Clarey vs. The Bank of New York Mellon

Reply to Opposition

Cal. Super. - 4th Dist.December 21, 2012

© 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo JEFFREY B. GARDNER, ESQ. (BAR NO. 115648) CATHY K. ROBINSON, ESQ. (BAR NO. 226275) ROBINSON, CHAVEZ, GARDNER & KINCANNON A PROFESSIONAL CORPORATION 2100 MAIN STREET, SUITE 330 HUNTINGTON BEACH, CALIFORNIA 92648 PHONE: (949) 851-9111 FAX: (949) 851-3935 ATTORNEYS FOR DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC ELECTRONICALLY FILED Superior Court of California, County of Orange 10/20/2017 at 10:12:00 Awl Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JOHN M. CLAREY, an individual; CHRISTY J. CLAREY, an individual; Plaintiffs, VS. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, a New York Corporation; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware Corporation; COUNTRYWIDE HOME LOANS, INC., a New York Corporation; RECONTRUST COMPANY, N.A., a national association; BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, a subsidiary of Bank of America, N.A.; BAYVIEW LOAN SERVICING, LLC, a Florida limited liability company; all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiffs’ title, or any cloud on Plaintiffs’ title thereto; and DOES 1 through 100, Defendants. Case No: 30-2012-00619854-CU-OR-CJC Unlimited Civil Complaint filed: December 21, 2012 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER Judge: Hon. Deborah C. Servino Hearing: Date: October 27, 2017 Time: 10:00 a.m. Dept. C-21 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo TO ALL INTERESTED PARTIES HEREIN: NOTICE IS HEREBY GIVEN that Defendants BAYVIEW LOAN SERVICING, LLC (“Bayview”) and THE BANK OF NEW YORK MELLONK FKA THE BANK OF NEW YORK (“BONY”) (collectively referred to herein as “Defendants”) hereby replies to the Opposition of Plaintiffs to Defendants’ motion for an order pursuant to California Code of Civil Procedure Section 1987.1 quashing the third party deposition subpoena served by Plaintiffs John M. Clarey and Christy J. Clarey (“Plaintiffs”) on Matthew Sabino (“Sabino”). Defendants’ Motion was made on the ground that Plaintiffs’ subpoena upon Sabino is improper in that they cannot compel Sabino, a non-resident of California, to travel to and appear in San Diego, California for deposition. Additionally, the subpoena sought information that is irrelevant to Plaintiffs’ Declaratory Relief claim, and because Plaintiffs’ prosecution of their Declaratory Relief claim is improper due to the Plaintiffs’ release of their claims against Defendants, and Plaintiffs receipt of $93,486 for said claim. Thus, the subpoena upon Sabino is solely intended to harass Sabino and Defendants, and is oppressive, burdensome and frivolous. I. PLAINTIFFS AND THEIR COUNSEL SHOULD BE SANCTIONED FOR THE COSTS INCURRED BY DEFENDANTS IN BRINGING THIS MOTION Plaintiffs’ argue in their opposition that they have withdrawn their subpoena, and therefore the Motion is Moot. However, prior to filing the Motion to Quash, Defendants attempted to meet and confer with Plaintiffs, to no avail. Thus, Defendants incurred unnecessary fees defending Plaintiffs’ subpoena, which was improperly served upon Sabino. As set forth in the Motion, Plaintiff’s subpoena for the deposition and production of documents by Sabino was improper for the following reasons: (1) Sabino is a non-party nonresident of California, yet the Subpoena noticed Sabino’s deposition in San Diego, California. Plaintiffs cannot compel Sabino, a resident of New York, to appear in San Diego, California for deposition. Cal. C.C.P., Section 1989. 2) Plaintiffs failed to serve Defendants with a copy of the subpoena, and it is unknown what, if any, other subpoenas have been issued by Plaintiffs. This is wholly improper and abusive. 1" 1 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo 3) “4 6) Plaintiffs have released their claims against BONY and BLS via a Settlement Agreement and Release with BANA, wherein Plaintiffs were paid $93,486 in consideration for said release. Thus, Plaintiffs cannot proceed with prosecuting their claims, or propounding discovery, against Defendants. Plaintiffs sought discovery that is irrelevant, oppressive, and burdensome. The only claim that survived appeal is Plaintiff’s Declaratory Relief claim regarding whether $93,000 was improperly included in their loan balance. (A true and correct copy of the Appellate Court opinion was attached as Exhibit “A” to the Robinson Declaration filed with the Motion to Quash). Even if Defendants were not released via the Settlement Agreement, which Defendants contend that they were, Plaintiffs’ Declaratory Relief claim is moot because they were paid $93,486 for the fees that they claim were improperly added onto the subject loan. Despite this, Plaintiffs and their Counsel proceeded with the appeal, as well as oral argument before the Appellate Court — all the while knowing that their Declaratory Relief claim was moot and that they had waived their claims. On June 1, 2017, Defendants sent a written demand that all discovery propounded by Plaintiffs, and the Declaratory Relief claim, be withdrawn. Plaintiffs requested an extension to July 1, 2017 to respond. However, in the interim, Plaintiffs served non-party witness Matthew Sabino (“Sabino”) with a Subpoena to appear in San Diego, California for deposition. (Exhibit “K”). Sabino is a resident of the State of New York, and a non-party to this action. Plaintiffs failed to serve a copy of the Sabino subpoena upon Defendants, and instead Defendants were notified of the Sabino Subpoena from Sabino. On June 13, 2017, Defendants requested that Plaintiffs withdraw the Sabino subpoena. (“Exhibit “L”). Thus, Defendants were required to incur fees and costs to bring the instant Motion. Code of Civil Procedure § 2023.030(a) provides: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both, pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” 2 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo Code of Civil Procedure § 2023.010 provides: “Misuses of the discovery process include, but are not limited to... Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.” Plaintiffs have released their Declaratory Relief claim against Defendants, and have been paid $93,486 in complete satisfaction of said claim. Furthermore, assuming arguendo that their claims are not released, the information sought by Plaintiffs is outside the scope of permissible discovery. Defendants advised Plaintiffs that the Sabino deposition was improper but Plaintiffs refused to withdraw the subpoena. This is a clear misuse of discovery and is subject to sanctions. In fact, after Defendants initial meet and confer attempt with Plaintiffs, Plaintiffs responded by serving Sabino with the Subpoena — which they did not serve upon Defendants! (Robinson Decl., para 17- 19). Luckily Sabino informed Defendants of the subpoena, otherwise Defendants would not have known that Plaintiffs intended to take his deposition. After Sabino advised Defendants that he had been served with a subpoena in this case, Defendants attempted to meet and confer with Plaintiffs again — to no avail — requiring the instant Motion to Quash. (Robinson Decl, para 20-22). Moreover, rather than meet and confer with Defendants, plaintiffs then served a third set of discovery upon Defendants and filed eight premature motions to compel. (Robinson Decl., para 23-26). Ultimately, on August 18, 2017, Plaintiffs’ counsel was sanctioned $2,230.00 in relation to the Motions to Compel — with said sanctions being due within 30 days. Plaintiffs’ counsel has yet to pay said sanctions. It was only after filing the Motion to Quash with the Court, and incurring fees and costs to do so, that Plaintiffs withdrew their subpoena. Therefore, based upon the declaration of Cathy Robinson filed concurrently with the initial Motion to Quash, Defendants seek monetary sanctions from Plaintiffs and their counsel in the amount of $2,100.00. (Robinson Decl, para 30). 1" 1" 1" 1" 3 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo II. CONCLUSION For the reasons set forth herein, Plaintiffs and Plaintiffs’ counsel should be sanctioned $2,100.00 for their abuse of the discovery process, which was clearly intended to harass Defendants and Sabino. ROBINSON, CHAVEZ, GARDNER & KINCANNON A Professional Corporation 7 Jeffrey B. Gardner, Cathy K. aden Ba Attorneys for Defendants THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC Dated: October 20, 2017 By: 4 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 2100 Main Street, Suite 330, Huntington Beach, California 92648. On October 20, 2017, I served the foregoing documents described as DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER on the interested parties in this action by placing the original thereof enclosed in a sealed envelope addressed as follows: Attorneys for Plaintiffs Brian C. Andrews, Esq. James E. Pilley, Esq. Andrews Law Group 6496 Weathers Place, Suite 200 San Diego, CA 92121 [X] BY OVERNIGHT MAIL VIA GOLDEN STATE OVERNIGHT DELIVERY SERVICE PURSUANT TO C.C.P. §1013(c): I caused such envelopes with postage thereon fully prepaid to be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for at the address as last given by that person on any document filed in the cause and served on the party making service. [X] STATE: Ideclare under penalty of perjury under the laws of the State of California that the above is true and correct. 5 DEFENDANTS THE BANK OF NEW YORK MELLON AND BAYVIEW LOAN SERVICING, LLC’S REPLY TO OPPOSITION TO NOTICE OF MOTION AND MOTION TO: (1) QUASH THIRD PARTY SUBPOENA, (2) STAY THIRD PARTY DEPOSITIONS, AND (3) FOR MONETARY SANCTIONS AGAINST PLAINTIFSS AND PLAINTIFFS’ COUNSEL; OR IN THE ALTERNATIVE, MOTION FOR PROTECTIVE ORDER