Hrg_091718_d6_845am_opposition

Opposition

Cal. Super. - 6th Dist.August 16, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHAPIRO, VAN ESS, SHERMAN & MARTH, LLP Darlene Palaganas Hernandez, Esq. SBN 203050 949 South Coast Drive, Suite 475 Costa Mesa, CA 92626 Tel: (877) 257-0717 Fax: (847) 879-4836 Email: dhernandez(logs.com File No. 18-005960 Attorneys for Defendants, PHH MORTGAGE CORPORATION Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/31/2018 1:16 PM Reviewed By: M. Olaivar Case #18CV333346 Envelope: 1900235 and MORGAN STANLEY PRIVATE BANK, NATIONAL ASSOCIATION SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ERIC MCAFEE, an individual, MARGUERITE MCAFEE, an individual Plaintiffs, Vv. PHH MORTGAGE CORPORATION, a business entity; MORGAN STANLEY PRIVATE BANK NATIONAL ASSOCIATION, a business entity; and Does 1- 50, inclusive, Defendants. Case No.: 18 CV333346 OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION AND REQUEST FOR CONTINUANCE OF HEARING; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: September 17, 2018 Time: 8:45 am. Dept: 6 Complaint filed: August 17, 2018 Trial date: none set TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: I. INTRODUCTION Defendants PHH MORTGAGE CORPORATION (“PHH”) and MORGAN STANLEY PRIVATE BANK NATIONAL ASSOCIATION (“Morgan Stanley”) (collectively, “Defendants™) hereby file this opposition to Plaintiffs ERIC McAFEE and MARGUERITE McAFEE (*“Plaintiffs”)’ Order to Show Cause (“OSC”) re: Preliminary Injunction. Defendant MORGAN STANLEY, is the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 current beneficiary under the Deed of Trust which secures the real property located at 22040 Mount Eden Road, Saratoga, CA 95070 (the “Property”), pursuant to an assignment recorded on December 6, 2017 as Instrument No. 23820716 in the Official Records of Santa Clara County. IL REQUEST FOR CONTINUANCE OF HEARING PURSUANT TO C.C.P. §527(d)(4) On or about August 22, 2018, Defendants’ foreclosure trustee, Aztec Foreclosure Corporation, received a copy of the Order to Show Cause Regarding Preliminary Injunction and Temporary Restraining Order (“TRO”), a true and correct copy of which is attached hereto as Exhibit “A”. The matter was heard and the TRO was granted on August 22, 2018. However, Plaintiffs’ ex parte application and moving papers, including the Complaint, had not been served on PHH and/or Morgan Stanley prior to August 22, 2018. (See Declaration of Darlene P. Hernandez, filed concurrently herewith.) Defendants, therefore, respectfully request that the Court continue the hearing on the OSC re: Preliminary Injunction, to such further date, not less than fifteen (15) days from the date of the hearing, presently set for September 17, 2018, pursuant to C.C.P. §527(d)(4), to enable Defendants to determine the nature of Plaintiff's claims and to sufficiently respond to Plaintiff's Application for Preliminary Injunction. The foreclosure sale has since been postponed to September 20, 2018. If the Court grants the continuance, the temporary restraining order shall remain in effect until the date of the continued hearing. Respectfully submitted, SHAPIRO, VAN ESS, SHERMAN & MARTH, LLP Dated: August 30, 2018 J 4 By: Y/ iy DARLENE P. HERNANDEZ, Attorneys for Defendants PHH MORTGAGE CORPORATION and MORGAN STANLEY PRIVATE BANK, NATIONAL ASSOCIATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DARLENE P. HERNANDEZ I, DARLENE P. HERNANDEZ, hereby declare that: 1. Tam an attorney at law duly authorized to practice before all courts of the State of California and 1 am the attorney of record for Defendants PHH MORTGAGE CORPORATION (“PHH”) and MORGAN STANLEY PRIVATE BANK NATIONAL ASSOCIATION (“Morgan Stanley”) (collectively, “Defendants”). I am the attorney responsible for preparing and trying this matter. If called upon to testify as to the facts set forth in this declaration, I could and would testify thereto since these facts are personally known to me to be true. 2. As the associate attorney assigned to this file, I am ultimately responsible for maintaining, as well as directly supervising the maintenance of the legal and business records and files of this matter. Our office maintains the correspondence, pleadings, discovery, records, communications, and other documents related to this action categorized either physically in folders and files or as electronically imaged documents (which I either personally imaged or personally supervised the imaging process.) At all times, our office has been in physical possession, custody or control of such files and I have no reason to believe that any unauthorized party has had access to them. Our network servers are secure and only allow authorized access. I have personally examined the legal and business records and files of this matter and submit this declaration in support of Defendants’ Opposition to Order to Show Cause re: Preliminary Injunction. 3. On August 27, 2018, Shapiro, Van Ess, Sherman & Marth, LLP, counsel for Defendants, received a copy of Plaintiffs’ Notice of Hearing for the Ex-Parte Application for Temporary Restraining Order (“TRO”) in this matter on August 23, 2018, a true and correct copy of which is attached hereto as Exhibit “A.” 3 OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION Ey OO 0 3 O Y a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. On August 27, 2018, I attempted to contact counsel for Plaintiffs by telephone and email to meet and confer regarding the issues in the Complaint and OSC re: Preliminary Injunction application since Plaintiffs’ moving papers and Complaint were not included with the TRO sent to Aztec Foreclosure Corporation or served on Defendants. 5. On August 27, 2018, Plaintiffs’ counsel sent copies of the Complaint and moving papers for the OSC re Preliminary Injunction via email. 6. On August 29, 2018, I attempted to contact Plaintiffs’ counsel by telephone to discuss the issues raised in the application for preliminary injunction regarding Plaintiffs’ request for additional time to reinstate the loan, but have not yet received a response. Defendants, therefore, respectfully request that the Court continue the hearing on the OSC re: Preliminary Injunction to such further date, not less than fifteen (15) days from the date of the hearing, pursuant to C.C.P. §527(d)(4), to enable Defendants to determine the nature of Plaintiffs’ claims and to sufficiently respond to Plaintiffs’ Application for Preliminary Injunction. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed this 30th day of August, 2018 in Costa Mesa, CA. / Fg [ / J v Darlene Palaganas Hgfnandez, Esq. 4 OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION EXHIBIT A FAX COVER SHEET TO COMPANY FAXNUMBER 16026385748 FROM SarahShapero DATE 2018-08-2221:24:21 GMT RE COVER MESSAGE Property address: 22040 Mount Eden Rd, Saratoga, CA 95070 TS No.: 17-005310-PEHH Enclosed please find an Order granting Plaintiffs’ Temporary Restraining Order enjoining the sale of the above mentioned property. Regards, Sarah Shapero, Esq. SHAPERO LAW FIRM One Market St., Spear Tower, 36th Floor San Francisco, CA 94105 www. shaperolawfirm.com T: (415)293-7995 F: (415)358-4116 CONFIDENTIALITY NOTE: This e-mail and any attachments are confidential and may be protected by legal privilege. If you are not the intended recipient, be aware that any disclosure, copying, distributions or use of this e-mail or any attachment is prohibited. If you have received this e-mail in error, please notify us immediately by returning it to the sender and delete this copy from your system. Thank you for your cooperation. WWW EFAX.COM 2 LJ Sarah Shapero (Bar No. 286748) TLE SHARD LAW FIRM 5 e Market Street, Spear Tower, 36th Floor Sp GAA Birghidess Telephone: (415) 293-799¢ lerk of the Cou Facsimile: (415) 358-4116 Superior al Lo the Co i) ara Attorneys for Plaintiffs, R. ARAGON ERIC MCAFEE MARGUERITE MCAFEE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ERIC MCAFEE, an individual: MARGUERITE | Case No. 28 CV333346 MCAFEE, an individual CL PROPOSED] ORDER TO SHOW Plaintiffs, CAUSE REGARDING PRELIMINARY INJUNCTION; [PROPOSED] Vv. TEMPORARY RESTRAINING ORDER PHH MORTGAGE CORPORATION, a business entity; MORGAN STANLEY Date: August 22, 2018 PRIVATE BANK, NATIONAL Time: 8:30am ASSOCIATION, a business entity; and Does 1- | Dept. 50, inclusive, Defendants. Complaint Filed: August 17, 2018 Trial Date: None Set The application for a Temporary Restraining Order came on before the undersigned on August 22,2018 at _ am./p.m. in Department G of the above-captioned court. Based on the Application, Points and Authorities, and supporting declarations in the moving papers, and good cause having been shown, the Court orders as follows: TEMPORARY RESTRAINING ORDER Pending hearing on the above Order to Show Cause, Defendants, their employees, agents, third parties, or any person or entity acting ‘with them or on their behalf are restrained and enjoined ficm foreclosing on the property located at 2204¢ Mount Eden Rd., Saratoga, CA 95670 until further order by this Court. 1 BRCRGRER ORDER Ln 4 wa NN L n o n ~~ i Dated: Augustid2018 ORDER TO SHOW CAUSE TO DEFENDANTS AND THEIR COUNSEL OF RECORD, You are hereby ordered to . 3 | Fay hg : appear on Site) , 2018 at A 9 Gop. mn Depaibintis of this Court to show cause why an injunction should not be issued enjoining the foreclosure sale of the property located at 28M eit . PS Re Ln eo sbey (A 5B D - This Order , Show Scere and Fona) papers sEall be served on Defendants by ro later than _ a\\g ) (date) by __£ AY eee of service). Proof of shall be filed and served laintiffs by no later than ~ % bea rove magner of service). © PP x Samm, e ad pes 1) Vie Ged ot fax Aeek the Orde to Show Cause is pacing) IT IS SO ORDERED. [PROPOSED] ORDER Oo 0 a y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (C.C.P. §§1013(a) and 2015.5) I, the undersigned, declare: I am over the age of 18 and not a party to the within action. My business address is 949 South Coast Drive, Suite 475, Costa Mesa, CA 92626. On August %) 2018, I served true and correct copies of the following document(s): OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION AND REQUEST FOR CONTINUANCE OF HEARING; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST (Xl) By Regular Mail: I caused copies of such document, enclosed in sealed envelopes, to be deposited in the mail at Costa Mesa, California, with postage thereon fully prepaid to the persons and addresses indicated on the attached service list. I am “readily familiar” with the firm’s practice of collecting and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of any party served, service presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing set forth in this affidavit. (_) By Electronic Service: By electronically transmitting such document(s) in .pdf or other computer readable format, pursuant to C.C.P. §1010.6 and C.R.C., Rule 2.260, from email address: * to the parties (who have agreed to service by electronic mail in this action) and at the email addresses indicated on the attached Service List. No electronic delivery report indicating non-receipt or incomplete transmission was received, or, a read/delivery receipt was received indicating successful transmission to each such party. By Personal Service: I caused such document(s) to be delivered by hand to the above address(es). (_) By Overnight Courier: I caused the above-referenced document(s) to be delivered to a courier service (Federal Express) for delivery the next business day to the above address(es). (__) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted during normal business hours from Fax telephone number(s) (949) 648-5354 to the person(s) and at the Fax telephone number(s) indicated on the attached Service List. A Fax “Transmission Report” confirming successful, error-free transmission was received for each such party. Executed on August ¥018, at Costa Mesa, California. (XI) (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (__) (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction this service was made. = ———— Syed Ali . 5 OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superior Court of California, County of Santa Clara, Case No. 18CV333346 SERVICE LIST Sarah Shapero, Esq. SHAPERO LAW FIRM One Market Street, Spear Tower, 36" Floor San Francisco, CA 94105 (415) 293-7995 telephone (415) 358-4116 fax Attorney for Plaintiffs ERIC MCAFEE and MARGUERITE MCAFEE 6 OPPOSITION TO OSC RE: PRELIMINARY INJUNCTION