Anthony Montero vs Ocwen Loan Servicing, LLC, et al.

Objection Objection to Plaintiffs Belated Opposition to Demurrer

Cal. Super. - 2nd Dist.October 9, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 01/31/2019 10:33 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Inloes,Deputy Clerk 1 || WRIGHT, FINLAY & ZAK, LLP Jonathan D. Fink, SBN 110615 2 || Lukasz I. Wozniak, SBN 246329 3 4665 MacArthur Court, Suite 200 Newport Beach, CA 92660 4 || Tel: (949) 477-5050; Fax: (949) 608-9142 s Email: Iwozniak@wrightlegal.net 6 || Attorneys for Defendants, Ocwen Loan Servicing, LLC; U.S. Bank National Association, as Trustee for GreenPoint 7 || Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-AR2; and Mortgage 9 Electronic Registration Systems, Inc. 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 12 || ANTHONY MONTERO, Case No.: 18VECV00017 13 Plaintiff, OBJECTION TO PLAINTIFFS’ 14 BELATED OPPOSITION TO Vs. DEMURRER 15 OCWEN LOAN SERVICING, LLC; U.S. DATE: February 5, 2019 16 || BANK NATIONAL ASSOCIATION, as TIME: 8:30 a.m. 17 TRUSTEE for GREENPOINT DEPT.: A MORTGAGE FUNDING TRUST 18 [| MORTGAGE PASS-THROUGH Reservation No. 181112364899 CERTIFICATES, SERIES 2007-AR2; AND 19 || MORTGAGE ELECTRONIC 20 REGISTRATION SYSTEMS, INC.; THE MORTGAGE LAW FIRM, PLC; and 21 [| DOES 1 Through 20, inclusive, 22 Defendants. 23 24 Defendants Ocwen Loan Servicing, LLC, U.S. Bank National Association, as Trustee 25 for GreenPoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-AR2, 2% and Mortgage Electronic Registration Systems, Inc. (“Defendants”) hereby Object to plaintiff 27 Anthony Montero’s (“Plaintiff”) Belated Opposition to Demurrer to the Complaint as follows: 28 1 OBJECTION TO OPPOSITION TO DEMURRER TO PLAINTIFF’S COMPLAINT OO 0 3 O Y wn Bx W N = D R D N D N N N N RN ) = e s em e m em e m em em p m © NN nh BR W R N = O Y W O N N D R W R N =m o o Pursuant to Code of Civil Procedure § 1005(b), opposition papers must be served to the demurring party and filed with the court at least nine (9) court days before the hearing. Further, opposition papers must be served in a manner "reasonably calculated" to ensure delivery not later than the close of the next business day after filing. Code Civ. Proc. § 1005(c). “A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App.4th 755, 765 [also explaining that: “[w]e cannot find any reason to conclude the trial court abused its discretion. Defendants followed all the rules and were entitled to expect the trial court to enforce them. Plaintiff did not invoke any of the available procedures to obtain a court order permitting her to file late papers.” Id.] Similarly, in Rancho Mirage Country Club Homeowners Ass'n v. Hazelbaker (2016) 2 Cal. App.5th 252, the court affirmed the trial court’s decision refusing to consider the defendant’s belated opposition to motion for attorney’s fees, explaining that the trial court properly exercised its discretion under CRC 2.1300(d) because “Defendants made no attempt to seek leave to file their opposition late, and made no attempt to demonstrate good cause for having failed to adhere to the applicable deadline.” Id. at 241. Just as in Bozzi and Rancho Mirage, Defendants here have timely filed and served their Demurrer to Plaintiff on November 13, 2018, giving Plaintiff two-and-a-half months’ notice to prepare, file, and serve his Opposition, which was due on or before January 23, 2019. Plaintiff failed to do so, offered no good cause explanation for his failure, and did not seek leave to file a belated Opposition. Instead, he intentionally chose to file his Opposition five (5) days late, on January 28, 2019, and to provide a copy thereof on the date Defendants’ Reply was due - January 29, 2019." Plaintiffs intentional failure to timely file and serve an Opposition to the Demurrer has prejudiced Defendants by depriving them of the statutory time within which they were entitled to properly review and respond to Plaintiff’s substantive arguments, forcing them to rush this response in order to present it to the Court for consideration before the hearing. ! Plaintiff's Proof of Service, which shows service on January 24, 2019, is blatantly false, as the Opposition was only signed by the counsel on January 28, 2019 and thus could not have been served four days prior it was written. 2 OBJECTION TO OPPOSITION TO DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 J O N nv B O W N N N N N N N N N R m em em e m e m em em © N A Ln B R A W N = O WV N O N DR W N = © Accordingly, just as the court in Bozzi, Defendants respectfully request that the Court exercise its discretion under CRC 3.1300(d) and refuse to consider Plaintiff’s belated Opposition that has been filed by Plaintiff, as well as any oral arguments that will potentially be raised by Plaintiff at the February 5, 2019 hearing. Alternatively, in the event that the Court is willing to consider Plaintiffs belated arguments, Defendants respectfully request that the Court consider Defendants’ belated Reply to these arguments which is filed concurrently herewith. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP 4 Dated: January 31,2019 By: ~~ Lukasz L Wozniak, Esq., SBN 246329. 4665 MacArthur Court, Suite 200 ) Newport Beach, CA 92660 Attorneys for Defendants, Ocwen Loan Servicing, LLC; U.S. Bank National Association, as Trustee for GreenPoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-AR2; and Mortgage Electronic Registration Systems, Inc. 3 OBJECTION TO OPPOSITION TO DEMURRER TO PLAINTIFE’S COMPLAINT BH W N ~N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Steven E. Bennett, declare as follows: I am employed in the County of Orange, State of California. I am 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 January 31, 2019, I served the within OBJECTION TO PLAINTIFFS’ BELATED OPPOSITION TO DEMURRER on all interested parties in this action as follows: [] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Clifford B. Scherer, Esq. Law Offices of Clifford B. Scherer 800 Sunrise Ave., Ste. A Roseville, CA 95661 Tel: (916) 298-7390 Email: cliffscherer@clikffordschererlaw.com Attorney for Plaintiff Anthony Montero Jonathan J. Damen, Esq. Zieve, Brodnax & Steele, LLP 30 Corporate Park, Ste. 450 Irvine, CA 92606 Tel: (714) 848-7920 Email: jdamen@zbslaw.com [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. [X] (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9142, 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 ELECTRONIC MAIL) To the following e-mail: 1 PROOF OF SERVICE OO © 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 97 28 [1 [1 [X] (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/ECF 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.” (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on January 31, 2019, at Newport Beach, California. ALE Steven E. Bennett 2 PROOF OF SERVICE TRANSMISSION VERIFICATION REPORT TIME NAME FAX TEL SER. # : Al/31/26819 11:86 : WRIGHT FINLAY ZAK 9434773280 943 BROF5J5686874 DATE, TIME FAX NO. /NAME DURATION PAGE(S) RESULT MODE g1/31 18:89 171464867658 Po: v6: 21 28 OK STANDARD ECM TRANSMISSION VERIFICATION REPORT TIME NAME FAX TEL SER. # : A1/31/2819 11:17 : WRIGHT FINLAY ZAK 94947792886 949 BROF5J568874 DATE, TIME FAX NO. /NAME DURATION PAGE (S) RESULT CHECK READABILITY OF TRANSMITTED PAGE(S) 19 MODE @1/31 11:18 19166446658 pB:87:36 20 OK STANDARD