Gerald David Moushey vs. America'S Servicing CompanyReply to MotionCal. Super. - 4th Dist.December 21, 2016 1 Jeffrey S. Gerardo #146508 Steven M. Dailey #163857 2 Rebecca L. Wilson #257613 KUTAK ROCK LLP 3 Suite 1500 5 Park Plaza 4 Irvine, CA 92614-8595 Telephone: (949) 417-0999 5 Facsimile: (949) 417-5394 Email; jeffrey.gerardo@kutakrock.com Email: steven.dailey@kutakrock.com Attorneys for Defendants WELLS FARGO BANK, N.A. DBA AMERICA’S 8 SERVICING COMPANY [erroneously sued as “AMERICA’S SERVICING COMPANY] and 9 BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER 10 TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE 11 TRUST AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 12 2004-7 [erroneously sued as “BANK OF AMERICA, N.A.”] 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF ORANGE -- CENTRAL JUSTICE CENTER 15 16 GERALD DAVID MOUSHEY, an Case No. 30-2016-00893738-CU-OR-CJC Individual, JUDGE: Hon. Geoffrey T. Glass 17 Plain DEPT: C32 aintiff, 18 REPLY IN SUPPORT OF DEMURRER TO Vs. PLAINTIFF’S SECOND AMENDED 19 COMPLAINT AMERICA’S SERVICING COMPANY; 20 BANK OF AMERICA, N.A., a National Filed concurrently with Reply in Support of Association; QUALITY LOAN SERVICE Motion to Strike 1 CORPORATION, a California Corporation; and DOES 1 through 100, Date: September 18, 2017 2 inclusive, Time: 1:30 p.m. Dept: C32 23 Defendants. Date filed: December 21, 2016 24 Trial date: None set 25 Defendants WELLS FARGO BANK, N.A. DBA AMERICA’S SERVICING COMPANY 26 and BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO 27 LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE TRUST 28 AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES KUTAK ROCK LLP 4837-4463-2655.1 -1- ATTORNEYS AT LAW fRvine REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT © 3 A \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTAak Rock LLP ATTORNEYS AT Law IRVINE 2004-7, [collectively “Lender Defendants™], hereby submit their Reply in Support of Demurrer to Plaintiff's Second Amended Complaint [“SAC”]. 1. INTRODUCTION/RELEVANT FACTS. The crux of the SAC is an attack on authority to foreclose and an alleged lack of a recorded substitution of trustee. The subject Deed of Trust was recorded on April 9, 2004. [Second Amended Complaint (“SAC”), Ex. “A”; Request for Judicial Notice (“RIN”), Ex. “A”.] This Deed of Trust is the security instrument in connection with Plaintiff's Loan for $275,000, which is the pertinent Loan for purposes of this lawsuit. For the Court’s convenience, the facts regarding the recorded documents and chain of title stemming from the April 9, 2004 first position Deed of Trust are repeated below. On March 29, 2012, a Corporate Assignment of the Deed of Trust was recorded reflecting MERS assigned the Deed of Trust to Bank of America National Association as Successor by Merger to LaSalle Bank National Association, as Trustee under the Trust Agreement for the Structured Asset Investment Loan Trust Series 2004-7 (“BOA”). [RIN, Ex. “B”.] On July 2, 2012, a Substitution of Trustee was recorded reflecting Quality Loan Service Corporation was substituted as the new trustee under the Deed of Trust. [RIN, Ex. “C”.] On September 18, 2015, a Notice of Default was recorded on the Property. [RIN, Ex. “G”,] On December 30, 2014, a Notice of Trustee’s Sale was recorded. [SAC, Ex. “F”.] On January 29, 2016, a Trustee’s Deed Upon Sale was recorded. [SAC, Ex. “G”.] The Trustee’s Deed Upon Sale reflects the Property sold to 20342 Laguna Canyon Road Trust, G.R.E. Development Inc. as Trustee, at a foreclosure sale on January 15, 2016, 2. PLAINTIFF’S OPPOSITION DOES NOT REFUTE LENDER DEFENDANTS’ ARGUMENT RE FAILURE TO NAME AN INDISPENSABLE PARTY. As argued in the Demurrer to the SAC, Plaintiff failed to name an indispensable party, the third-party purchaser. [Demurrer, Page 4, Line 11 - Page 5, Line 18.] In his Opposition, Plaintiff argues that the third-party purchaser is not an indispensable party because it “would not be bound by a court Order.” [Opposition, Page 5, Lines 4-10.] This is exactly why Plaintiff’s failure to 4837-4463-2655.1 -2- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTtak Rock LLP ATTORNEYS AT Law IRVINE name the third-party purchaser poses a problem. Through his claim for violation of California Business & Professions Code section 17200, Plaintiff seeks restitution. [SAC, § 62.] However,a private litigant who brings a Section 17200 claim motivated by his own personal interest is not entitled to money damages. [America Online, Inc. v. Sup. Ct. of Alameda County (2001) 90 Cal.App. 4" 1, 16.] Therefore, the restitution would have to come from an unwinding of the sale to the third-party purchaser. The third party purchaser is, therefore, an indispensable party to this lawsuit given the relief requested by Plaintiff. “A person who is subject to service of process. . shall be joined as a party in the action if... he claims an interest relating to the subject ofthe action ....7 [Code Civ. Proc., § 389(a).] In this case, on January 29, 2016, a Trustee’s Deed Upon Sale was recorded reflecting the Property sold to 20342 Laguna Canyon Road Trust, G.R.W. Development Inc. as Trustee [“GRW?™], at a foreclosure sale on January 15, 2016. [SAC, Ex. “G”.] If Plaintiff were to obtain the relief requested, GRW’s rights would necessarily be affected. Accordingly, it is an indispensable party and the failure to join it merits dismissal, In his Opposition brief, Plaintiff stated “should this Court feel that the [third-party purchaser] should be joined...that [Plaintiff] be granted leave to amend his Second Amended Complaint.” [Opposition, Page 5, Lines 10 - 12.] However, leave to amend should be denied because this point, i.e., the fact that Plaintiff failed to name an indispensable party, was raised before, in the Demurrer to the original Complaint and in the Demurrer to the First Amended Complaint - Plaintiff and/or his counsel are clearly aware of this issue and opted not to name the third-party purchaser in the SAC. [RIN, Exs. “K” and “L.”.] 3. PLAINTIFE’S OPPOSITION DOES NOT DISPEL LENDER DEFENDANTS’ RES JUDICATA ARGUMENT. In his Opposition, Plaintiff argues that this lawsuit is not barred by the principal of res judicata because he asserted different claims based on different allegations in his earlier lawsuit [Moushey I] than the claims and allegations he asserted in the current lawsuit. [Opposition, Page 6, Lines 13-23.] However, both lawsuits by Plaintiff are against the same Defendants regarding the same loan, the same property, and for the purpose of challenging the same foreclosure. Plaintiff filed Moushey I on February 16, 2016 relating to the foreclosure of the same Property at 4837-4463-2655.1 -3- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT O O 0 N N A N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTAK Rock LLP ATTORNEYS AT LAW IRVINE issue here, and issues regarding the same secured loan. [Moushey I Complaint, RIN, Ex. “H”.] In Moushey 1, Plaintiff alleged causes of action for violations of Civil Code section 2923.6, 2923.7, Business and Professions Code sections 17200 ef seq., promissory estoppel, negligence, and declaratory relief. [RIN, Ex. “H”.] Plaintiff claimed there was some impropriety in the loan modification application process. [RIN, Ex. “H”, pars. 17-32.] Plaintiff also alleged “Defendants” failed to properly send or post a notice of the trustee’s sale. [RIN, Ex. “H”, pars. 48-49.] On June 7, 2016, the Court sustained WELLS FARGO’s Demurrer to the Complaint and Judgment was entered on September 30, 2016. [RIN, Exs, “I,” “J”.] Plaintiff cannot ignore the earlier Judgment and re-plead an attack on the foreclosure proceeding following his default under the same loan.! This second action, while asserting a somewhat different basis for an attack on authority to foreclose, stems from the same primary rights as in Moushey I. As set forth more fully in the Demurrer, America’s Servicing Company is not a separate company from Wells Fargo Bank, N.A. [Demurrer, Page 6, Lines 3-10.] Moreover, Plaintiff’s SAC reflects that Wells Fargo Bank, N.A. and America’s Servicing Company are one and the same. As set forth in the Demurrer, whether the prior proceeding and the present proceeding involve the same cause of action is determined under the “primary right theory” and that “when there is only one primary right an adverse judgment in the first suit is a bar even though the second suit is based on a different theory.” [Demurrer, Page 5, Lines 14-17.] Plaintiff’s current lawsuit stems from the same primary rights as in the first lawsuit (challenging foreclosure) between the same parties, because the current lawsuit is a second attempt to challenge the legitimacy of the foreclosure sale,i.c., an expression of the same “primary right”. 4. PLAINTIFF DOES NOT SATISFY THE REQUIREMENTS FOR AN EXCEPTION TO THE TENDER RULE. Relying upon the case Lona v. Citibank, N.A. (2011) 202 Cal.App.4™ 89, 112-133, Plaintiff argues in his Opposition that tender is not required because he is attacking the Trustee’s !' In sustaining Lender Defendants’ Demurrer to Plaintiff's First Amended Complaint, this Court permitted Lender Defendant to raise the argument of res judicata to Plaintiff's SAC. [RIN, Ex. “L™.] © 4837-4463-2655.1 -4 - REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT o e 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTak ROCK LLP ATTORNEYS AT LAW IRVINE Deed Upon Sale as “void on its face” due to allegations of defect in notice of the Substitution of Trustee. [Opposition, Page 7, Lines 2-21.] However, the rationale existing in Lona for finding tender was not required and does not exist here. In Lona, the plaintiff had alleged facts to demonstrate that the underlying loan contract itself was unconscionable, rendering the underlying deed of trust void. [Lona, at 2112-133.] However, here, Plaintiff has presented no factual allegations to support an exception to the tender requirement -- his conclusory statement that the Substitution of Trustee is flawed is just that - a conclusory statement. Contrary to Plaintiff’s allegations, the recorded documents submitted by Lender Defendants with their Request for Judicial Notice show a clear chain oftitle in this case and that all of the requisite foreclosure notices were provided; the Substitution of Trustee does in fact identify the trustor’s name, and it was in fact recorded. [RJIN, Ex. “C.”] Plaintiff obtained the subject loan secured by a Deed of Trust recorded on the Property on August 31, 2005. [RIN, Ex. “A”.] Plaintiff admits he defaulted on that loan, and nowhere is there any allegation that the loan was “unconscionable.” [SAC, par. 15.] On March 29, 2012, a Corporate Assignment of Deed of Trust was recorded reflecting MERS assigned the Deed of Trust to BOA. [RIN, Ex. “B”.] On July 2, 2012, a Substitution of Trustee was recorded on the Property, reflecting Quality Loan [SAC,par. 26 and Ex. “F”.] On September 18, 2015, a Notice of Default was recorded on the Property. [RIN, Ex. “G”.] On December 30, 2014, a Notice of Trustee’s Sale was recorded. [SAC, Ex. “F”.] On January 29, 2016, a Trustee’s Deed Upon Sale was recorded. [SAC, Ex. “G”.] The Trustee’s Deed Upon Sale reflects the Property sold to 20342 Laguna Canyon Road Trust, G.R.E. Development Inc. as Trustee, at a foreclosure sale on January 15, 2016. [SAC, Ex. “G”,] While Plaintiff argues in his Opposition that tender is not required because he is attacking the Trustee’s Deed Upon Sale as “void on its face”, for purposes of demurrer, this Court need not “assume the truth of contentions, deductions or conclusions of fact or law. [Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125]. The Court may also disregard allegations that are contrary to the law orto a fact of which judicial notice may be taken. [Fundinv. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.] Plaintiff’s “voidness™ allegations are not based on any factual assertions by Plaintiff that are not refuted by the record, described above, of 4837-4463-2655.1 -5- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT c o ~ 1 O n D O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KUTAK ROCK LLP ATTORNEYS AT LAW IRVINE which this Court may take judicial notice - the recorded documents showing clear chain oftitle and that all foreclosure notices were given. Plaintiff's causes of action attacking the validity of the foreclosure sale fail absent an allegation ofability and willingness to tender. 5. THE WRONGFUL FORECLOSURE CAUSE OF ACTION AND UNFAIR BUSINESS PRACTICES CAUSE OF ACTION FAIL. A. The Recorded Documents Evidence Clear Chain of Title 2% G6.Plaintiff’s assertion that the foreclosure “activities” “were not carried out by the original trustee nor a properly substituted trustee” because Plaintiff believes transfers of interest between the beneficiaries and a substitution of trustee were not recorded, is incorrect. [SAC, pars. 36-38 par. 59.] As referenced supra, the recorded documents evidence a clear chain of title. On March 29, 2012, as Plaintiff now admits, a Corporate Assignment of Deed of Trust was recorded reflecting MERS assigned the Deed of Trust to BOA. [RIN, Ex. “B”; SAC, par. 17.] That Assignmentis judicially noticeable. [Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4™ 256, 264-65.] Further, on July 2, 2012, the Trustee Substitution was recorded on the Property reflecting that Quality Loan Service Corporation was substituted as the trustee under the Deed of Trust. [RIN, Ex. “C”.] The Trustee Substitution is judicially noticeable. [See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4™ 256, 264-65.) Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. [Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.App.4™ 1443, 1447.] And, allegations in a complaint that are inconsistent with facts judicially noticed by the court are not accepted as true. [Cansino v. Bank ofAmerica (2014) 224 Cal.App.4™ 1462, 1474.) B. Plaintiff Lacks a Specific Fact Basis Challenging Authority to Foreclose. Plaintiff claims that the Substitution of Trustee was improper based on Plaintiff's erroneous contention that “failed to name the current Trustor.” [SAC, par. 19 and 36.] To the contrary, the document states “Trustor(s): GERALD DAVID MOUSHEY A SINGLE MAN.” Plaintiff also claims that he did not receive notice of the Substitution of Trustee. [SAC, par. 38.] Asthis Court previously found, “Plaintiff has not provided any authority which requires him to be given actual notice of the substitution of trustee for the substitution to be effective.” [RIN, Ex. 4837-4463-2655.1 -6- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTAK ROCK LLP ATTORNEYS AT LAW IRVINE “K”; Knapp v. Doherty (2004) 123 Cal.App.4™ 76, 89 (actual notice of trustee’s sale is not required.)] Plaintiff further claims that the Substitution of Trustee was not recorded. [SAC, par. 36.] Plaintiff makes this contention despite the fact that he admits elsewhere in his SAC that the Substitution was recorded (SAC, par. 24) and he attaches a recorded copy of this document to his SAC (SAC, Ex. “C”). To bring an action challenging whether foreclosure was authorized by the owner of the note, a plaintiff must allege a “factual basis” for the claim and must go further than a mere “speculative suit.” [Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4™ 1149, 1156.] A pleading made on information and belief is insufficient if it “merely assert[s] the facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true. [Gomes, 192 Cal.App.4" at 1158-1159.] Plaintiff’s challenge to foreclosure is not sufficiently pleaded because no specific factual basis to challenge authority to foreclose has been pleaded. As stated above, the Assignment was recorded assigning beneficial interest in the Deed of Trust to BOFA and the Substitution of Trustee was recorded reflecting that Quality Loan Service Corporation was substituted as the trustee under the Deed of Trust. Further, Plaintiff's assignment-related allegations are vague and do not implicate any void assignment or other void document. [Fontenot, 198 Cal.App.4™ at 269.] Any effort on the part of Plaintiff to challenge the Assignment due to non-recordation fails as assignments of deeds of trust are not required to be recorded under California law. [Haynes v. EMC Mortg. Corp. (2012) 205 Cal.App.4™ 329, 336- 337.] Plaintiff alleges no such facts. And, as Plaintiff now admits, the Assignment was recorded reflecting beneficial interest in the Deed of Trust was assigned to BOFA. [SAC, par. 17.] C. Plaintiff Fails to Allege an Unfair Business Practice by Lender Defendants. Plaintiff fails to sufficiently allege any unfair, deceptive, or unlawful practice with the requisite particularity required under California Business & Professions Code section 17200. [Khoury v. Maly’s ofCalifornia, Inc. 14 Cal.App.4™ 612, 619 (1993); People v. McKale (1979) 25 Cal.3d 626, 635.] As set forth supra Plaintiff has not pleaded any basis to attack authority to foreclose. His contention that there was no recorded assignment or substitution of trustee is erroneous. [RIN, Ex, “B”; Ex. “C”.] In addition, Plaintiff fails to plead any valid underlying claim. [Nool v. HomeQ Servicing (E.D. Cal. 2009) 2009 WL 2905745, *7.] Plaintiff does not 4837-4463-2655.1 -7- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT a ~ ~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTAK Rock LLP ATTORNEYS AT LAW Irving allege facts showing that his loss of the Property was the result of any unfair, unlawful, or fraudulent business practice by Lender Defendants, as opposed to being due to his own admitted default on the subject loan, and therefore does not demonstrate standing to bring a claim under Section 17200 or the element of causation thereunder. [Bus. & Prof. Code, § 17204; Kwikset Corp. v. Superior Court (2011) 51 Cal. 4% 310, 320-21; Peterson v. Cellco Partnership (2008) 164 Cal.App.4™ 1583, 1591; Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4" 497.] Plaintiff admits executing the Note and Deed of Trust, does not allege return of the loan proceeds, and, as in Jenkins, any injury was due to his own loan default. [Demurrer, Page 14, Lines 3 -9.] Absentinjury,this claim must fail 6. PLAINTIFE’S OPPOSITION TO THE DEMURRER TO THE THIRD CAUSE OF ACTION FOR “FRAUD” AND FOURTH CAUSE OF ACTION FOR “NEGLIGENT _MISREPRESENTATION” FAILS TO ADDRESS THE DEMURRER ARGUMENTS. In his Opposition, Plaintiff asserts that Lender Defendants knowingly misrepresented to him in July 2012 that foreclosure would be stayed while he was reviewed for a modification of the Loan. [Opposition, Page 13, Lines 13-17.] Even assuming the truth of this assertion (for purposes of Demurrer only), the Trustee’s Deed Upon Sale recorded January 29, 2016 indicates the foreclosure sale took place on January 15, 2016, i.e., that Plaintiff did indeed receive a postponement of the sale. [RIN, Ex. “G”.] Thus, Plaintiff does not allege specific facts as to any actual misrepresentation, including as to a past or existing fact, to state a cause of action for Fraud or for Negligent Misrepresentation, In addition, Plaintiff’s Opposition does not address that, to assert a fraud cause of action against a corporate employer, the plaintiff must “allege the names of persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” [Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.] Plaintiff’s Opposition also does not address Plaintiff’s failure to state with specificity the remaining elements of a Negligent Misrepresentation or Fraud cause of action -- no specific facts as to ill-intent are pleaded, no specific facts as to the element ofjustifiable reliance or damagesis 4837-4463-2655.1 -8- REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT c c J A N O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KUTAK ROCK LLP ATTORNEYS AT Law IRVINE pleaded. For purposes of this Demurrer, this Court need not “assume the truth of contentions, deductions or conclusions of fact or law. [Moore v. Regents of University ofCalifornia (1990) 51 Cal.3d 120, 125.] 7. NO FURTHER LEAVE TO AMEND SHOULD BE GIVEN, The burden is on Plaintiff to show in what manner he can amend the SAC to state a cause of action against Lender Defendants and how that amendment will change the legal effect of the pleading. [See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.] Courts should deny leave to amend where the plaintiff has alleged facts which preclude the relief sought in the original pleading. [Mercury Cas. Co. v. Sup. Ct. (Garcia) (1986) 179 Cal.App.3d 1027, 1035.] Plaintiff has had ample opportunity to state his claims and has failed to do so. Therefore, Lender Defendants respectfully request that no further leave to amend be granted in this case. 8. CONCLUSION. For the foregoing reasons, Lender Defendants respectfully requests the Court sustain this Demurrer without leave to amend. Dated: September 11, 2017 KUTAK ROCK LLP By: Reloecec L. we Jeffrey S. Gerardo Steven M. Dailey Rebecca L.. Wilson Attorneys for Defendants WELLS FARGO BANK, N.A. DBA AMERICA’S SERVICING COMPANY and BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE TRUST AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2004-7 4837-4463-2655.1 -9. REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT N O 0 3 O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuraAk Rock LLP ATTORNEYS AT Law IRVINE PROOF OF SERVICE MOUSHEY v WELLS FARGO BANK, N.A. ORANGE COUNTY SUPERIOR COURT CASE NO. 30-2016-00893738-CU-OR-CJC STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City of Irvine 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 5 Park Plaza, Suite 1500, Irvine, California 92614-8595. On September 11, 2017, 1 served on all interested parties as identified on the below mailing list the following document(s) described as: REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT [X] (BY NOTICE OF ELECTRONIC FILING) Counsel who have consented to electronic service have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document(s) was(were) filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [] (BY OVERNIGHT DELIVERY/COURIER) I delivered an envelope or package to a courier or driver authorized by the express service carrier; or deposited such envelope or package to a regularly maintained drop box or facility to receive documents by the express service carrier with delivery fees provided for. SERVICE LIST Timothy G. McFarlin, Esq. Attorneys for Plaintiff Jarrod Y. Nakano, Esq. Gerald David Moushey Gary T. Dote, Esq. McFarlin LLP Phone: (949) 544-2640 4 Park Plaza, Suite 1025 Fax: (949) 336-7612 Irvine, CA 92614 Email: gary@mecfarlinlaw.com Quality Loan Service Corporation Attorneys for Quality Loan Service Corporation Email: jmolteni@qualityloan.com (STATE) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 11, 2017, at Irvine,Ci Kathy Powell - 4828-3536-2115.1 -10 - 14617-964 REPLY IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT