Arturo Ramos v. Dli Properties, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiff Arturo Ramos' First Amended Complaint, Pursuant to Federal Rule of Civil Procedure 12

C.D. Cal.March 31, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90314682.1 NOTICE OF MOTION AND MOTION TO 5:16-cv-01257-JGB (KKx) DISMISS FIRST AMENDED COMPLAINT Todd A. Boock (SBN 181933) tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street, 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendant RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2005-12, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-12 (ERRONEOUSLY SUED SEPARATELY AS, “THE BANK OF NEW YORK MELLON,” AND “CWMBS, INC.”); AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION ARTURO RAMOS, Plaintiff, v. DLI PROPERTIES, LLC; NUSSBAUM, APC; RESIDENTIAL CREDIT SOLUTIONS, INC.; QUALITY LOAN SERVICES CORP.; All Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud On Plaintiff’s Title Thereto; DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-01257-JGB (KKx) DEFENDANT RESIDENTIAL CREDIT SOLUTIONS, INC.’S, BANK OF NEW YORK MELLON TRUSTEE’S AND MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF ARTURO RAMOS’ FIRST AMENDED COMPLAINT, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) [Memorandum of Points and Authorities; Request for Judicial Notice; Declaration of Todd A. Boock; and [Proposed] Order Filed Concurrently Herewith] Date: May 15, 2017 Time: 9:00 a.m. Courtroom: 1 Judge: Hon. Jesus G. Bernal Case Filed: June 14, 2016 Case 5:16-cv-01257-JGB-KK Document 60 Filed 03/31/17 Page 1 of 4 Page ID #:1030 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90314682.1 1 NOTICE OF MOTION AND MOTION TO 5:16-cv-01257-JGB (KKx) DISMISS FIRST AMENDED COMPLAINT TO ALL PARTIES AND THEIR COUNSEL OF RECORD PLEASE TAKE NOTICE that on May 15, 2017 at 9:00 a.m., in Courtroom 1 of the United States District Court, Central District of California, located at 3470 Twelfth Street, Riverside, California 92501, before the Honorable Jesus G. Bernal, defendant Residential Credit Solutions, Inc. (“RCS”); The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-12, Mortgage Pass Through Certificates, Series 2005-12 (erroneously sued separately as, “The Bank of New York Mellon,” and “CWMBS, Inc.”) (“BNYM”); and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Moving Defendants”); by and through their undersigned counsel, will, and hereby do, move to dismiss the first amended complaint (“FAC”) of plaintiff Arturo Ramos (“Plaintiff”). The Motion will be made pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Complaint fails to allege facts sufficient to state a cause of action against Moving Defendants as a matter of law. This Motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Request for Judicial notice, the Declaration of Todd A. Boock, all of the papers on file with this Court, and upon such oral argument and/or documentary matters as may be presented to this Court at or before the hearing on this Motion. Moving Defendants’ counsel made numerous attempts to contact Plaintiff, in compliance with Local Rule 7-3, but these efforts were unsuccessful, due to Plaintiff’s repeated failure to return telephone calls to discuss this Motion. RCS’s counsel has made at least four (4) separate attempts - including March 23, 24, 27 and 29, 2017 - to discuss this matter with Plaintiff, including a brief conversation on March 23, 2017 and several voicemail messages thereafter, but Plaintiff has refused to respond. See Declaration of Todd A. Boock, filed concurrently herewith, ¶¶ 2-6. / / / Case 5:16-cv-01257-JGB-KK Document 60 Filed 03/31/17 Page 2 of 4 Page ID #:1031 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90314682.1 2 NOTICE OF MOTION AND MOTION TO 5:16-cv-01257-JGB (KKx) DISMISS FIRST AMENDED COMPLAINT Moving Defendants engaged in good faith efforts to thoroughly discuss the substance of this Motion, in compliance with Local Rule 7-3, to no avail, and further efforts would be futile. Id. Dated: March 31, 2017 Respectfully submitted, By: /s/ Todd A. Boock Todd A. Boock tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street,41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendant RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON TRUSTEE; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Case 5:16-cv-01257-JGB-KK Document 60 Filed 03/31/17 Page 3 of 4 Page ID #:1032 509 Case 5:16-cv-01257-JGB-KK Document 60 Filed 03/31/17 Page 4 of 4 Page ID #:1033 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Todd A. Boock (SBN 181933) tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street, 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendants RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2005-12, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-12 (ERRONEOUSLY SUED SEPARATELY AS, “THE BANK OF NEW YORK MELLON,” AND “CWMBS, INC.”); AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION ARTURO RAMOS, Plaintiff, v. DLI PROPERTIES, LLC; NUSSBAUM, APC; RESIDENTIAL CREDIT SOLUTIONS, INC.; QUALITY LOAN SERVICES CORP.; All Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud On Plaintiff’s Title Thereto; DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-01257-JGB (KKx) DEFENDANTS RESIDENTIAL CREDIT SOLUTIONS, INC.’S, THE BANK OF NEW YORK MELLON TRUSTEE’S AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) [Notice of Motion; Request for Judicial Notice; Declaration of Todd A. Boock; and [Proposed] Order Filed Concurrently Herewith] Date: May 15, 2017 Time: 9:00 a.m. Courtroom: 1 Judge: Hon. Jesus G. Bernal Case Filed: June 14, 2016 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 1 of 27 Page ID #:1034 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 i MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 3 A. Title and Default History ...................................................................... 3 B. Lawsuit History ..................................................................................... 4 1. State Court Complaint ................................................................ 4 2. Federal Court Complaint ............................................................ 5 III. ARGUMENT .................................................................................................. 5 A. Legal Standard: Dismissal is Warranted Under Rule 12(b)(6) ............ 5 B. The FAC Should Be Dismissed, and This Court Should Abstain, Due to the Concurrent State Lawsuit Involving the Same Property and Transaction ............................................................ 6 C. The FAC is Barred Due to the Doctrine of Res Judicata ...................... 8 D. The FAC Should Be Dismissed, Because Plaintiff has no Standing to Sue Due to His Failure to Tender the Full Amount Owed on his Loan ............................................................................... 10 E. The FAC Should Be Dismissed Due to the Presumption that the Sale was Proper and Final. .................................................................. 10 F. The FAC Should be Dismissed, Because Plaintiff’s Allegations Pertaining to the Purported Violation of the Bankruptcy Stay are False. ............................................................................................. 11 G. The FAC Should Be Dismissed, Because It Fails to State a Claim Upon Which Relief Can Be Granted. ....................................... 12 1. The FAC is Hopelessly Uncertain. ........................................... 12 2. Plaintiff’s First, Second, Fourth, Fifth and Sixth Foreclosure- and Title-Related Counts Fail to State a Claim. ........................................................................................ 12 3. Plaintiff’s Eighteenth and Nineteenth Counts for Declaratory and Injunctive Relief Fail to State a Claim. ......... 14 4. Plaintiff’s Third Count for Rescission, Seventh through Tenth Counts for Fraud, Eleventh Count for Promissory Estoppel, Fourteenth Count for Breach of Fiduciary Duty and Fifteenth Count for Contractual Breach of Implied Covenant of Good Faith and Fair Dealing Fail to State a Claim. ........................................................................................ 15 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 2 of 27 Page ID #:1035 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 ii MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC 5. Plaintiff’s Other Counts Fail to State a Claim. ......................... 17 IV. CONCLUSION. ............................................................................................ 19 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 3 of 27 Page ID #:1036 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 iii MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC TABLE OF AUTHORITIES Page(s) Cases Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101 (1996) .............................................................................. 10 Aguilar v. Bocci, 39 Cal.App.3d 475 (1974) ................................................................................. 10 Albertson v. Raboff, 46 Cal. 2d 375 (1956) ........................................................................................ 14 Arnolds Mgmt. Corp. v. Eischen, 158 Cal.App.3d 575 (1984) ............................................................................... 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................. 5, 6, 12 Austero v. Aurora Loan Servs., Inc., 2011 WL 3359729 (N.D. Cal. Aug. 3, 2011) .............................................. 15, 16 Babb v. Super. Ct., 3 Cal. 3d 841 (1971) .......................................................................................... 15 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ............................................................................... 6 Batt v. Cty. and Cnty. of San Francisco, 155 Cal. App. 4th 65 (2007) .............................................................................. 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................... 5, 12 Biederman v. NW Trustee Servs., Inc. (C.D. Cal. June 24, 2015) 2015 WL 3889371 ................................................... 14 Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d 1163, 1171 (C.D. Cal. 2014) ..................................................... 17 Bucur v. Ahmad, 244 Cal. App. 4th 175 (2016) .............................................................................. 8 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 4 of 27 Page ID #:1037 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 iv MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Castaneda v. Saxon Mortg. Servs., Inc., 687 F. Supp. 2d 1191 (E.D. Cal. 2009) ............................................................. 16 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163 (1999) ....................................................................................... 17 Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) ............................................................................................ 6 Comunale v. Traders & General Ins. Co., 50 Cal. 2d 654 (1958) ........................................................................................ 17 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242 (9th Cir. 1990) ............................................................................... 6 Davis v. HSBC Bank Nevada N.A., 691 F.3d 1152 (9th Cir. 2012) ........................................................................... 18 Debrunner v. Deutsche Bank Nat’l Trust Co., 204 Cal. App. 4th 433 (2012) ...................................................................... 13, 14 Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004) ........................................................................... 15 Golden v. Sound Impatient Phys. Med. Grp., Inc., 93 F. Supp. 3d 1171, 1179 (E.D. Cal. 2015) ..................................................... 17 Gomes v. Countrywide, 192 Cal. App. 4th 1149 (2011) .................................................................... 13, 14 Hamilton v. Bank of Blue Valley, 764 F. Supp.2d 1160 (2010) .............................................................................. 11 Hughes v. Pair, 46 Cal. 4th 1035 (2009) ..................................................................................... 18 Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497,525 (2013) ..................................................................... 17 Kroeker v. Hurlbert, 38 Cal.App.2d 261 (1940) ................................................................................. 11 Lazar v. Superior Court, 12 Cal. 4th 631 (1996) ....................................................................................... 15 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 5 of 27 Page ID #:1038 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 v MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Lueras v. BAC Home Loans Servicing, LP, 221 Cal. App. 4th 49 (2013) .............................................................................. 16 Melendrez v. D & I Investment, Inc., 127 Cal.App.4th 1238 (2005) ............................................................................ 10 Moeller v. Lien, 25 Cal. App. 4th 822 (1994) ........................................................................ 10, 13 Nguyen v. Calhoun, 105 Cal.App.4th 428 (2003) .............................................................................. 10 Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089 (1991) ........................................................................... 16 Plotnik v. Meihaus, 208 Cal. App. 4th 1590 (2012) ............................................................................ 9 Rusheen v. Cohen, 37 Cal. 4th 1048 (2006) ..................................................................................... 14 Tarmann v. State Farm Mutual Auto Ins. Co., 2 Cal. App. 4th 153 (1991) ................................................................................ 16 Tensor Grp. v. Cty of Glendale, 14 Cal. App. 4th 154 (1993) ................................................................................ 8 Thibodeau v. Crum, 4 Cal. App. 4th 749 (1992) .................................................................................. 8 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ....................................................................................... 18 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ............................................................................. 5 Wood v. Motorola Mobility, Inc., 2012 WL 892166 ................................................................................................. 5 Yourish v. California Amplifier, 191 F.3d. 983 (9th Cir. 1999) ............................................................................ 15 Statutes Bus. & Prof. Code §§ 17200. .................................................................................. 17 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 6 of 27 Page ID #:1039 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 vi MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Bus. & Prof. Code § 17208 ..................................................................................... 18 California Civil Code § 1624 .................................................................................. 16 California Civil Code § 2923.6(c) .......................................................................... 13 California Civil Code § 2923.55(c) ..................................................................... 3, 4 California Civil Code § 2923.6(h) .......................................................................... 13 California Civil Code § 2924(h)(c) ........................................................................ 11 California Code of Civil Procedure § 761.020 ....................................................... 14 California Code of Civil Procedure §§ 2924 .......................................................... 13 California Code of Civil Procedure §§ 47 & 292 ................................................... 14 California Code of Civil Procedure § 335.1 ........................................................... 18 California Code of Civil Procedure § 337 ........................................................ 17, 18 California Code of Civil Procedure § 338(d) ......................................................... 16 California Code of Civil Procedure § 343 .............................................................. 17 Other Authorities Federal Rules of Civil Procedure 8(a) ..................................................................... 5 Federal Rules of Civil Procedure 9(b) .............................................................. 15, 18 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 7 of 27 Page ID #:1040 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 1 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Defendants Residential Credit Solutions, Inc. (“RCS”); The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-12, Mortgage Pass Through Certificates, Series 2005-12 (erroneously sued separately as, “The Bank of New York Mellon,” and “CWMBS, Inc.”) (“BNYM”); and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Moving Defendants”) hereby submit this Memorandum of Points and Authorities in Support of Its Motion to Dismiss (“Motion”) plaintiff Arturo Ramos’ (“Plaintiff”) First Amended Complaint (the “FAC”). I. INTRODUCTION In another nonsensical and incoherent pleading, Plaintiff again asserts a myriad of allegations and accusations against all of the defendants, without a scintilla of factual support nor any attempt to differentiate among the parties. What Plaintiff has actually done is simply cut and pasted the First Amended Complaint that was dismissed in his state court action and refiled it in this Court (see concurrently-filed Request for Judicial Notice, Exhibit “I”). As far as one can reasonably discern, Plaintiff apparently claims that RCS (the loan servicer); Quality Loan Services Corp. (“Quality”) (the duly-appointed foreclosure trustee); DLI Properties, LLC (“DLI”) (the purchaser of the property at the foreclosure sale); Nussbaum, APC (“Nussbaum”) (the attorneys hired by DLI to evict Plaintiff from the property at issue) and eight additional unserved new parties1 are all liable for some kind of malfeasance - apparently enumerated in nineteen causes of action - as a result of their collective involvement in foreclosing on the property. What Plaintiff fails to articulate, however, is that he was in default on his mortgage and failed to cure the default, so defendants were well within their respective rights to foreclose. In particular, Moving Defendants acted upon the rights and duties 1 BNYM and MERS are appearing and moving to dismiss this matter so that it will be resolved expeditiously. Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 8 of 27 Page ID #:1041 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 2 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC accorded to them by the loan documents and California law, and none of the allegations in Plaintiff’s FAC - even if taken as true - contradict that central premise. Plaintiff’s FAC should be dismissed for the following six basic reasons: First, this Court should abstain from this proceeding and dismiss this lawsuit, as Plaintiff already filed a lawsuit involving the transactions at issue in another jurisdiction, and this FAC is a clear case of impermissible forum shopping. Second, Plaintiff’s FAC is barred by the doctrine of res judicata. Third, Plaintiff has no standing to bring any of his causes of action, due to his failure to tender the full amount owed on the loan. Fourth, Plaintiff does not rebut the presumption that the foreclosure sale was proper and final. Fifth, Plaintiff premises several of his claims on the false allegation that the foreclosure occurred while a bankruptcy stay was in place are patently false. Sixth, Plaintiff’s complaint is a hodgepodge of confusing and nonsensical allegations that are not related to any of the defendants in particular, the FAC is hopelessly uncertain, and Plaintiff does not and cannot state sufficient facts to support any of his causes of action. The bottom line is that Plaintiff cannot plead around the basic facts that preclude his claims - he does not deny that he obtained the mortgage loan at issue; he does not deny that he was in default on that loan; he does not claim to have cured the default or made any attempt to do so; he does not point to any actual act of malfeasance by his loan servicer, RCS, the loan investor, BNYM, and the electronic registration system, MERS; he cannot contest the judicially-noticeable fact that the lender procured in rem relief as to the property and an Order Granting Motion for Relief from the Automatic Stay before the foreclosure sale; and he does not allege any specific irregularity in the foreclosure process. Simply put, Plaintiff’s claims about a conspiracy to cheat him out of his property are pure fiction and nothing more. For these and the foregoing reasons, Moving Defendants respectfully request Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 9 of 27 Page ID #:1042 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 3 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC that the Court dismiss this matter with prejudice. II. STATEMENT OF FACTS A. Title and Default History On or about March 17, 2005, Plaintiff purchased the property and signed a Deed of Trust (“DOT”) in favor of America’s Wholesale Lender (a dba of Countrywide Home Loans, Inc.) (“AWL”), providing the property, commonly known as 23795 Lawson Road, Corona, California 92883 (“Property”), as security for a loan made by AWL to Plaintiff in the amount of $668,000 (“Loan”). On March 17, 2005, the DOT was recorded in the Official Records of Riverside County as Instrument No. 2005-0211875. See Request for Judicial Notice (“RJN”), concurrently filed herewith, Exhibit (“Ex.”) “A.” Mortgage Electronic Registration Systems, Inc. (“MERS”) is listed as the beneficiary of the DOT. Id. On or about July 27, 2011, MERS assigned all beneficial interest under the DOT to the Bank of New York Mellon fka the Bank of New York as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-12, Mortgage Pass-Through Certificates, Series 2005-12. The Assignment was recorded in the Official Records of Riverside County on August 4, 2011, as Instrument No. 2011-0341670. RJN, Ex. “B.” At some point in 2011, Plaintiff fell into default on his loan, and various Notices of Default and Sale were recorded between 2011 and March 2015, but these were subsequently rescinded. See, e.g., RJN, Ex. “C.” On February 23, 2015, a Substitution of Trustee was recorded as Instrument No. 2015-0071017, indicating that Quality would be the foreclosure trustee. See Request for Judicial Notice filed on July 21, 2016, by co-defendant Quality Loan Service Corp., Docket No. 15-2, Ex. “3.” Plaintiff again defaulted on the Loan, and Quality recorded a notice of default against the Property on September 16, 2015. RJN, Ex. “D.” The Notice of Default included the California Declaration of Compliance, pursuant to Civil Code section 2923.55(c), affirming that Quality had properly undertaken its pre- Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 10 of 27 Page ID #:1043 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 4 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC foreclosure due diligence before recording the Notice. Id. On December 22, 2015, more than three months from the date on which the Notice of Default was recorded, and at least 20 days before the date of the sale, Quality recorded a Notice of Sale, setting the sale for January 20, 2016. RJN, Ex. “E.” According to the Notice of Sale, the unpaid balance and related charges on the loan was $867,657.71 at that time. The sale went forward as scheduled on January 20, 2016, and third party defendant DLI purchased the property for $520,000. The Trustee’s Deed Upon Sale memorializing the sale transaction was recorded on February 2, 2016, less than fifteen days after the sale. RJN, Ex. “F.” B. Lawsuit History 1. State Court Complaint On or about May 25, 2016, Plaintiff filed a complaint in Riverside County Superior Court against defendants RCS; Quality; DLI; The Bank of New York Mellon; CWMBS, Inc.; “America’s Wholesale Lender”; Countrywide Home Loans, Inc.; CTC Real Estate Services; Mortgage Electronic Registration Services, Inc.; Bank of America, N.A.; and ReconTrust Company, Inc.; alleging seven causes of action, including: (1) Declaratory Judgment; (2) Injunctive Relief; (3) Wrongful Foreclosure; (4) Set Aside Trustee’s Sale; (5) Cancel Trustee’s Deed; (6) Quiet Title; and (7) Slander of Title. RJN, Ex. “G.” This lawsuit relates to the foreclosure of the Property at issue in the instant matter. On August 9, 2016, the Superior Court sustained defendants Countrywide Home Loans, Inc.’s, CTC Real Estate Services’, Bank of America, N.A.’s and ReconTrust Company, N.A.’s (collectively, the “Countrywide Defendants”) demurrer to the complaint with leave to amend, after Plaintiff failed to file any opposition to the demurrer. RJN, Ex. “H.” On September 7, 2016, Plaintiff filed his first amended complaint in the Superior Court action (“Superior Court FAC”), which is nearly identical to the FAC in this Court. RJN, Exh. “I.” The Superior Court subsequently took RCS’ demurrer to the original Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 11 of 27 Page ID #:1044 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 5 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC complaint off calendar. See Superior Court docket, October 3, 2016 entry, RJN, Exh. “J.” On December 13, 2016, the Superior Court sustained without prejudice the separate demurrers to the Superior Court FAC of the Countrywide Defendants and DLI. RJN, Exh. “K.” Plaintiff failed to timely further amend the Superior Court FAC, and after a joint ex parte application to dismiss by the Countrywide Defendants and DLI, the Superior Court dismissed the case with prejudice. RJN, Exh. “L.” 2. Federal Court Complaint On or about June 14, 2016, Plaintiff filed this Complaint against RCS, Quality, DLI and Nussbaum, alleging twenty-one causes of action, all of which stem from the same transactions, facts, property and foreclosure as the earlier state court lawsuit. III. ARGUMENT A. Legal Standard: Dismissal is Warranted Under Rule 12(b)(6) A complaint will not survive a motion to dismiss unless the plaintiff has pled “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). A sufficient complaint “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678; Wood v. Motorola Mobility, Inc., No. 11-04409, 2012 WL 892166, *3 (N.D. Cal. Mar. 14, 2012 (allegation that “simply parrots the language of the statute . . . fails to meet the Twombly/Iqbal standard”). After stripping away such conclusory assertions, the remaining factual allegations must “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a). A court need not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Dismissal under Federal Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 12 of 27 Page ID #:1045 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 6 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Rule of Civil Procedure 12(b)(6) is proper where there is a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Moreover, dismissal without leave to amend is appropriate where proposed amendments would fail to cure the pleading deficiencies and amendment would be futile. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (per curium). “Determining whether a complaint states a plausible claim of relief” is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citations omitted) (emphasis added). B. The FAC Should Be Dismissed, and This Court Should Abstain, Due to the Concurrent State Lawsuit Involving the Same Property and Transaction The United States Supreme Court has held that federal courts should refrain from proceeding in litigation in certain circumstances where proceedings involving the same issues have also been filed in state court. In Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), the Supreme Court held that abstention was applicable to situations when parallel state and federal litigation are pending. Colorado River was a water rights case involving simultaneous state and federal court proceedings against the United States. The Court held that, in a limited number of cases, federal courts should abstain because of the pendency of parallel and duplicative state court litigation. The Court observed that these cases are founded upon concerns of judicial administration, not considerations of comity and federalism that relate to the other abstention doctrines. Id., at 817-18. The Court recognized that “exceptional” circumstances might permit a federal court to refrain from exercising jurisdiction “for reasons of wise judicial administration, in situations of concurrent state litigation.” Id., at 818. The case at bar presents such circumstances. In the instant matter, Plaintiff based the original Complaint on the following Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 13 of 27 Page ID #:1046 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 7 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC purportedly “despicable” acts of “defendants”: (1) “Manufacturing of False & forged Instruments to defraud Real Property” (emphases in original); (2) “Recording False & ROBO-SIGNED Instruments into Real Property records” (emphasis in original); (3) Fraudulently misrepresenting itself as the Holder in Due Course of a mortgage note, which falsely gives itself right to the subject property”; and (4) “Fraudulently staging a false foreclosure sale an [sic] misrepresenting itself as the ‘highest bidder’ or purchaser of the property at a foreclosure sale or auction.” (Emphases in original.) See Complaint, 11:8-12. The underlying theme of Plaintiff’s entire meandering complaint is that all of the defendants collectively acted to deprive Plaintiff of his rights in the property and wrongfully foreclose, without having standing to do so. In Plaintiff’s state court lawsuit, he similarly alleged that defendants RCS, Quality, DLI and others (nor part of the federal lawsuit): have fraudulently misrepresented the facts, have committed fraud and have maliciously tried to deprive me of my property, have denied me loan modification applications and denied me a reinstatement plan in order to pay what I was behind and worst of all have deprived me from quietly and peacefully enjoyment [sic] or my property. RJN, Ex. “G,” 11:8-16. As noted above, Plaintiff’s current FAC is virtually identical to the Superior Court FAC. RJN, Exh. “I.” Both of the lawsuits involve the same property, title history and foreclosure process, as well as most of the same parties (the state court case includes additional defendants). Moreover, the gravamen of both lawsuits is that certain defendants wrongfully foreclosed and deprived Plaintiff of rights to the Property. Plaintiff has filed lawsuits in two jurisdictions for no apparent purpose, other than for improper forum shopping and harassment of defendants. The state court adequately Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 14 of 27 Page ID #:1047 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 8 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC adjudicated the matters truly at issue - whether certain defendants wrongfully foreclosed and/or committed fraud. There is a risk of inconsistent and piecemeal judgments if both cases are permitted to proceed. Because Plaintiff filed a separate lawsuit in state court prior to filing this case, Moving Defendants respectfully request that this Court abstain from further proceedings and dismiss this lawsuit. C. The FAC is Barred Due to the Doctrine of Res Judicata The Court should sustain Moving Defendants Motion to Dismiss with prejudice, because Plaintiff’s entire action is barred by the doctrine of res judicata. Plaintiff does not allege any claims in the current FAC that were not, or could not have been, litigated in the Superior Court action. As a result, his claims are barred due to the final judgment reached in Plaintiff’s Superior Court case. “Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” Gillies v. JPMorgan Chase Bank, N.A., 2017 WL 345040, at *4 (Cal. Ct. App. Jan. 24, 2017) (certified for publication). The doctrine applies both to matters that were litigated and matters that could have been litigated in the previous action. Thibodeau v. Crum, 4 Cal. App. 4th 749, 755 (1992). If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. Bucur v. Ahmad, 244 Cal. App. 4th 175, 185 (2016) (quoting Thibodeau, 4 Cal. App. 4th at 755) (emphasis in original); see also Tensor Grp. v. Cty of Glendale, 14 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 15 of 27 Page ID #:1048 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 9 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Cal. App. 4th 154, 160 (1993). Here, the FAC does not raise any claims or issues that Plaintiff did not raise, or that he could not have raised, in the Superior Court case. For instance, in both the Superior Court case and his current FAC, Plaintiff seeks to litigate whether Defendants wrongfully foreclosed on his property in violation of a bankruptcy stay. Plaintiff could have asserted any claims relating to the alleged stay in the Superior Court case. The court of appeals decision in Gillies is instructive. There, plaintiff brought a fourth suit challenging JP Morgan’s foreclosure procedures, alleging violations of the California Homeowners Bill of Rights, lack of standing to foreclose, unlawful substitution of trustee, fraud, injunctive relief and damages. Gillies, 2017 WL 345040, at *2. The trial court sustained defendant’s demurrer without leave to amend. Noting “the sanctity and integrity of final judgment,” the appellate court affirmed the trial court’s judgment, finding that principles of res judicata were fatal to the plaintiff’s lawsuit and theoretical future lawsuits. Id. at *4. Before filing the FAC, Plaintiff had no less than four opportunities to state a claim against RCS relating to its role as servicer during the foreclosure process: (1) in his original Complaint filed in this Court; (2) in his opposition to RCS’ Motion to Dismiss that Complaint; (3) in his original Superior Court complaint; and (4) in his Superior Court FAC. Plaintiff also could have argued his positions in the oppositions to the demurrers to the Superior Court pleadings, had he opted to file any. Plaintiff cannot circumvent the preclusive nature of the final judgment dismissing the Superior Court case. Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1612 (2012). “Somewhere along the line, litigation must cease.” Gillies, 2017 WL 345040, at *4 (quoting In re Marriage of Crook, 2 Cal. App. 4th 1606, 1613). Plaintiff’s FAC should be dismissed in its entirety, with prejudice. / / / Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 16 of 27 Page ID #:1049 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 10 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC D. The FAC Should Be Dismissed, Because Plaintiff has no Standing to Sue Due to His Failure to Tender the Full Amount Owed on his Loan Every cause of action in the FAC must fail because Plaintiff has not tendered the amount due under the Loan. A party may not challenge a foreclosure sale unless they first tender the undisputed obligation in full. Arnolds Mgmt. Corp. v. Eischen, 158 Cal.App.3d 575, 579 (1984). California courts apply the tender rule to “any cause of action for irregularity in the sale procedure.” Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101, 1109 (1996) (affirming sustaining of demurrer without leave to amend); see also Aguilar v. Bocci, 39 Cal.App.3d 475, 477 (1974). Without the payment of the full amount of indebtedness, each cause of action that challenges a right to foreclose must fail as it is “implicitly integrated” with the foreclosure. Arnolds Mgmt. Corp., 158 Cal.App.3d at 579 (“a cause of action ‘implicitly integrated’ with the irregular sale fails unless the trustor can allege and establish a valid tender”). The tender rule is strictly applied, and tender of the full amount owed must be alleged in order to state a claim. Nguyen v. Calhoun, 105 Cal.App.4th 428, 439 (2003). Here, the FAC is again devoid of any allegations demonstrating that Plaintiff has tendered or has the ability to tender the full amount due under the Loan. See FAC, generally. Moreover, all of Plaintiff’s causes of action implicitly relate to the purported wrongful foreclosure. Consequently, as he has failed to allege tender, Plaintiff’s causes of action, each of which are implicitly integrated in his challenge to foreclosure, are barred. E. The FAC Should Be Dismissed Due to the Presumption that the Sale was Proper and Final. There is a common law rebuttable presumption that a nonjudicial foreclosure sale has been conducted regularly and fairly. Moeller, supra, 25 Cal.App.4th at 831; Melendrez v. D & I Investment, Inc., 127 Cal.App.4th 1238 (2005) (citations omitted.) To challenge foreclosure, a complaint should have allege specific Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 17 of 27 Page ID #:1050 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 11 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC statutory irregularities or misconduct in the foreclosure proceedings. See, e.g., Hamilton v. Bank of Blue Valley, 764 F. Supp.2d 1160, 1174 (2010); Kroeker v. Hurlbert, 38 Cal.App.2d 261, 266 (1940). Plaintiff fails to allege any facts to challenge the presumption of regularity. Additionally, pursuant to California Civil Code section 2924(h)(c), “For the purposes of this subdivision, the trustee’s sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee’s deed is recorded within 15 calendar days after the sale.” The foreclosure sale at issue occurred on January 20, 2016, and the Trustee’s Deed Upon Sale was recorded less than fifteen days later, on February 2, 2016. RJN, Ex. “F.” Consequently, the sale was deemed perfected as of 8:00 a.m. on January 20, 2016, and this lawsuit should be dismissed. F. The FAC Should be Dismissed, Because Plaintiff’s Allegations Pertaining to the Purported Violation of the Bankruptcy Stay are False. Plaintiff alleges the foreclosure sale violated a bankruptcy automatic stay. FAC 5:4-23. Plaintiff is wrong, and his claims are false. Prior to foreclosing, the lender procured in rem relief as to the property and an Order Granting Motion for Relief from the Automatic Stay was recorded before the foreclosure sale. The Bankruptcy Court found that Plaintiff’s bankruptcy filing was, “part of a scheme to hinder, delay, or defraud creditors.” See RJN Exh. “M.” 2 Plaintiff’s false allegation that Defendants violated the automatic stay appears to be central to most, if not all of his claims. / / / / / / / / / 2 Additionally, defendant DLI Properties, LLC separately had the automatic stay annulled as to the sale, apparently because it was not aware of the lender’s in rem relief from stay. See RJN Ex. “N.” Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 18 of 27 Page ID #:1051 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 12 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC G. The FAC Should Be Dismissed, Because It Fails to State a Claim Upon Which Relief Can Be Granted. 1. The FAC is Hopelessly Uncertain. While Moving Defendants will discuss several of the particular causes of action directly, as a general matter, the FAC is hopelessly uncertain. Plaintiff fails to differentiate among the parties or indicate which defendant committed which act. For example, RCS was the servicer of the Loan during a specific period of time. It did not purchase the Property at the foreclosure sale, nor did it file the unlawful detainer action, yet it has been combined with all of the other defendants in Plaintiff’s Complaint. It is impossible for Moving Defendants to be put on notice as to exactly which of its purported conduct is at issue in this case. Moreover, while Plaintiff makes broad conclusory allegations of malfeasance, he fails to allege any specific facts as to which party did what and when. This is precisely what the Supreme Court addressed in Ashcroft v. Iqbal, 556 U.S. 662, 678- 679 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Consequently, the Complaint should be dismissed. 2. Plaintiff’s First, Second, Fourth, Fifth and Sixth Foreclosure- and Title-Related Counts Fail to State a Claim. First, Counts One, Two, Four, Five and Six (and all of Plaintiffs’ claims), as alleged in the FAC fail for the reasons addressed above, including Plaintiff’s failure to tender, Plaintiff’s failure to rebut the presumption that the foreclosure sale was conducted regularly and fairly, and because the automatic stay was not in effect at the time of the foreclosure sale. To the extent these claims are based on allegations that Plaintiff “believed” the sale would be postponed pending a loan modification, the claims also fail / / / / / / / / / Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 19 of 27 Page ID #:1052 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 13 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC because nowhere does the FAC allege that Plaintiff had timely submitted a complete loan modification application to RCS prior to the foreclosure sale.3 Plaintiff cannot state a claim under any of these causes of action based on a “show the note” theory because Plaintiff lacks standing to do so.4 Pursuant to California’s comprehensive non-judicial foreclosure statutory framework (see Cal. Code Civ. Proc. §§ 2924 et seq.), Plaintiff is barred from bringing an action to force Defendants to “prove” the identity of the note holder where the chain of title is clear, as evidenced by the documents recorded in the official records of Riverside County. See, e.g., Gomes v. Countrywide, 192 Cal. App. 4th 1149, 1155-56 (2011); Debrunner v. Deutsche Bank Nat’l Trust Co., 204 Cal. App. 4th 433, 435 (2012); see also, Dkt. 27. This theory, that the party to commence and conduct non-judicial foreclosure proceedings must be in possession of the promissory note, has been roundly rejected. Non-judicial foreclosure proceedings conducted pursuant to the power of sale in a deed of trust are governed exclusively and exhaustively by California Civil Code section 2924, et seq. See Moeller v. Lien, 25 Cal. App. 4th 822, 834 (1994). This statutory framework provides no procedure for determining the identity of the “holder of the note.” See, generally, section 2924, et seq. This is because proving that one is the holder of the note is not a requirement for non-judicial foreclosure under a deed of trust. Relying on this exhaustive statutory framework, California courts have refused to delay the non-judicial foreclosure process by allowing borrowers to pursue preemptive judicial actions to challenge the right, power, and authority of a 3 A loan servicer is not required to halt the foreclosure process, and the protections of the Homeowner Bill of Rights do not apply, unless and until a borrower submits a complete loan modification application. Civ. Code § 2923.6(c). Only once a borrower submits a complete application, as “required” and “specified” by the servicer, are dual tracking protections triggered. See Civ. Code § 2923.6(h). 4 Plaintiff’s injunctive relief cause of action also appears to be based on this flawed theory. Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 20 of 27 Page ID #:1053 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 14 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC foreclosing “beneficiary” or its “agent” to pursue foreclosure. See, e.g., Gomes v. Countrywide, 192 Cal.App.4th 1149, 1155-56 (2011) (“California’s nonjudicial foreclosure law does not provide for the filing of a lawsuit to determine whether MERS has been authorized by the holder of the Note to initiate a foreclosure.”) For example, the California Court of Appeal rejected the same argument brought by Plaintiff here in Debrunner v. Deutsche Bank National Trust Company. In that case, the plaintiff sought to “quiet title to property on which nonjudicial foreclosure proceedings had been initiated.” Debrunner, 204 Cal. App. 4th 433, 435 (2012). The plaintiff in Debrunner contended that a non-judicial foreclosure could not proceed because it would be invalid, “unless the beneficiary is in possession of the underlying promissory note. Without such possession, the deed of trust is ‘severed’ from the promissory note and consequently is of no effect.” Id. at 440. Moreover, Plaintiff has not articulated any basis by which to quiet title in his favor or against Moving Defendants. See Cal. Code Civ. Proc. § 761.020. Plaintiff fails to allege that Moving Defendants assert any adverse claim to the title Plaintiff asserts in the property, where RCS was only the servicer of the loan, and the property was sold to a bona fide purchaser for value. As for Plaintiff’s slander of title cause of action (Count Six), this claim fails for the reasons above, and because recorded documents pursuant to nonjudicial foreclosure are absolutely privileged acts on which no tort claim of any sort, other than malicious prosecution, may be based. See Civ. Code §§ 47 & 292; see also Albertson v. Raboff, 46 Cal. 2d 375, 378-81 (1956); Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006). 3. Plaintiff’s Eighteenth and Nineteenth Counts for Declaratory and Injunctive Relief Fail to State a Claim. Both declaratory and injunctive relief are remedies, not causes of action. Batt v. Cty. and Cnty. of San Francisco, 155 Cal. App. 4th 65, 82 (2007); Biederman v. NW Trustee Servs., Inc. (C.D. Cal. June 24, 2015) 2015 WL 3889371, at *1. Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 21 of 27 Page ID #:1054 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 15 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Moreover, Plaintiff’s declaratory and injunctive relief claims (Counts Eighteen and Nineteen) are improper because they merely duplicate the quiet title cause of action and arise from alleged prior conduct-the foreclosure sale that took place in 2016. An action for declaratory or injunctive relief will not lie to determine issues that are already the subject of an existing claim. California Ins. Guar. Ass 'n v. Super. Ct. (Jakes), 231 Cal. App. 3d 1617, 1623-24 (1991). Additionally, declaratory and injunctive relief are not available to redress past alleged wrongs. Babb v. Super. Ct., 3 Cal. 3d 841, 848 (1971). 4. Plaintiff’s Third Count for Rescission, Seventh through Tenth Counts for Fraud, Eleventh Count for Promissory Estoppel, Fourteenth Count for Breach of Fiduciary Duty and Fifteenth Count for Contractual Breach of Implied Covenant of Good Faith and Fair Dealing Fail to State a Claim. As to his fraud claims, Plaintiff fails to satisfy the heightened pleading standard under Fed. Rule Civ. Proc. 9(b). The elements of a fraud claim in California are: (1) misrepresentation; (2) knowledge of the falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996). In pleading these fraud elements, Federal Rule of Civil Procedure 9(b) requires that “the circumstances constituting fraud or mistake . . . be stated with particularity.” See also Austero v. Aurora Loan Servs., Inc., No. 11-00490, 2011 WL 3359729, at *9 (N.D. Cal. Aug. 3, 2011) (applying Rule 9(b)’s heightened pleading standard to plaintiffs-borrowers’ claims of fraud and fraud in the inducement with respect to home mortgage loan). A plaintiff must allege the specific statements that are the basis of his fraud claim, what is false or misleading about the statements, who made the statements, when the statements were made, and where the statements were made. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004); Yourish v. California Amplifier, 191 F.3d. 983, 993 (9th Cir. 1999) (citing In re GlenFed Sec. Litig., 42 F.3d 1541, 1545 (9th Cir. 1994) (en banc)); see also Austero, 2011 WL 3359729, at *9 (“The plaintiff must include ‘the who, what, when, where, and how’ of the fraud . . . [and] Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 22 of 27 Page ID #:1055 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 16 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC ‘what is false or misleading about a statement, and why it is false’”) (citations omitted). Moreover, a fraud claim against a corporation or limited liability company must be even more specific, alleging: (1) the names of persons who made the misrepresentations; (2) their authority to speak on behalf of the corporation; (3) to whom they spoke; (4) what they misrepresented; and (5) when they should have disclosed the information. Tarmann v. State Farm Mutual Auto Ins. Co., 2 Cal. App. 4th 153, 157 (1991). Not only does Plaintiff fail to allege the “who, what, when, where, and how” of the alleged fraud, see Austero v. Aurora Loan Servs., Inc., No. 11-00490, 2011 WL 3359729, at *9 (N.D. Cal. Aug. 3, 2011), but it is not even clear which claims Plaintiff asserts against which Defendants. Plaintiff’s fraud claims relating to inducement, concealment and fraudulent misrepresentation (Counts Seven, Eight and Ten) are not alleged against RCS. Even if they were, to the extent these claims relate to loan origination, which took place in 2005, they are barred by the applicable statute of limitations. Code Civ. Proc. § 338(d).5 It is also unclear against which Defendants Plaintiff asserts his entirely vague claim for constructive fraud (Count Nine). That claim appears to be based on alleged fiduciary duties purportedly owed by “Defendants” to Plaintiff. However, RCS, as a servicer, owed Plaintiff no duty of care. See Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1095 (1991); Lueras v. BAC Home Loans Servicing, LP, 221 Cal. App. 4th 49, 68 (2013); Castaneda v. Saxon Mortg. Servs., 5 Also, to the extent Plaintiff’s fraud claims are based on allegations that he entered into an “oral” agreement with Defendants to obtain the subject loan (FAC ¶ 20), any such oral representations are barred by the statute of frauds, which provides that “[a]n agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property purchase” is invalid, unless in writing. Civ. Code § 1624. Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 23 of 27 Page ID #:1056 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 17 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Inc., 687 F. Supp. 2d 1191, 1197 (E.D. Cal. 2009). The absence of such a duty is also fatal to Plaintiff’s separate cause of action for breach of fiduciary duty (Count Fourteen). Moreover, to the extent Plaintiff’s breach of fiduciary duty claim is based on allegations about the origination of Plaintiff’s loan, the claim clearly does not pertain to RCS, and is time-barred. Code Civ. Proc. § 343 (statute of limitations for breach of fiduciary duty claim is four years).6 Plaintiff’s promissory estoppel claim (Count Eleven) also appears to relate to Plaintiff’s loan origination, and therefore does not apply to RCS or the other Moving Defendants. Even if it did, claims for promissory estoppel are generally subject to a four year statute of limitations, Code Civ. Proc. § 337, and therefore the claim is time-barred. Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing (Count Fifteen) also fails. The implied covenant of good faith and fair dealing applies to contracts. Comunale v. Traders & General Ins. Co., 50 Cal. 2d 654 (1958). “Without a contractual underpinning, there is no independent claim for breach of the implied covenant.” Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497,525 (2013). Plaintiff has not pled the existence of a contract between himself and RCS, and therefore this cause of action is legally inapplicable. 5. Plaintiff’s Other Counts Fail to State a Claim. Plaintiff’s unfair competition claim (“UCL,” Count Sixteen) under Bus. & Prof. Code §§ 17200 et seq. is derivative of Plaintiff’s other claims, which fail for the reasons addressed herein. Therefore, Plaintiff’s UCL claim likewise fails.7 6 Plaintiff’s rescission claim (Count Three) is entirely derivative of his fraud claims, and likewise fails. 7 Specifically, as to the “unlawful” prong of Plaintiff’s UCL claim, “[w]here a plaintiff cannot state a claim under the ‘borrowed’ law, [he] cannot state a UCL claim either.” Golden v. Sound Impatient Phys. Med. Grp., Inc., 93 F. Supp. 3d 1171, 1179 (E.D. Cal. 2015). Plaintiff cannot rely on the “unfair” prong of the UCL because he has failed to identify any legislatively declared public policy undermined by the alleged conduct. See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999); Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d 1163, 1171 (C.D. Cal. 2014). And the “fraudulent” prong of Plaintiff’s UCL claim Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 24 of 27 Page ID #:1057 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 18 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC Additionally, as this claim appears to be based on allegations about “making loans,” it does not apply to RCS or the other Moving Defendants. Finally, the claim is time- barred by the UCL’s four year statute of limitations. Bus. & Prof. Code § 17208. Plaintiff’s claim for intentional infliction of emotional distress (“IIED,” Count Seventeen) is also futile. To state a claim for IIED, a claimant must assert “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009). Here, Plaintiff does not identify any specific acts by RCS to support this conclusory cause of action, let alone allegations of “extreme and outrageous conduct.” Moreover, there is a two-year statute of limitations for IIED claims, so to the extent this claim is based on loan origination, it is time-barred. Code Civ. Proc. § 335.1. Plaintiff’s claims seeking to void the “contract” based on impossibility of performance and unconscionableness (Counts Twelve and Thirteen) are similarly futile. While it is not entirely clear which contract these claims pertain to, they appear to relate to the promissory note and the origination of Plaintiff’s loan, and therefore do not implicate RCS, which serviced the loan for a period of time. Plaintiff does not allege that he ever entered a contract with RCS or the other Moving Defendants. Even if these claims did apply to Moving Defendants, they would be time-barred, like Plaintiff’s other loan origination causes of action. Code Civ. Proc. § 337. Plaintiff has literally thrown “everything but the kitchen sink” in this FAC, attempting to state, without any factual support or legal basis, a variety of inapplicable theories upon which to base liability and damages. However, Plaintiff fails to state sufficient facts to support any of these claims, instead merely reciting fails because he does not allege any business practice of RCS that is likely to deceive the public, and due to his failure to satisfy the pleading standard of Rule 9(b). In re Tobacco II Cases, 46 Cal. 4th 298, 312 (2009); Davis v. HSBC Bank Nevada N.A., 691 F.3d 1152, 1169 (9th Cir. 2012). Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 25 of 27 Page ID #:1058 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90356977.1 19 MEMORANDUM OF POINTS AND 5:16-cv-01257-JGB (KKx) AUTHORITIES ISO MOTION TO DISMISS FAC portions of the statutes upon which he relies. Moreover, the entire premise upon which the FAC is based, that defendants had no standing to foreclose, that there were irregularities in the foreclosure procedure, that there was a bankruptcy stay in place, and/or that Plaintiff has a valid claim to title, are belied by the judicially noticeable clear title history and recorded foreclosure documents. Plaintiff does not properly deny that he obtained the mortgage at issue or that he was in default. Consequently, Moving Defendants had every right to act upon the legal rights afforded them by the loan documents and California law. Plaintiff has no legitimate basis for any of his causes of action, and the motion to dismiss should be granted. IV. CONCLUSION. For the foregoing reasons, Moving Defendants respectfully requests that the Court grant their Motion to Dismiss Plaintiff’s FAC without leave to amend. Dated: March 31, 2017 Respectfully submitted, By: /s/ Todd A. Boock Todd A. Boock tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street,41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendants RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON TRUSTEE; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 26 of 27 Page ID #:1059 Case 5:16-cv-01257-JGB-KK Document 60-1 Filed 03/31/17 Page 27 of 27 Page ID #:1060 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90361996.1 DECLARATION OF TODD A. BOOCK 5:16-cv-01257-JGB (KKx) ISO DEFENDANTS’ MOTION TO DISMISS FAC Todd A. Boock (SBN 181933) tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street, 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendants RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2005-12, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-12 (ERRONEOUSLY SUED SEPARATELY AS, “THE BANK OF NEW YORK MELLON,” AND “CWMBS, INC.”); AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION ARTURO RAMOS, Plaintiff, v. DLI PROPERTIES, LLC; NUSSBAUM, APC; RESIDENTIAL CREDIT SOLUTIONS, INC.; QUALITY LOAN SERVICES CORP.; All Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud On Plaintiff’s Title Thereto; DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-01257-JGB (KKx) DECLARATION OF TODD A. BOOCK IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT [Notice of Motion; Memorandum of Points and Authorities; Request for Judicial Notice; and [Proposed] Order Filed Concurrently Herewith] Date: May 15, 2017 Time: 9:00 a.m. Courtroom: 1 Judge: Hon. Jesus G. Bernal Case Filed: June 14, 2016 Case 5:16-cv-01257-JGB-KK Document 60-2 Filed 03/31/17 Page 1 of 4 Page ID #:1061 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90361996.1 1 DECLARATION OF TODD A. BOOCK 5:16-cv-01257-JGB (KKx) ISO DEFENDANTS’ MOTION TO DISMISS FAC I, Todd A. Boock declare and state: 1. I am an attorney licensed to practice in the State of California and Counsel at the law firm of Goodwin Procter LLP (“Goodwin”), counsel of record for defendants Residential Credit Solutions, Inc. (“RCS”); The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-12, Mortgage Pass Through Certificates, Series 2005-12 (erroneously sued separately as, “The Bank of New York Mellon,” and “CWMBS, Inc.”) (“BNYM”); and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Moving Defendants”) in the above-entitled action. I make this declaration in support of Moving Defendants’ Motion to Dismiss Plaintiff Arturo Ramos’ First Amended Complaint (“FAC”). I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. On March 23, 2017, at approximately 2:15 p.m., I called Plaintiff Arturo Ramos at his telephone number of record, 714-476-1378, to set up a meet and confer call. He answered, and I told him who I was and why I was calling - to set up a time to meet and confer regarding Moving Defendants’ Motion to Dismiss that day or on Friday, March 24, 2017. Mr. Ramos said that he was working at that time and on Friday and could not discuss it at that time. I asked if there was a time that I could call when he was not working, and he said that he would find out and call me back. I asked Mr. Ramos if he had my telephone number, and he said he could see the number on his telephone. I confirmed that his phone had 213-426- 2560, my office telephone number, and he said it did and he would call me back. Mr. Ramos did not call me again, and as of this writing, I have not received a call back from Mr. Ramos. 3. On March 24, 2017, at approximately 4:17 p.m., I called Mr. Ramos at 714-476-1378 and reached his voicemail. I left him a detailed voice message, indicating my name, the case I was calling about, who I represented, why I was Case 5:16-cv-01257-JGB-KK Document 60-2 Filed 03/31/17 Page 2 of 4 Page ID #:1062 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90361996.1 2 DECLARATION OF TODD A. BOOCK 5:16-cv-01257-JGB (KKx) ISO DEFENDANTS’ MOTION TO DISMISS FAC calling and that I would continue to call until we were able to meet and confer. As of this writing, I have not received a call back from Mr. Ramos. 4. On March 27, 2017, at approximately 3:52 p.m., I called Mr. Ramos at 714-476-1378 and reached his voicemail. I left him a detailed voice message, similar to the message described in Paragraph 3. As of this writing, I have not received a call back from Mr. Ramos. 5. On March 29, 2017, at approximately 4:05 p.m., I called Mr. Ramos at 714-476-1378 and reached his voicemail. I left him a detailed voice message, similar to the message described in Paragraph 3. As of this writing, I have not received a call back from Mr. Ramos. 6. Based on prior history with this case and the state court matter, it is my belief that further attempts to contact Mr. Ramos to discuss Moving Defendants’ Motion to Dismiss would be futile and would only further delay the resolution of this matter. I declare under penalty of perjury that the foregoing is true and correct. Executed this 31st day of March, 2017 at Los Angeles, California. /s/ Todd A. Boock Todd A. Boock Case 5:16-cv-01257-JGB-KK Document 60-2 Filed 03/31/17 Page 3 of 4 Page ID #:1063 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of Los Angeles, State of California, and not a party to the above-entitled cause. My business address is 601 S. Figueroa St., 41 st Floor, Los Angeles, CA 90017. On March 31, 201 7, I electronically filed the following document( s) using the CM/ECF system: DECLARATION OF TODD A. BOOCK IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have served the foregoing document(s) by Federal Express overnight mail, postage prepaid, to the following non-CM/ECF participant: Arturo Ramos 3659 Roselle Place Riverside, CA 92509 Plaintiff, Prose I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. Ex;~;;;;;;:;;~ 2017, at Los Angeles- 1 DECLARATION OF TODD A. BOOCK 5:16-cv-01257-JGB (KKx) ISO DEFENDANTS' MOTION TO DISMISS F AC Case 5:16-cv-01257-JGB-KK Document 60-2 Filed 03/31/17 Page 4 of 4 Page ID #:1064 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90362372.1 [PROPOSED] ORDER GRANTING 5:16-cv-01257-JGB (KKx) MOTION TO DISMISS FAC Todd A. Boock (SBN 181933) tboock@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street, 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Defendants RESIDENTIAL CREDIT SOLUTIONS, INC.; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2005-12, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-12 (ERRONEOUSLY SUED SEPARATELY AS, “THE BANK OF NEW YORK MELLON,” AND “CWMBS, INC.”); AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION ARTURO RAMOS, Plaintiff, v. DLI PROPERTIES, LLC; NUSSBAUM, APC; RESIDENTIAL CREDIT SOLUTIONS, INC.; QUALITY LOAN SERVICES CORP.; All Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud On Plaintiff’s Title Thereto; DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-01257-JGB (KKx) [PROPOSED] ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT Date: May 15, 2017 Time: 9:00 a.m. Courtroom: 1 Judge: Hon. Jesus G. Bernal Case Filed: June 14, 2016 Case 5:16-cv-01257-JGB-KK Document 60-3 Filed 03/31/17 Page 1 of 3 Page ID #:1065 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACTIVE/90362372.1 1 [PROPOSED] ORDER GRANTING 5:16-cv-01257-JGB (KKx) MOTION TO DISMISS FAC The Motion to Dismiss Plaintiff’s First Amended Complaint by defendants Residential Credit Solutions, Inc. (“RCS”); The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-12, Mortgage Pass Through Certificates, Series 2005-12 (erroneously sued separately as, “The Bank of New York Mellon,” and “CWMBS, Inc.”) (“BNYM”); and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Moving Defendants”), came on regularly for hearing on May 15, 2017, the Honorable Jesus G. Bernal presiding. Appearances by the parties were as noted on the record. The Court, having reviewed the papers filed in support of, and in opposition to, the Motion, having considered all of the evidence, and for good cause shown, hereby orders as follows: 1. Moving Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint is GRANTED without leave to amend; 2. The case is dismissed as to Moving Defendants with prejudice; and 3. Moving Defendants shall submit a proposed judgment. Dated: Hon. Jesus G. Bernal U.S. District Judge Case 5:16-cv-01257-JGB-KK Document 60-3 Filed 03/31/17 Page 2 of 3 Page ID #:1066 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 PROOF OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of Los Angeles, State of California, and not a party to the above-entitled cause. My business address is 601 S. Figueroa St., 41 st Floor, Los Angeles, CA 9001 7. On March 31, 201 7, I electronically filed the following document( s) using the CM/ECF system: [PROPOSED] ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have served the foregoing document(s) by Federal Express overnight mail, postage prepaid, to the following non-CM/ECF participant: Arturo Ramos 16 3659 Roselle Place Riverside, CA 92509 Plaintiff, Prose 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. Executed on March 31, 2017, at Los Angeles, ~ Angie Zuniga-Garcia . , (Type or print name) ~ ACT!VE/90362372. l 1 rPROPOSED] ORDER GRANTING MOTION TO DISMISS F AC 5:16-cv-01257-JGB (KKx) Case 5:16-cv-01257-JGB-KK Document 60-3 Filed 03/31/17 Page 3 of 3 Page ID #:1067