2 W R I G H T FI NL AY & Z A K * A T T O R N E Y S AT LA W O oo ~1 aN wn fa Ww BN = R O N N N N N N N N mm em e m a a e k e m a e d 0 N N Un RA W N = DO 0 R W ND = O WRIGHT, FINLAY & ZAK, LLP Gwen H. Ribar, Esq. (SBN 188024) Marvin B. Adviento, Esq. (SBN 240315) ELECTRONICALLY FILED 4665 MacArthur Court, Suite 280 Rr Newport Beach, CA 92660 Tel: (245) 477-5050 a _- or Coun " Fax: (949) 608-9142 By & Clerk, Deputy Clerk Attorneys for Defendants, Mortgage Electronic Registration Systems, Inc. and Bank of New York Mellon, f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series 2005-59 SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE Surat Singh, an individual, Case No.: 30-2018-01000122-CU-FR-CIC Plaintiff, OPPOSITION TO EX PARTE V. APPLICATION FOR TEMPORARY RESTRAINING ORDER; Bank of New York Mellon, f/k/a The Bank of MEMORANDUM OF POINTS AND New York, as trustee, on behalf of the holders AUTHORITIES of the Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series Hearing: 2005-59; Quality Loan Service Corporation; Date: July 9, 2018 Mortgage Electronics Registration Servicing, Time: 1:30PM Inc.; Bank of America, N.A.; Christopher Dept: C-15 Herrera, an individual; Norma Rojas, an individual, and DOES 1 to 99, Inclusive; [Filed concurrently with Defendants’ Request for Judicial Notice | Defendants. TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Defendant Bank of New York Mellon, f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series 2005-59 (“BNY Trust”, collectively “Defendants”) hereby opposes the Ex Pariq Application for Temporary Restraining Order of Plaintiff Surat Singh (“Plaintiff”) and submit the following Memorandum of Points and Authorities, and Request for Judicial Notice, filed concurrently herewith, in support of its Opposition. 1 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC OO 0 9 O&O Uh =~ WwW N = - = = ed e d p d wn Rh W N = O A T T O R N E Y S AT LA W W R I G H T F I N L A Y & ZA K ** R R B R E N N E R G E S R NN oo Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP OT Gwen H. Ribar, Esq. Marvin B. Adviento, Esq. Attorneys for Defendants, Mortgage Electronic Registration Systems, Inc. and Bank of New York Mellon, f’k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-59, Mortgage Pass- Through Certificates, Series 2005-59 Dated: July 9, 2018 By: 2 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC Y W R I G H T F I N L A Y & ZA K A T T O R N E Y S AT LA W © OO X N O N Un hs W N N O N N N N N N N N e e s a e s a e a a 0 N N N UL lA W N = O 0 N Y R W N Y MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff is approaching vexatious litigant status with this FOURTH LAWSUIT. As implied by the fact that this is his fourth lawsuit, the claims raised here are the same as those in three prior actions, all of which have been dismissed, appealed, and which appeals themselves have either been affirmed or dismissed. As a brief history of this frivolous matter, Plaintiff filed a lawsuit against Bank of America and others, beginning in January 2012. Through multiple attorneys, Plaintiff complained of predatory lending, fraud, lack of standing to foreclose, and a host of other popular foreclosure defense claims. Through each and every one of his six amended complaints, Plaintiff failed to state a valid cause of action. Once Defendants’ Demurrer to his Sixth Amended Complaint was sustained without leave on November 5, 2015 and judgment being entered on December 2, 2015, Plaintiff embarked on a years-long quest to appeal that judgment. Ultimately, on May 16, 2017, the Fourth District Court of Appeals affirmed. the judgment of dismissal. By agreement, Defendants held off on foreclosing on the subject property, pending resolution of the appeal. That appeal having was finalized with a Remittitur issueed on July 18, 2017. Rather than allowing the foreclosure to proceed as agreed, Plaintiff filed a Chapter 7 Bankruptcy petition with the United States Bankruptcy Court for the Central District of California. Defendants. obtained relief from stay, but not before Plaintiff filed both an Adversary Complaint within his bankruptcy and a separate civil lawsuit in the United States District Court for the Central District of California. Both have since been dismissed by the respective Courts, as well as their subsequent appeals. Since these issues presented in this new lawsuit have been litigated in the prior lawsuits, Plaintiff is barred from bringing the same claims again under the doctrine of res judicata and collateral estoppel. Because this dooms this new action from the start, Plaintiff cannot establish a likelihood of prevailing on the merits. Further, Plaintiff has lived in the subject property for several years without paying his mortgage, even after receiving a loan modification. Therefore, 3 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC i W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OC 0 NN O N nn bk W N = N Y N o N Y N Y No N o N o N O NO - - - - -_ - -_ -_ - 0 N o y n t RR W N = D O N Y Ww NN = OO both the likelihood of failure and equity demands that this request for injunctive relief be denied. IL. STATEMENT OF FACTS A. Plaintiff Obtained a Loan, Defaulted, and a Non-Judicial Foreclosure Ensued On or about June 20, 2005, Plaintiff Surat Singh (“Plaintiff”) obtained a loan from SCME Mortgage Bankers, Inc. (“SCME”) in the amount of $1,100,000.00 (“Loan”). The Loan was and is evidenced by a promissory note (“Note”) and is secured by a deed of trust (“Deed of Trust”) encumbering real property commonly known as 527 Westminster Avenue, Newport Beach, California 92863 (“Property”). (Request for Judicial Notice [RIN], Exhibit 1.) All beneficial rights and interests under the Deed of Trust, including the right to- conduct a non-judicial foreclosure in the event of the borrowers’ default were subsequently assigned to Bank of New York Mellon, f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series 2005-59 (“BNYM Trust”). (RIN, Exhibit 2.) Plaintiff defaulted under the terms of the Loan by failing to make payments due | thereunder. The Loan is currently due for March 1, 2009. On May 19, 2014, Quality Loan Service (“QLS”) was substituted in as trustee under the Deed of Trust. (RIN, Exhibit 3) The same day, a Notice of Default (“NOD”) was recorded with the Orange County Recorder’s Office. (RIN, Exhibit 4.) A Notice of Trustee’s Sale (“NOTS”) was recorded with an initial sale date of July 21, 2017. The sale had been postponed multiple times due to: 1) a stipulation not to proceed until the resolution of the appeal in the state court lawsuit referenced below, 2) a bankruptcy filing by Plaintiff, 3) an adversary lawsuit filed in the bankruptcy court, 4) a second lawsuit filed in the federal courts, and 5) then-pending appeals of the dismissals of the adversary case and the federal case. B. Procedural History 1. First Lawsuit Plaintiff initially filed his prior state court complaint with the Orange County Superior Court on January 27, 2012 (“First Lawsuit”). (RIN, Exhibit 5.) In his Third Amended Complaint 4 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC i W R I G H T F I N L A Y & ZA K A T T O R N E Y S AT LA W OO 0 NN O N wn RR W N N O N N N N N ND O N N H mm mm e m e a e b p m p d pe ® ~~ Un B R O W N = O D Y R L ND = O (“TAC”), filed on July 9, 2014, Plaintiff added BNYM Trust and SPS as defendants. (RIN{ Exhibit 6.) Inthe TAC, Plaintiff brought eleven causes of action in connection with allegations of fraud, predatory lending, robo-signing, and lack of standing to foreclose. Plaintiff eventually, filed a Sixth Amended Complaint (“6AC”), to which Defendants demurred. (RIN, Exhibit 7. The state court sustained the Demurrers without leave to amend, and entered judgment on December 2, 2015. (RIN, Exhibit 8.) 2. Appeal of Dismissal of First Lawsuit Plaintiff appealed the judgment, but on May 16, 2017, the Fourth District Court of Appeals affirmed the judgment of dismissal. (RIN, Exhibit 9.) 3. Second Lawsuit On July 17, 2017, Plaintiff filed a Complaint with the United States District Court for the Central District of California under case number 8:17-cv-01178 (“Second Lawsuit”). (RIN, Exhibit 10.) On November 17, 2017, the Federal Court granted Defendants’ Motion to Dismiss without leave to amend. (RIN, Exhibit 11.) 4. Third Lawsuit On July 20, 2017, Plaintiff filed a Chapter 7 Bankruptcy Petition with the United States Bankruptcy Court for the Central District of California under case number 8:17-bk-12885-TA (“Bankruptcy”). (RIN, Exhibit 12.) On August 8, 2017, Plaintiff filed an Adversary Complaint under case number 8:17-ap-01135 (“Third Lawsuit”). (RIN, Exhibit 13.) The Third Lawsuit wa subsequently dismissed by the Court. (RIN, Exhibit 14.) 5. Appeal of Dismissal of Second and Third Lawsuits Plaintiff appealed the judgments of dismissals as to the Second and Third Lawsuits, bu Plaintiff voluntarily dismissed both appeals. (RIN, Exhibits 15-16.) III. ARGUMENT A. Standard for Review on Request for Injunctive Relief In deciding whether to issue a temporary restraining order, a trial court must evaluate two interrelated factors: 1) the likelihood that plaintiff will prevail on the merits of the underlying complaint at trial; and 2) he interim harm or irreparable injury that plaintiff is likely to sustain if 5 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC 2 W R I G H T F I N L A Y & ZA K ** A T T O R N E Y S AT LA W OO 0 NN 5 nn ke W N N O N O N RN O N N N RN N = mm e m e m md p d e d e d e a 0 NN O N Wn RR W R N , OO O 0 0 R W ND = Oo the injunction is denied, as compared to the harm that the defendant is likely to suffer if the preliminary injunction is issued. (White v. Davis (2003) 30 Cal.4™ 528, 554 ("The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. [Citation.]"); see also California Code of Civil Procedure Section 526.) Further, injunctive relief may issue only if monetary damages cannot afford adequate relief or are extremely difficult to ascertain. (Thayer Plymouth Center, Inc. v Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306.) B. Plaintiff Cannot Succeed Because His Claims Are Barred by Res Judicata "The doctrine of res judicata rests upon the ground that the party to be affected...has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent." (Citizens for Open Access Tc. Tide, Inc. v. Seadrift Ass'n (1998) 60 Cal. App. 4th 1053, 1065. "...[TThe question of whether a cause of action is identical for purposes of res judicata depends not on the legal theory or label used, but on the primary right’ sought to be protected in the two actions. The invasion of one primary right gives rise to a | single cause of action." Res judicata bars a subsequent action when "(1) the issues decided in the prior adjudication are identical with those presented in the later action; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the plea is raised was a party ... to the prior adjudication.” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427.) The party raising res judicata as a defense must have been a party or in privity with a party to the prior adjudication. (People v. Barragan (2004) 32 Cal. 4th 236.) "For purposes of applying the doctrine of res judicata ... a dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action." (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793.) Here, Plaintiff has litigated the same claims (that Defendant has no right to foreclose) for the past several years, which included a dismissal of said claims by this Court, which was affirmed by the Appellate Court, and the dismissal of two subsequent federal lawsuit. Indeed the instant lawsuit and ex parte application read much like that of a watered-down version of hig 6 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CIC OO 0 NN NN nn ks W N - t p t p d p d p d H O L D = O i W R I G H T FI NL AY & ZA K A T T O R N E Y S AT L A W N O R O R R RN ON N R = om m m ® 9 A&A G E O N S S 0 ww a a On three failed lawsuits. Because all of Plaintiff’s claims failed then, they too must fail here as well Thus, Plaintiff will be unable to prevail on the merits of this case, and a temporary restraining order should not issue. IV. CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Ex Parte Application for Temporary Restraining Order be denied. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP ST Gwen H. Ribar, Esq. Marvin B. Adviento, Esq. Attorneys for Defendants, Mortgage Electronic Registration Systems, Inc. and Bank of New York Mellon, f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series 2005-59 Dated: July 9, 2018 By: 7 OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Singh v. Bank of New York Mellon, et al. Court Case No. 30-2018-01000122-CU-FR-CJC 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 July 9, 2018, I served the within OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES on all interested parties in this action as follows: [1] by placing [ ] the original [] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Michael A. Younge, Esq. Law Office of Michael A. Younge 180 N. Riverview Drive No. 210 Anaheim, CA 92808 Tel: (714) 299-7406 Fax: (714) 276-1443\ Email: Attorney for Plaintiff Surat Singh [] (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. [X] (BY ELECTRONIC SERVICE) Based on an agreement of the parties to accept service electronically, I caused the document(s) to be transmitted electronically from sbennett@wrightlegal.net to the e-mail address(es) indicated herein. To the best my knowledge, the transmission was reported as complete, and no error was reported that the electronig transmission was not completed. [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. 1 PROOF OF SERVICE cL uN O N wn Bs oO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 97 28 [] [X] (CM/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.” (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on July 9, 2018, at Newport Beach, California. Steven E. Bennett 2 PROOF OF SERVICE
