Charles G White vs Select Portfolio Servicing Inc Et Al

Opposition

Cal. Super. - 2nd Dist.December 11, 2015

~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 STEPHEN R. GOLDEN & ASSOCIATES Stephen R. Golden, SBN 163366 127 N. Madison Ave.., Suite 101B Pasadena, California 91101 P: (626) 584-7800 F: (626) 795-5940 Email: businesslaw @stephengoldenlaw.com Attorneys for Plaintiff CHARLES G. WHITE SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CHARLES G. WHITE, an individual; Plaintiff, VS. SELECT PORTFOLIO SERVICING, INC. , a Corporation; BANK OF AMERICA, a National Association; 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 2006-OA11, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-OA11; ALL PERSONS UNKNOWN CLAMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE REAL PROPERTY KNOWN AS “1410 SUNSET AVENUE, PASADENA, CA 91103”; and DOES 1 to 50, inclusive Defendants. Case No. BC604118 [Assigned to Hon. Michelle Williams Court] PLAINTIFF’S OPOSITION TO MOTION TO EXPUNGE LIS PENDENS Date: September 12, 2017 Time: 1:30 a.m. Dept: 74 RESERVATION NO.: 161114174084 Complaint Filed: December 11, 2015 Trial Date: None Plaintiff, CHARLES G. WHITE, an individual, hereby submits his opposition to the Motion to Expunge Lis Pendens of Defendants, SPS, Inc., and Bank of New York Mellon, as Trustee. as follows: I" I" 1 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Alvarez v. BAC Home Loans Servicing, 228 Cal. App. 4" 941 -wcvvvvvviiiiiniiiiiiiiiiiiininans 11 Lona v. Citibank, 202 Cal, App, 47 8D, 113 ssessmsnsusssnasessmsnsasnsssasasss n sasnssadsssss s sass a s iss sa sa s is 11 Mabry v. Aurora Loan Services, 185 Cal. App. 4th DIS ss ss swsomn suvsin on assminn Seven So Sus Rin STs TR AREER SEE 11 Menan v. U.S. Bank Nat. Assn. ED. Cal. 2013 «ccoeeeeeeimieiiiiiiiiiiiiiinii ieee eeaeaeas 11 Peery v. Superior Court, 29 Cal.3d 837, 842, 845 (1981 );-+++++veverererereremeieueueieinieiiiiieiiieieieieieines 9,13 Ranchito Ownership Co. v. Superior Court (1982) 130 Aal. App. 3d 764, 773. «+veeevveersveennneennnn 8 United Professional Planning, Inc. v. Superior Court, 9 Cal. App.3d 377, 385 (1970 «++--vvvveeennenee 9 Rules Business & Professions Code, § 17200..............couuueeeieeccuueeeeiiieeeeeeieeeeesivieeeseisaeaeesssseae ss ss aeaesnns 12 Code of Civil Procadire § 705. Desesssessemsss vosesssesssss sss es sss ess esse sams sa ae ssa sa 553 6, 7 Code of Civil Procedure § 761.010(b) CR STE 6 SEE SRT SR SEI SRE 0 GH RE SS SR ST SR Re 7 Code of Civil Procedure § 761.010(b), PP 7 Code of Civil Procedure $8 A005, 3. Lew mwessmsermmmmerommaerssmssens oss os sr ise sess as ss srs sso spo ree spss vsessesss 6 2 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. MEMORANDUM OF POINTS AND AUTHORITIES - INTRODUCTION...................... 4 II. FACTUAL BACKGROUND... eee eee eee eee eee eee eee 4 II. THE COURT HAS AMPLE AUTORITY NOT TO EXPUNGE THE LIS PENDENS........ 6 A. Plaintiff’s Lis Pendens is Proper under California Law.................ooooiiiiii. 4 B. Under California Law the Recordation of a Lis Pendens is Required...................... 4 IV. THE LIS PENDENS SHOULD NOT BE EXPUNGED SINCE THERE IS NO PROCEDURAL DEFECT, AND EVEN IF THERE IS, THERE IS NO PREJUDICE TO DEEERIDARITS «sis saunas 53 samamnes sss 5 asamnss 5s anus £55 Sassmsass § 53 pAREHaE3 8 3 § 3 SAAMSHEH § § 55 3ERBELS 7 V. THE LIS PENDENS SHOULD NOT BE EXPUNGED ON STATUTORY GROUNDS A. Plaintiff’s Complaints Clearly Plead Claims Relating to Real Property.................. 8 B. Because Plaintiff’s Quiet Title, and Violation of Civil Code Section 2923.55 have survived Defendants’ demurrer, the Lis Pendens Should Remain. .............oooiiiiiiiiiiiiiiniin. 8 1. Tendered is not required for Quiet Title Claim.................coooiiiiiiin... 10 2. Plaintiff can establish all elements of his real property claims.................... 11 VL CONCLUSION. «Lotte eee eee eee ee eee eee ee eee eee 13 3 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION By this action, Plaintiff seeks redress for the unlawful conduct committed by Defendants and their predecessors in wrongfully attempting to foreclose on Plaintiff’s longtime residence. Defendants SPS, Inc and BONY have filed two demurrers to Plaintiff's complaints and as a result of the demurrer to the Second Amended Complaint heard on May 18, 2017, the Court sustained the demurrer to the first cause of action for lack of standing with prejudice, overruled the demurrer to the second cause of action for violation of Civil Code Section 2923.55, overruled the demurrer to the third cause of action for Quiet Title, and sustained the demurrers to the remaining causes of action, with twenty days leave to amend. As a result, Plaintiff has filed a Third Amended Complaint addressing the issues raised in the previous demurrer and the ruling by the Court. In Plaintiff's Third Amended Complaint (“TAC”), Plaintiff sets forth the basis for his claims, and methodically pleads all necessary elements of his claims for causes of action as follows: (1) Lack of Pre-Notice Default (Civil Code §2923.55), (2) Quiet Title, (3) Violation of Fair Debt Collection Act(Cal. Civil Code, Section 1788.1, (4) Violation of Civil Code § 2943, (5) Violation of RESPA(12 U.S.C. § 2605(e) et seq.), (6) Negligent Loan Modification Application and Review, (7) Violation of Business & Professions Code, Section 17200. II. FACTUAL BACKGROUND A. Verified Allegations in Third Amended Complaint: This action arises out of unlawful acts related to the Subject Property, located in the State of California, with a legal address of 1410 SUNSET AVENUE, PASADENA, CA 91103. (See TAC, 13) On or about May 16, 2006, a Deed of Trust was recorded, which named Plaintiff as Trustor, COUNTRYWIDE HOME LOANS, INC., as Lender, and RECON TRUST COMPANY, a National Association, as Trustee. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (“MERS”) is named as Nominee for Lender and Lender’s successor’s and assigns. ( See TAC, | 14) On or about 2011, Plaintiff, an employee of the State of California, suffered from statewide budget cuts and had his salary reduced and reduced again, making it difficult for him to continue making his mortgage payments. (See TAC, | 15) 4 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about 2012, Plaintiff continued to suffer financial difficulties, when reduced work hours, furlough days, and the elimination of overtime opportunities, and had no choice but to file for bankruptcy. (See TAC, 16) On July 1, 2015, Notice of Default was recorded against Plaintiff’s property. Plaintiff has alleged that prior to the recording of the Default, Defendants failed to comply with Civil Code §§ 2923.5 and 2923.55 and that he was not given the opportunity to discuss his foreclosure options with Defendants, and that the Defendants’ attestation in the Notice of Default that they complied with the statute is false. (See TAC, Paragraph 20). Plaintiff has further alleged in his TAC that the Defendants subsequently accepted a loan modification application from Plaintiff, but that Defendants continuously misplaced the paperwork that Plaintiff submitted, as well as failed to communicate with Plaintiff. Further, Plaintiff has alleged that Defendants negligently calculated Plaintiff’s income, leading to a denial of his loan modification application. (See TAC, Paragraphs 81-84). Furthermore, Plaintiff has alleged that in negligently calculating Plaintiff’s income, they did not take into account that part of the paystub income was “not reasonably expected to continue, and should have been averaged over a year, with use of Plaintiff’s past tax returns, instead of averaged over a 6-month period. (See TAC, Paragraph 84). On July 17, 2017, Plaintiff filed his Third Amended Complaint (SAC) alleging causes of action against the Defendants for (1) Lack of Pre-Notice Default Outreach in violation of Civil Code Section 2923.55, (2) Quiet Title, (3) Violation of Fair Debt Collection Act (Civil Code Section 1788.1), (4) Violation of Civil Code Section 2943, (5) Violation of Real Estate Settlement Procedures Act(12 U.S.C. § 2605(e) et seq., (6) Negligent Loan Modification Application and Review, and (7) Violation of Business & Professions Code, Section 17200. B. Procedural Background: At the time that Defendants’ prior counsel filed this Motion to Expunge Lis Pendens on or about November 16, 2016, the procedural status of the case was different than it is now. First, the operative pleading is the Third Amended Complaint, and not the First Amended Complaint referred to in the Motion. Secondly, two additional demurrers by SPS and BONY have been heard and the court has overruled the demurrers to the violation of Civil Code §2923.55 and quiet title causes of action against all defendant. and it is anticipated that SPS and BONY will file a demurrer to the TAC. Finally, Plaintiff has settled against co-defendant, Bank of America, the prior servicer of the subject loan, and the action remains pending against the 5 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 servicer and alleged beneficial owner of the note secured by the deed of trust on the subject property. Plaintiff contends that the Motion to Expunge Lis Pendens is premature since there has not been a ruling as to the anticipated demurrer to the Third Amended Complaint. Furthermore, since the Court has already overruled the demurrer to the quiet title cause of action, the Motion should be denied since the pleadings contain a real property claim. III. THE COURT HAS AMPLE AUTORITY NOT TO EXPUNGE THE LIS PENDENS A. Plaintiff’s Lis Pendens is Proper under California Law Defendants’ motion to expunge Plaintiff’s lis pendens under Code of Civil Procedure §§ 405.31 and 405.32 et seq., fails for the following reasons: 1) The recordation of a lis pendens is a statutory requirement of a quiet title action, and 2) Plaintiffs has stated several real property claims in his Complaint. A “lis pendens” is a notice of the pendency of an action in which a real property claim is alleged. Code of Civil Procedure § 405.2. A notice of pendency of action provides constructive notice to purchasers or encumbrancers of real property of any pending actions affecting title to or possession of the real property and enables those parties to find notice of pending litigation in the recorder’s office in which the real property is located. Combined with recordation of the notice, it furnishes the most certain means of notifying all persons of the pendency of the action and to warn them against any attempt to acquire a legal or equitable interest in the real property. Therefore, a lis pendens protects not only the Plaintiffs from claims arising after the initiation of her claim, but also the public at large, who deserves notice that the title to property that they are buying is in dispute. Title to, and the right to possession of, Plaintiff’s long-time home is at the heart of this litigation. The lis pendens is necessary to preserve Plaintiff’s rightful interest of in his residence during the pendency of this lawsuit through appeal, and provide notice to all potential buyers of his residence of her rightful claim. B. Under California Law the Recordation of a Lis Pendens is Required Under Code of Civil Procedure § 761.010(b), the recordation of a notice of pendency of action is and was required in Plaintiff’s case. Statutorily, a plaintiff in a quiet title action must 6 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 record, immediately on commencement of the action, a lis pendens with the county recorder of each county in which any real property described in the complaint is located. Code of Civil Procedure § 761.010(b). Plaintiff has stated a claim for quiet title against the Defendants. Therefore, Defendant’s motion should be denied in its entirety because Plaintiff’s lis pendens is required under Code of Civil Procedure § 405.2. IV. THE LIS PENDENS SHOULD NOT BE EXPUNGED SINCE THERE IS NO PROCEDURAL DEFECT, AND EVEN IF THERE IS, THERE IS NO PREJUDICE TO DEFENDANTS The defendants argue that the Lis Pendens should be expunged due to the procedural failure of allegedly not filing the Notice of Lis Pendens with the Court. However, the recorded Notice of Lis Pendens was served on the agents for all known defendants at the time it was recorded. (See also Plaintiff’s Request for Judicial Notice filed concurrently herewith.) The defendants had knowledge of the recording of the Lis Pendens from the date that it was recorded as can be seen by the Proof of Service attached to the Notice of Filing Lis Pendens attached as Exhibit “A.” to Plaintiff’s Request for Judicial Notice filed concurrently herewith.) Accordingly, there is no prejudice to the defendants for any alleged defect in the filing of the Notice of Lis Pendens. Additionally, any defect is capable of remedy since there has been no prejudice to the defendants, and Plaintiff is filing the Notice of Filing Lis Pendens with this Opposition. Even if there is a technical defect, which Plaintiff does not believe that there has been, it would not prevent the Plaintiff from filing a second Lis Pendens to remedy any alleged defect. That is exactly the Court’s ruling in the Mcknight case cited by defendants in their Motion. See McKnight v. Superior Cort (Faber) (1985) 170 Cal. App. 3d at 303. See also Ranchito Ownership Co. v. Superior Court (1982) 130 Aal. App. 3d 764, 773. The Rey Sanchez Investments case cited by defendants in their Motion is also inapplicable since it related to service of Notice of Lis Pendens, and in this case a proof of service was recorded with the lis pendens and served on all parties to whom the real property claim is adverse. Therefore, 7 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff substantially complied with the requirements of the code section. See Plaintiff’s Request for Judicial Notice filed concurrently herewith. V. THE LIS PENDENS SHOULD NOT BE EXPUNGED ON STATUTORY GROUNDS A. Plaintiff’s Complaints Clearly Plead Claims Relating to Real Property In each of his three (3) Verified Complaints, Plaintiff stated several claims, all based upon the Defendants’ wrongful attempts to gain title to his home. (See Section IL.B. Procedural Background, of this Opposition.) The causes of action in Plaintiff’s Third Amended Complaint clearly demonstrate that, the “substance of the dispute” is a claim that affects title to or possession of her real property. In order for the Court to grant a Motion to Expunge Lis Pendens, the Court must find (1) That the pleadings on which the notice is based does not contain a real property claim, (Cal. Code Civ. Proc. § 405.31) or, (2) That the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The first part of the test is satisfied since the Verified Complaints filed by Plaintiff included a Quiet Title cause of action and that Defendants’ demurrer to that cause of action was overruled by the Court. Furthermore, Cal. Code Civ. Proc. § 405.4 states that “Real Property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property. In this case, not only did the Court overrule Defendants’ demurrer to the Quiet Title cause of action and the violation of Civ. Code Section 2923.55 cause of action, there are five other causes of action alleged by Plaintiff which, if meritorious, would affect title to or the right to possession of the subject real property. Accordingly, Plaintiff has satisfied the first requirement set forth in Civil Code Section 405.31, set forth above, and the Court should deny Defendants’ Motion on this ground. B. Because Plaintiff’s Quiet Title, and Violation of Civil Code Section 2923.55 have survived Defendants’ demurrer, the Lis Pendens Should Remain 8 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Applicant argues that the lis pendens should be expunged because the Plaintiff cannot establish the probable validity of the real property claim. However, this argument does not justify expungement. Here, there are existing real property claims that have been set forth in Plaintiffs’ Third Amended Complaint that have not been resolved by way of demurrer or trial. Peery v. Superior Court, 29 Cal.3d 837, 842, 845 (1981); United Professional Planning, Inc. v. Superior Court, 9 Cal. App.3d 377, 385 (1970). Where the appellant makes substantial contentions of error and has made a verified declaration or complaint of good faith which demonstrates the proof that the issues are likely to be resolved in his favor should not by itself justify expungement. Peery, supra, 29 Cal.3d at 845. Even “a weak case does not by itself demonstrate an improper motive” nor justify expungement. Peery, supra, 29 Cal.3d at 845. However, Plaintiff and his counsel believe that their Third Amended Complaint is anything but weak. Additionally, in order for a Court to grant a Motion to Expunge Lis Pendens, it must find that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (See Cal. Code Civ. Proc. § 405.32.) In this case, the Plaintiff has filed three (3) verified complaints setting forth the basis of his claims, and specifically, his claims to the subject real property, his longtime residence. Plaintiff has alleged that Defendants were negligent in the processing of his loan modification application and as result thereof, he was denied the loan modification, which affects his rights to the property. ( See TAC, Paragraphs 79-88, generally). Plaintiff has also alleged that Defendants failed to advise him of his alternatives to foreclosure prior to recording a Notice of Default, violating Civil Code Section 2923.55, and that this affected his rights to the subject property. (See TAC, Paragraph 20, and Paragraphs 21-33, generally.) Plaintiff has also testified in his verified complaints that Defendants breached their duties in complying with Civil Code Section 2943, and the Real Estate Settlement Procedures Act(12 U.S.C. § 2605(e), in that the response was deficient for both and omitted essential documents. Plaintiff has alleged that this omission was done with the intent of depriving Plaintiff of his home. 9 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (See TAC, Fifth and Sixth Causes of Action generally, and TAC, Paragraphs 64, 66, 76, and 78, specifically.) Defendants, on the other hand, have filed a Request for Judicial Notice of documents that have been recorded, and state that these documents refute the Plaintiff’s contentions. However, not only has Plaintiff objected to the admissibility of these recorded documents for the purpose of asserting the truth of the statements set forth therein because they are hearsay (See Objections to Request for Judicial Notice filed concurrently herewith), but he has refuted the documents in his verified complaints. That is, even though the Defendants argue that Plaintiff was advised of his alternative to foreclosure prior to the recording of the Notice of Default, Plaintiff has directly rebutted this statement (contained in Defendants Notice of Compliance (See TAC, Paragraph 20). This is also true of the evidence contained in the TAC rebutting any contention by Defendants that they complied with Civil Code Section 2943, or RESPA. Based upon the foregoing, Plaintiff submits, without a full and complete evidentiary hearing on the issues presented in the TAC, he has established the probability of his real property claim by his direct testimony contained in the verified complaints, whereas Defendants rely on recorded documents that have been rebutted by Plaintiff’s testimony, and which contain objectionable hearsay. Accordingly, for the purpose of this Motion, and without a full evidentiary hearing, Plaintiff submits that he has satisfied the requirement that he has established by the preponderance of the evidence the probable validity of the real property claim. 1. Tendered is not required for Quiet Title Claim. Not only is tendered not required as alleged in Plaintiff’s Third Amended Complaint, because of the allegations that the sale is void and he is excused from tender, but he has allegations in the Third Amended Complaint against the defendants for other claims which would also excuse tender. Defendants contend that Plaintiff’s claim for quiet title fails because Plaintiff failed to discharge the Note. However, discharge, or tendering of the unpaid debt, is not required here. (See Alvarez v. BAC Home Loans Servicing, 228 Cal. App. 4" 941 (2014)(“Tender of the unpaid debt 10 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is not necessarily required, however, to set aside a a sale in other circumstances, including an action seeking relief based on allegedly fraudulent and unlawful business practices relating to the marketing of the subject loan). See, also, e.g., Menan v. U.S. Bank Nat. Assn. E.D. Cal. 2013) 924 F. Supp. 2d 1151, 1160 (“The law does not require Plaintiff to tender the purchase price to a trustee who has no right to sell the property at all.”) Plaintiff’s right to bring a quiet title action is affirmed by the Homeowners Bill of Rights, and as such, no tender is required. Mabry v. Aurora Loan Services, 185 Cal. App. 41208 (2010). In addition, no tender is required where it would be inequitable to do so. See, e.g., Bingham v. Ocwen Loan Servicing, LLC, 2014 WL 1494005, at *6-7 (N.D.Cal. Apr. 16, 2014) (finding tender inequitable where it was unclear if injunctive relief or damages available to borrowers); Moya v. CitiMortgage, Inc., 2014 WL 1344677, at *5(S.D. Cal. Mar. 28, 2014) (finding tender inequitable where servicer accepted borrower’s TPP payments and foreclosed anyway); Hmboldt Sav. Bank v. McCleverty, 161 Cal. 285, 291 (1911); Fontenot v. Wells Fargo Bank, 228 Cal. App. 4™ 1368-69 (2014) (finding it would be inequitable to require tender where the circumstances being litigated-servicer’s failure to comply with HUD’s rules governing FHA loans-show that borrowers were unable to tender the amount due on their loan); Lona v. Citibank, 202 Cal. App. 4™ 89, 113 (2011)( outlining all the reasons for not requiring tender, including when it would be unfair to the borrower.) In this case, Plaintiff has his Third Amended complaint currently pending in this Court and it has not resolved the tender issue as to the defendants. As such, Defendants’ attempt to have the Lis Pendens expunged is premature and Plaintiff should be entitled to a resolution on the full merits of his claims. Plaintiff asserts that the allegations in the Third Amended Complaint establish his claims sufficiently to defeat Defendants’ Motion since Applicant has offered no admissible evidence controverting the verified statements in Plaintiff's complaints. 2. Plaintiff can establish all elements of his real property claims. Applicant contends that Plaintiff cannot establish all the elements of her real property claims, but there has been no presentation of the evidence, nor even a resolution of the current demurrer of defendants anticipated to take place after the hearing on the Motion to Expunge Lis Pendens. Applicant cannot expect Plaintiff to prove his entire case in response to this Motion to 11 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Expunge. The Applicant’s Motion to Expunge is premature because there has been no finding of fact regarding the multiple allegations contained in Plaintiff’s Third Amended Complaint. Plaintiff has alleged causes of action for Lack of Pre-Notice Default Outreach, and Quiet Title and the defendants’ demurrer to these causes of action have been overruled. Furthermore, there are still causes of action for Violation of Fair Debt Collection Act (C.C. § 1788.1), violation of C.C. §2943, violation of RESPA, negligent loan modification Application and Review, and Violation of Business & Professions Code, § 17200, which should survive defendants’ anticipated demurrer, and Plaintiff should have the right to present evidence to support these claims, and defendants should not be allowed to circumvent an evidentiary hearing to shortcut the process of expunging the lis pendens. If Plaintiff is successful, the Trustee’s Sale may never take place, and the issue of title to the property litigated. Since the allegations against the Defendants contain multiple claims, including seven causes of action, the Court should allow the Lis Pendens to stand pending a full and complete resolution of these claims. As stated previously, if the allegations in the Third Amended Complaint are proven, the Court could cancel the instruments that were recorded providing for the sale of the property, and this problem should not be compounded by allowing Applicant to expunge the lien and sale the property to another individual or entity. Defendants may argue that they will “suffer substantial damage during the pendency of this suit.” However, Defendants conveniently fail to set forth what “substantial damage” they will suffer. The Defendants have more resources than Plaintiff and will suffer little prejudice to simply allow Plaintiff claims to be heard on the merits. Plaintiff, however, is at risk of being removed from his longtime home before the Court has the opportunity to adjudicate the issues raised herein, depriving them of any adequate remedy for the wrongs committed by Defendants. Plaintiff is at risk of suffering the irreparable harm of public humiliation and loss of reputation in the community in which she lives and works. Further, Plaintiff's longtime home is unique and if Defendants remove the Lis Pendens on the Property and sales it to a potential third party, the innocent third party will have no way of knowing of the claims being made by Plaintiff against the property. These injuries would be 12 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS I o e NN 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 irreparable, with no adequate remedy at law. The requirement to post a bond will add additional prejudice and harm to Plaintiff, and it is not warranted in this case. Even though plaintiffs believe that a bond is not necessary, the court entertaining the motion to expunge has broad discretion to require the posting of a bond to protect the interests of the losing party. Peery, supra, 29 Cal.3d at 845. VI. CONCLUSION For the foregoing reasons, Defendants should not be allowed to expunge the lis pendens without a full and complete evidentiary hearing, and Defendants motion should be denied in its entirety. Dated: August 29, 2017 Respectfully submitted, STEPHEN R. GOLDEN & ASSOCIATES \ / / / 2 By: / J 1 / J / Serb AC [Lb ; Attorrieys forPlainti PROOF OF SERVICE 13 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS © © NN 10 11 12 13 14 15 16 17 18 19 20 21 22 2 24 25 26 27 28 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the City and County of Los Angeles, California. I am over the age of 18 and not a party to the within action. My business address is 127 N. Ma dison Avenue, Suite 101B, Pasadena, CA 91101. On the date set forth below, I served the following document(s) describ ed as: OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS On the interested parties in this action by placing true copies thereof enclose d in sealed envelopes addressed as follows: ; Attorney Telephone/ Facsimile/Email Party Robert J. Gandy, Esq. Tel: (949) 442-7110 Attorneys for Defendants Elizabeth C. Farrell, Esq. Fax: (949) 442-7118 Bank of America, N.A. SEVERSON & WERSON Email: rig@severson.com The Atrium 19100 Von Karman Ave. Ste, 700 | Sci@severson.com Irvine, CA 92612 Mark Joseph Kenney, Esq. Tel: (415) 398-3344 Attorneys for Defen dants SEVERSON & WERSON B Bank of America, N.A. One Embarcadero Center, Ste. 2600 Fax: (415) 956-0439 San Francisco, CA 94111 YU MOHANDESI, LLP Tel: (213) 377-5502 Attorne ys for Defendants Jordan S. Yu Select Portfolio Servicing, 633 West Fifth Street, Suite 2800 Inc. Los Angeles, CA 90071 [1 (MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. [X] (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed as stated above with fees for overnight delivery paid or provided for. 14 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 [1] (MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed and provided them to a professional messenger service for service. A separate Personal Proof of Service provided by the professional messenger will be filed under separate cover. [J] (FACSIMILE) I faxed the documents to the persons at the fax numbers listed. [J (E-MAIL or ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed, I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [] (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addresses listed above by electronic mail at the email address(s) set forth above pursuant to Fed. R. Civ. P.5. (d)(1). “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.(d)(1). 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 laws of the State of California that the above is true and correct. [] (Federal) Ideclare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. i Executed on August 29, 2017, at Pasadena, California. Stephanie Zuleta - (Type or print name) 15 OPPOSITION TO MOTION TO EXPUNGE LIS PENDENS