Freiman v. Bank of America National Association et al

MOTION to Dismiss for Failure to State a Claim

S.D. Cal.September 30, 2016

11 12 13 14 L oc ke L or d L L P 19 15 16 20 21 22 23 24 25 26 27 28 LOCKE LORD LLP Regina J. McClendon (SBN 184669) rmcclendon@lockelord.com Meagan S. Tom (SBN 273489) meagan.tom@lockelord.com 44 Montgomery Street, Suite 4100 San Francisco, CA 94104 Telephone: (415) 318-8810 Fax: (415) 676-5816 1 2 3 4 5 6 7 Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon fka The Bank of New York As Trustee For the Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 8 9 10 SUSAN KOGA FREIMAN, an individual, Plaintiff, vs. BANK OF AMERICA NATIONAL ASSOCIATION; GREEN TREE SERVICING, LLC; DITECH FINANCIAL, LLC, a Delaware limited liability company; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2004-12; and DOES 1 through 50, inclusive, Defendants. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CASE NO.: 3:16-cv-02394-BAS- WVG DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: October 31, 2016 PLACE: Courtroom 4B NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Complaint Filed: August 18, 2016 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 1 of 18 L oc ke L or d L L P 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 15 16 17 1 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD PLEASE TAKE NOTICE that on October 31, 2016, defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) ("Ditech") and The Bank of New York Mellon flca The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 ("BONY") (collectively "Moving Defendants"), through their undersigned counsel, will bring for hearing, in Courtroom 4B of the United States Courthouse located at 221 West Broadway, Suite 4145 San Diego, CA 92101, their Motion to Dismiss the Complaint filed by plaintiff Susan Koga Freiman ("Plaintiff'). Defendants seek dismissal of each cause of action in the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that each of these causes of action fails to state a claim upon which relief can be granted. This Motion is made following the conference of counsel which took place on September 23, 2016. This Motion is based on this Notice of Motion and Motion, the below Memorandum of Points and Authorities, Defendants' Request for Judicial Notice, the pleadings, papers and records on file in this action, and such oral argument as may be presented at the time of the hearing. Dated: September 30, 2016 Respectfully submitted, LOCKE LORD LLP 21 By: /s/ Meagan S. Tom Regina J. McClendon Meagan S. Tom Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon flca The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 22 23 24 25 26 27 28 1 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 2 of 18 STATEMENT OF ISSUES TO BE DECIDED 1. Whether Plaintiff's first cause of action for "Breach of Contract" states a claim upon which relief can be granted. 2. Whether Plaintiff's second cause of action for "Unfair Business Practices" states a claim upon which relief can be granted. 3. Whether Plaintiff's third cause of action for "Violation of the Federal Fair Debt Collections Practices Act" states a claim upon which relief can be granted. 4. Whether Plaintiff's fourth cause of action for "Declaratory Relief" states a claim upon which relief can be granted. 10 11 12 13 19 20 21 22 23 24 25 26 27 28 2 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG L oc ke L or d L L P 1 2 3 4 5 6 7 8 9 Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 3 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 L oc ke L or d L L P 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ...................................................................................................... 1 II. STATEMENT OF FACTS ........................................................................................ 1 III. LEGAL ARGUMENT .............................................................................................. 3 A. Applicable Legal Standard ........................................................................................ 3 B. The Complaint Does Not Satisfy Rule 8(a) ............................................................ 4 C. Plaintiff's First Cause Of Action Fails To State A Claim Against Moving Defendants .................................................................................................... 5 D. Plaintiff's Second Cause Of Action Fails To State A Claim Against Moving Defendants .................................................................................................... 6 E. Plaintiff's Third Cause Of Action Fails To State A Claim Against Moving Defendants .................................................................................................... 9 F. Plaintiff's Fourth Cause Of Action Fails To State A Claim against Moving Defendants ................................................................................................. 10 IV. CONCLUSION ........................................................................................................ 11 i MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 4 of 18 TABLE OF AUTHORITIES Page(s) Cases Aaron v. Aguirre, No. 06-1451, 2007 WL 959083 (S.D. Cal. Mar. 8, 2007) Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) .................................................................................... Altman v. PNC Mortg., 850 F.Supp.2d 1057 (E.D. Cal., 2012) ..................................................................... Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................. Bernardo v. Planned Parenthood Fed. of America, 115 Cal. App. 4th 322 (2004) .................................................................................. Biederman v. Northwest Trustee Services, Inc., Case No. 15-02282, 2015 WL 3889371 (C.D. Cal. Caballero v. Ocwen Loan Serv., No. 09-cv-01021-RMW, 2009 WL 1528128 (N.D 2009) ...................................................................... Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (2000) .............................................................................................. 9 Corazon v. Aurora Loan Services, 2011 WL 1740099 (N.D. Cal. 2011) ........................................................................ 5 Daro v. Superior Court, 151 Cal. App. 4th 1079 (2007) ................................................................................ 9 Del Monte Int'l GmbH v. Del Monte Corp., 995 F.Supp.2d 1107 (C.D. Cal. 2014) .................................................................... 11 DeLeon v. Wells Fargo Bank, NA., 2011 WL 311376 (N.D. Cal. Jan. 28, 2011) ............................................................. 9 ii MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG 4 1 8 3, 4 3, 4 7 Jun. 24, 2015) ................. 10, 11 10 Cal. May 29, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 L oc ke L or d L L P 19 15 16 20 21 22 23 24 25 26 27 28 Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 5 of 18 Gauvin v. Trombatore, 682 F.Supp. 1067 (N.D. Cal. 1988) .......................................................................... 4 Glenn K Jackson Inc. v. Roe, 273 F.3d 1192 (2001) .............................................................................................. 9 Khoury v. Maly's of Cal., Inc., 14 Cal. App. 4th 612 (1993) ................................................................................ 7, 8 Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005) .................................................................................... 2 Krantz v. BT Visual Images, LLC, 89 Cal. App. 4th 164 (2001) ................................................................................ 7, 9 Lai v. Quality Loan Serv. Co., Case No. CV 10-02308 PSG, 2010 WL 3419179 (C.D. Cal. Aug.26, 2010) ...................................................................................................................... 11 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988) .................................................................................... 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Newman v. One West Bank, FSB, 2010 WL 797188 (C.D. Cal. Mar. 5, 2010) ............................................................. 4 Otworth v. S. Pac. Transp. Co., 166 Cal.App.3d 452 (1985) ..................................................................................... 5 Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009) .................................................................... 7 Pareto v. F.D.I. C., 139 F.3d 696 (9th Cir. 1998) .................................................................................... 2 Perez v. Wells Fargo Bank, NA., 2011 WL 3809808 (N.D. Cal. Aug, 29, 2011) ......................................................... 8 Pratrap v. Wells Fargo Bank, NA., No. 12-cv-06378-MEJ, 2014 WL 3884413 ............................................................ 10 L oc ke L or d L L P 15 16 17 18 19 20 21 22 23 24 25 26 In re Sagent Tech., Inc., 278 F.Supp.2d 1079 (N.D. Cal. 2003) ...................................................................... 5 27 Scripps Clinic v. Superior Court, 28 108 Cal.App.4th 917 (2003) .................................................................................... 7 iii MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 6 of 18 L oc ke L or d L L P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 15 16 17 Simila v. American Sterling Bank, 2010 WL 3988171 (S.D. Cal. Oct. 12, 2010) ........................................................... 7 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) .................................................................................... 3 In re VerifoneSecs. Litig., 11 F.3d 865 (9th Cir. 1993) ..................................................................................... 1 Wall St. Network, Ltd. v. N.Y Times Co., 164 Cal.App.4th 1171 (2008) .................................................................................. 5 Western Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) .................................................................................... 2 Zhuravlev v. BAC Home Loans Servicing, LP, 2010 WL 2873253 (N.D. Cal. July 20, 2010) ........................................................ 10 Statutes and Rules California Business and Professions Code section 17200 ................................. 6, 7, 8, 9 California Business and Professions Code section 17204 ......................................... 7, 9 Declaratory Judgment Act .................................................................................... 10, 11 Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 .......................................... 9, 10 Federal Rule of Civil Procedure 8(a) ......................................................................... 4, 5 Federal Rule of Civil Procedure 12(b)(6) .................................................................. 1, 3 20 21 22 23 24 25 26 27 28 iv MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 7 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 L oc ke L or d L L P 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) ("Ditech") and The Bank of New York Mellon &a The Bank of New York As Trustee For The Certificate Holders of The CWABS, Inc. Asset-Backed Certificates, Series 2004-12 ("BONY") (collectively "Moving Defendants") move to dismiss the Complaint filed by plaintiff Susan Koga Freiman ("Plaintiff') and each of its purported claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff's Complaint fails to state a claim upon which relief can be granted. The instant lawsuit relates to a mortgage loan that Plaintiff received on October 21, 2004, secured by real property located at 17161 Alva Road, Unit 2823, San Diego, California (the "Property"). Compl., ¶¶ 8, 9. Plaintiff alleges that in 2014, she received a loan modification, in which the reported principal balance would be reduced by roughly half, to $202,773.45. Compl., ¶ 13. Plaintiff's allegations appear to indicate that Ditech, did, indeed, abide by the purported loan modification. Compl., rlf 17, 20. However, following servicing transfer, Plaintiff alleges that non-moving defendant, Bank of America, N.A. ("BANA"), failed to honor the purported principal balance reduction when she requested a pay-off statement in April 2016 during an attempt to sell the Property and compiled a false loan modification that did not reflect the terms agreed to. Compl., ¶ 19. As discussed at length below, each of Plaintiff's claims fails as a matter of law. Thus, Moving Defendants respectfully request that this Court grant this Motion. II. STATEMENT OF FACTS On a motion to dismiss, the Court accepts as true the facts properly pleaded in the complaint, but not conclusions of law. Alperin v. Vatican Bank, 410 F.3d 532, 541 (9th Cir. 2005); In re VerifoneSecs. Litig., 11 F.3d 865, 868 (9th Cir. 1993). In resolving a motion to dismiss, the Court generally accepts as true all material 1 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 8 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 allegations in the complaint, as well as reasonable inferences to be drawn from them. Pareto v. FDIC., 139 F.3d 696, 699 (9th Cir. 1998). The Court, however, need not accept as true any unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Also, "it is proper for the district court to 'take judicial notice of matters of public record outside the pleadings' and consider them for purposes of the motion to dismiss." Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); accord Kourtis v. Cameron, 419 F.3d 989, 994 n. 2 (9th Cir. 2005). In keeping with these rules, and without conceding for any other purpose the truth of Plaintiff's allegations, Moving Defendants set forth the facts pertinent to this motion. On or about October 21, 2004, Plaintiff executed a promissory note in the original principal amount of $360,500 with America's Wholesale Lender (the "Loan"). Compl., ¶ 9; Request for Judicial Notice ("RJN"), Exh. 1. This loan was secured by a Deed of Trust recorded against the Property on October 25, 2004. Id. Plaintiff alleges that she applied for and received a loan modification in October 2010 from non-moving defendant BANA ("2010 Loan Modification"). Compl., ¶ 10. Following the 2010 Loan Modification, an Assignment of Deed of Trust was recorded whereby the transfer of the beneficial interest under the Deed of Trust to BONY was memorialized in the public records. Compl., ¶ 11; RJN, Exh. 2. Plaintiff alleges that in March 2013, BANA transferred servicing to Green Tree, now known as Ditech. Compl., ¶ 12. Plaintiff alleges that she applied for another loan modification in December 2014, and that Green Tree "promised a principal reduction that would reduce the then reported balance to $202,773.45." Compl., ¶ 13. Plaintiff further alleges that on December 5, 2014, she received a loan modification agreement for execution, however she rejected said loan modification as "the documents failed to show the promised principal reduction, saying instead that a portion of the balance (representing 50% of the principal) would be deferred." 2 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 9 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 L oc ke L or d L L P 19 20 21 22 23 24 25 26 27 28 Compl., ¶ 14. Ultimately, Plaintiff executed a revised Loan Modification Agreement that "showed the promised principal reduction on December 22, 2014 ("2014 Loan Modification"), and attached to the Complaint as Exhibit "A". Compl., TT 14-15. Plaintiff alleges that she made payments in accordance with the 2014 Loan Modification, and received monthly statements consistent with the terms of the 2014 Loan Modification. Compl., ¶ 17. Following a transfer of servicing of the Loan from Ditech back to BANA, Plaintiff alleges that she requested a pay-off quote on the Loan from BANA, which reported the amounts owed as $402,517.25. Compl., ¶ 19. Plaintiff alleges that she informed BANA of the error in the account balance, and received a letter from BANA and a copy of the rejected loan modification from December 2014 with the signature page from the 2014 Loan Modification. Compl., ¶ 19. Plaintiff further alleges that BANA informed her that "no principal reduction was ever agreed to." Compl., ¶ 19. HI. LEGAL ARGUMENT A. Applicable Legal Standard "To survive a motion to dismiss, a complaint must contain 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, in resolving a Rule 12(b)(6) motion to dismiss, a court engages in a two-prong inquiry. First, a court accepts all well-pled allegations as true, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (citation omitted). Nor need a court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 3 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 10 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 Second, the court determines whether the well-pled factual allegations are sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]' -`that the pleader is entitled to relief.'" Id. (citing Fed. R. Civ. P. 8(a)(2)). B. The Complaint Does Not Satisfy Rule 8(a) Federal Rule of Civil Procedure 8(a) "demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A complaint cannot simply "le[ave] open the possibility that a plaintiff might later establish some `set of undisclosed facts' to support recovery." Twombly, 550 U.S. at 561. To avoid dismissal under Rule 8(a), a plaintiff must plead sufficient facts "to provide the 'grounds' of his `entitle[ment] to relief,' [which] requires more than labels and conclusions, and [for which] a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). "[A] complaint must contain enough factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (citations omitted). Furthermore, Rule 8 does not permit the undifferentiated lumping together of defendants. See Newman v. One West Bank, FSB, 2010 WL 797188, *5 (C.D. Cal. Mar. 5, 2010) ("Plaintiffs' allegations fail to meet the basic pleading requirements of Rule 8(a) because they lump all of the defendants together."); Aaron v. Aguirre, No. 06-1451, 2007 WL 959083, *16 n.6 (S.D. Cal. Mar. 8, 2007) ("[U]ndifferentiated pleading against multiple defendants is improper."); Gauvin v. Trombatore, 682 F.Supp. 1067, 1071 (N.D. Cal. 1988) (lumping together multiple defendants fails to satisfy notice requirement of Rule 8(a)). In all, the "failure to indicate which defendant was allegedly responsible for which wrongful act and to provide well-pleaded factual allegations in support of each cause 28 4 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 11 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 of action renders [a] [c]omplaint deficient under Rule 8." See Corazon v. Aurora Loan Services, 2011 WL 1740099, *5 (N.D. Cal. 2011). Here, there are no allegations in Plaintiff's Complaint as to how BONY and Ditech, as opposed to Defendant BANA, engaged in any unlawful conduct. The entire Complaint should be dismissed for this reason. See id.; see also In re Sagent Tech., Inc., 278 F.Supp.2d 1079, 1094 (N.D. Cal. 2003) ("[T]he complaint fails to state a claim because plaintiffs do not indicate which individual defendant or defendants were responsible for which alleged wrongful act."). As Plaintiff's Complaint does not comply with basic pleading requirements, the entire Complaint should be dismissed for failure to satisfy with Rule 8. C. Plaintiff's First Cause Of Action Fails To State A Claim Against Moving Defendants Plaintiff alleges that Moving Defendants breached the terms of the Deed of Trust, 2010 Modification and 2014 Modification by failing to acknowledge a purported principal reduction and by demanding payment of principal purportedly contractually waived. Compl., ¶ 29. To state a claim for breach of contract, a plaintiff must assert: (1) the existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damage to the plaintiff. Wall St. Network, Ltd. v. N.Y. Times Co., 164 Cal.App.4th 1171, 1178 (2008). "[I]f the action is based on an alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference." Otworth v. S. Pac. Transp. Co., 166 Cal.App.3d 452, 459 (1985). Plaintiffs' breach of contract claim fails as to Moving Defendants as she does not allege how they breached any contract. Specifically, Plaintiff cannot point to any provision of the 2014 Loan Modification, the Loan Documents, or even the 2010 Loan Modification that Moving Defendants breached. According to the 2014 Loan Modification attached to her Complaint, at Sections 3(C) and (F), Plaintiff agreed to: 5 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 L oc ke L or d L L P 19 20 21 22 23 24 25 26 27 28 C. $202,772.40 of the New Principal Balance shall be forborne and I will not pay interest or make monthly payments on this amount. The New Principal Reduction Balance shall be referred to as the "Interest Bearing Principal Balance" and this amount is $202,773.45. F. I agree to pay in full the Deferred Principal Balance and any other amounts still owed under the Loan Documents by the earliest of: (i) the date I sell or transfer an interest in the Property, (ii) the date I pay the entire Interest Bearing Principal Balance, or (iii) the Maturity Date. As such, by the explicit terms of the 2014 Loan Modification that Plaintiff admits to executing, the purported "principal reduction" was not forgiveness of the principal, but rather a forbearance of said amounts, to be paid back. Given that Plaintiff does not allege any other breaches by any of the defendants, Plaintiff's breach of contract claim must fail for this reason alone. Further, even if Plaintiff did allege a breach of the contract by defendants (which she has not), Plaintiff's Complaint fails to allege how Moving Defendants breached the 2014 Loan Modification. By Plaintiff's allegations, Plaintiff requested a pay-off quote for the Loan from defendant BANA in April 2016, who informed her that no principal reduction was ever agreed to. Compl., ¶ 19. Indeed, it appears that Plaintiff alleges that as of December 15, 2015, Ditech reported the principal balance in accordance with the 2014 Loan Modification. Compl., ¶ 20. Further, Plaintiff alleges that she received monthly statements consistent with the 2014 Loan Modification from Ditech. Compl., ¶ 17. Finally, Plaintiff does not allege any specific breach by BONY. As such, Plaintiff's claim for breach of contract similarly fails. D. Plaintiff's Second Cause Of Action Fails To State A Claim Against Moving Defendants Plaintiff's second cause of action for violations of Business and Professions Code section 17200 (the "UCL") is based on the "swapping [of] the unsigned signature page of the Rejected Modification with the signed signature page of the 2014 Principal Reduction Modification, and Defendants' subsequent attempt to 6 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 13 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 enforce the terms of the Rejected Modification." Compl., ¶32. However, to state a claim under the UCL, a plaintiff must allege that a given defendant engaged in an "unlawful, unfair or fraudulent business act or practice" which caused the plaintiff to suffer "injury in fact" and "lost money or property." See Bus. & Prof. Code § 17204; Bernardo v. Planned Parenthood Fed. of America, 115 Cal. App. 4th 322 (2004). In doing so, "[a] plaintiff must state with reasonable particularity the facts supporting the statutory elements of the violation." Khoury v. Malys of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993). Plaintiff has not alleged the existence of any "unlawful, unfair or fraudulent business act or practice." To the extent her claim is brought under the "unlawful" prong of the UCL, it fails because it is derivative of their other failed legal claims. Plaintiff's second cause of action also fails to properly allege the violation of any other law. See Krantz v. BT Visual Images, LLC, 89 Cal. App. 4th 164, 178 (2001) ("unlawful" prong requires underlying violation of law); Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1190-91 (N.D. Cal. 2009) ("[S]ince the Court has dismissed all of the Plaintiff's predicate violations, Plaintiff cannot state a claim under the unlawful business practice prong of the UCL."). And to whatever extent Plaintiff attempts to bring claims under the UCL's "unfair" or "fraudulent" prong, their UCL claim is inadequately pled. An "unfair" practice must be "tethered" to specific "constitutional, statutory, or regulatory provisions." Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 940 (2003). Because Plaintiff fails to plead, with particularity, that Moving Defendants engaged in such "unfair" practices, she fails to state a claim under the "unfair" prong. See Khoury, 14 Cal.App.4th at 619 (UCL claims must be pled with particularity); Simila v. American Sterling Bank, 2010 WL 3988171, *6 (S.D. Cal. Oct. 12, 2010) (dismissing UCL claim because "Plaintiffs have not sufficiently 'tethered' their allegations of unfair competition to any underlying law"). 28 7 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 14 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 Further, "to state a claim under the UCL based on fraudulent conduct, a plaintiff must allege, with particularity, facts sufficient to establish that the public would likely be deceived by Moving Defendants' conduct." Perez v. Wells Fargo Bank, NA., 2011 WL 3809808, *16 (N.D. Cal. Aug, 29, 2011). As noted above, Plaintiff the purported 2014 Loan Modification explicitly states that "$202,772.40... shall be forborne" and that Plaintiff "agree[d] to pay in full the Deferred Principal Balance and any other amounts owed under the Loan Documents by the earliest of: (i) the date I sell or transfer an interest in the Property, (ii) the date I pay the entire Interest Bearing Principal Balance, or [iii] the Maturity Date." Compl., Exh. A, pp. 2-3. Further, even if there was a "swapping out" of the signature page from the 2014 Loan Modification to a prior, "Rejected Modification," Plaintiff alleges that BANA only, not Moving Defendants, was responsible. Compl., ¶ 19. Additionally, Plaintiff's allegations indicate that Ditech did, indeed, honor the terms of the 2014 Loan Modification, and fails to allege any facts regarding BONY. Compl., rlf 17, 20. Given the explicit terms of the 2014 Loan Modification, which Plaintiff admits to executing and failure to allege any wrongdoing by Moving Defendants, she also fails to state a claim under the "fraudulent" prong. See id. at *16 (dismissing UCL claim explaining that "Plaintiffs have not met this standard because they have not identified specific deceptive statements or omissions ... or alleged facts showing why those specific statements or omissions would be likely to deceive the public."); Altman v. PNC Mortg., 850 F.Supp.2d 1057, 1078-79 (E.D. Cal., 2012) (dismissing UCL claim because "[t]he complaint ... lacks ... facts to describe how consumers were deceived"); Khoury, 14 Cal.App.4th at 619 (UCL claim lacked requisite particularity where plaintiff did not explain the manner by which the defendant allegedly mislead the plaintiff's customers). Finally, Plaintiff also lacks standing to bring a UCL claim against Moving Defendants in the first place. "To bring a claim under the UCL, ... [a plaintiff] must have suffered an injury in fact and lost money or property as a result of [the] alleged 8 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 L oc ke L or d L L P 19 20 21 22 23 24 25 26 27 28 unfair or fraudulent practices." DeLeon v. Wells Fargo Bank, NA., 2011 WL 311376, *7 (N.D. Cal. Jan. 28, 2011) (citing Cal. Bus. & Prof. Code § 17204). "That causal connection is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law." Daro v. Superior Court, 151 Cal. App. 4th 1079, 1099 (2007). In this case, Plaintiff does not allege that she paid Moving Defendants any money other than that due and owing on her loan. Further, as noted above, by the explicit terms of the 2014 Loan Modification, $202,772.40 would be forborne, not forgiven. Compl., Exh. A, p. 2. As such, Plaintiff cannot claim to have lost any money or property as a result of any purported unlawful, unfair, or fraudulent practices by Moving Defendants. Finally, Courts have made clear that the UCL cannot be used as an end-run around the requirements of other statutes. Glenn K Jackson Inc. v. Roe, 273 F.3d 1192, 1203 (2001) (dismissing UCL claim where underlying negligence and fraud claims were insufficient as a matter of law); see also Krantz v. BT Visual Images, L.L.C., 89 Cal.App.4th 164, 178 (2001) (the viability of a UCL claim stands or falls with the antecedent substantive causes of action."). "A court may not allow plaintiff to plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition." Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1048 (2000). For all of these reasons, Plaintiff's second cause of action fails to state a claim. E. Plaintiff's Third Cause Of Action Fails To State A Claim Against Moving Defendants Plaintiff's third cause of action claims that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et al. ("FDCPA"). Specifically, Plaintiff alleges violations of the FDCPA based on the purported refusal to acknowledged a reduced principal balance on the Loan, and presenting a false representation and communication for the purpose of collection a debt, in violation of Section 1692e(2) and 1962e(10). Compl., ¶¶38-39. 9 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 16 of 18 L oc ke L or d L L P 15 16 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 However, Plaintiff's claims for violation of the FDCPA must also fail because Defendants are not a "debt collector" within either statute. See Pratrap v. Wells Fargo Bank, NA., No. 12-cv-06378-MEJ, 2014 WL 3884413, *9 (N.D. Cal. Aug. 7, 2014 (a mortgage servicing company is not a debt collector within the meaning of the FDCPA); accord Zhuravlev v. BAC Home Loans Servicing, LP, 2010 WL 2873253, at *2 (N.D. Cal. July 20, 2010) (a debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned); accord Caballero v. Ocwen Loan Serv., No. 09-cv-01021-RMW, 2009 WL 1528128, at *1 (N.D. Cal. May 29, 2009) (loan servicer was not "debt collector" under FDCPA). Setting this aside, even if Moving Defendants are considered debt collectors, Plaintiff has not alleged any facts to support her claims of any violations by Moving Defendants. Specifically, Plaintiff alleges that she had requested the pay off statement from BANA, not Moving Defendants. Compl., ¶ 19. Further, Plaintiff admits that Ditech purportedly reported the principal loan balance "correctly," as she calculates her damages based on the December 15, 2015 principal balance reported. Compl., ¶ 20. As such, Plaintiff has failed to allege any facts to support her claims that Moving Defendants violated any provision of the FDCPA. For all of these reasons, Plaintiff's third cause of action should be dismissed. F. Plaintiff's Fourth Cause Of Action Fails To State A Claim against Moving Defendants Plaintiff's fourth cause of action seeks declaratory relief against all defendants, essentially requesting the Court to declare that the principal balance of the Note is reduced to $202,773.45 based on a purported principal reduction. Compl., ¶42. However, "declaratory relief is a form of equitable relief and not an independent cause of action." Biederman v. Northwest Trustee Services, Inc., Case No. 15-02282, 2015 WL 3889371, *1 (C.D. Cal. Jun. 24, 2015); accord Flores, 997 F. Supp. 2d at 1111 ("A declaratory judgment is not a theory of recovery. The [Declaratory Judgment Act] 10 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 17 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 L oc ke L or d L L P A g 15 16 17 18 merely offers an additional remedy to litigants."). In addition," a declaratory relief claim fails when it is a duplicate of other claims." Biederman, 2015 WL 3889371 at *1 (dismissing declaratory relief claim where it sought to determine the same issues as the other causes of action in the complaint). Indeed, "[i]t is well-established that the Declaratory Judgment Act 'does not create an independent cause of action.' "Del Monte Intl GmbH v. Del Monte Corp., 995 F.Supp.2d 1107, 1124 (C.D. Cal. 2014) (quotation omitted). Rather, declaratory relief merely "afford[s] a new form of relief where needed" but does not "furnish a litigant with a second cause of action for the determination of identical issues." Lai v. Quality Loan Serv. Co., Case No. CV 10- 02308 PSG, 2010 WL 3419179, *3 (C.D. Cal. Aug.26, 2010). As Plaintiff does not assert a single viable cause of action against Moving Defendants (as discussed above), there is nothing to support her request for declaratory relief. Accordingly, her fourth cause of action must fail. W. CONCLUSION For all of these reasons, Moving Defendants respectfully request that this Court grant their motion to dismiss, in its entirety. Dated: September 30, 2016 Respectfully submitted, LOCKE LORD LLP 19 20 By: /s/ Meagan S. Tom Regina J. McClendon Meagan S. Tom Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon flca The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 27 28 11 MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG 21 22 23 24 25 26 Case 3:16-cv-02394-BAS-WVG Document 5 Filed 09/30/16 Page 18 of 18 Regina J. McClendon (SBN 184669) Meagan S. Tom (SBN 273489) LOCKE LORD LLP 44 Montgomery Street, Suite 4100 San Francisco, CA 94104 Telephone: (415) 318-8810 Fax: (415) 676-5816 rmcclendon@lockelord.com meagan.tom@lockelord.com Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon fka The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SUSAN KOGA FREIMAN, an individual, Plaintiff, vs. BANK OF AMERICA NATIONAL ASSOCIATION; GREEN TREE SERVICING, LLC; DITECH FINANCIAL, LLC, a Delaware limited liability company; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC. ASSET- BACKED CERTIFICATES, SERIES 2004- 12; and DOES 1 through 50, inclusive, Defendants. 1 REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No.3:16-cv-02394-BAS-WVG CASE NO.: 3:16-cv-02394-BAS-WVG DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS DATE: October 31, 2016 PLACE: Courtroom 4B NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Complaint Filed: August 18, 2016 L oc ke L or d L L P Case 3:16-cv-02394-BAS-WVG Document 5-1 Filed 09/30/16 Page 1 of 2 Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon fka The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004- 12, request that the Court take judicial notice of the documents attached hereto pursuant to Fed. R. Evid. 201. "Under Fed. R. Evid. 201, a court may take judicial notice of 'matters of public record.' Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. South Bay Beer Distrib., 789, F.2d 1279, 1282 (9th Cir. 1986)). 1. A Deed of Trust recorded on October 26, 2004, in the Official Records of San Diego County as document no. 2004-1012958. A true and correct copy of this document is attached hereto as Exhibit 1. 2. An Assignment of Deed of Trust recorded on December 18, 2012, in the Official Records of San Diego County as document no. 2012-0796035. A true and correct copy of this document is attached hereto as Exhibit 2. Dated: September 30, 2016 Respectfully submitted, LOCKE LORD LLP By: /s/ Meagan S. Tom Regina J. McClendon Meagan S. Tom Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon fka The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset- Backed Certificates, Series 2004-12 2 REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS Freiman v. Bank of America National Association. et al.. Case No.3:16-cv-02394-BAS-WVG L oc ke L or d L L P Case 3:16-cv-02394-BAS-WVG Document 5-1 Filed 09/30/16 Page 2 of 2 MS SV-79 DOCUMENT PROCESSING P.O.Box 10423 Van Nuys, CA 9141'0-0423 Prepared By: CONNIE MI RABAL 11111111111111111111111111111111111111111111111111111111111111111111111111111111 20044012958 • [Space Above This Line For Recording Data] 98052306 0008608546310004 2 3 9 9 1 0 8 8 0 8 5 4 8 3 0 0 0 0 0 1 0 0 6 A Initials: Form 3005 1/01 RECORDING REQUESTED BY: ;;OMMONWEALTH LAND TITLE COMPANY Recording Requested By: P. WEBBER-JAMES After Recording Return To: %..) COUNTRYWIDE HOME LOANS, INC. 25000 .111 11111 i)1161IIIIIIIIIIIIillici111111?1111121111111110 IIII OCT 26, 2004 4:14 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDERS OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 96.00 PAGES: • 30 DA. 1 [Escrow/Closing #1 [Doc ID #1 DEED OF TRUST MIN 1000157-0004358555-9 DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 3, I1, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. (A) "Security Instrument" means this document, which is dated OCTOBER 20, 2009 , together with all Riders to this document. (B) "Borrower" is SUSAN 'FOGA FREIMAN, A MARRIED WOMAN AS HER SOLE AND SEPARATE PROPERTY CAUFORNIA-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Page 1 of 16 00-13A(CA) (0207) CHL (09/02)(d) VMP MORTGAGE FORMS - (800)521-7291 CONVNA Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 1 of 30 lak8ikcAm0207) cmgmm Page2M16 rm 3005 1/01 Initials 25001 DOC ID #: 0008608546310004 Borrower's address is 17161 ALVA RD #2823, SAN DIEGO, CA 92127 Borrower is the trustor under this Security Instrument. (C) "Lender" is AMERICA'S WHOLESALE LENDER Lender is a CORPORATION organized and existing under the laws of NEW YORK Lender's address is P.O. Box 10219, Van Nuys, CA 91410-0219 (D) "Trustee" CTC REAL ESTATE SERVICES 400 COUNTRYWIDE WAY, MSN SV -88, SIMI VALLEY, CA 93065 (E) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. (F) "Note" means the promissory note signed by Borrower and dated OCTOBER 20, 2004 . The Note states that Borrower owes Lender THREE HUNDRED SIXTY THOUSAND and 00/100 Dollars (U.S. $360,000.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than NOVEMBER 01, 2034 . (G) "Property" means the property that is described below under the heading "Transfer of Rights in the Property." (H) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and all sums due under this Security Instrument, plus interest. (I) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check box as applicable]: El Adjustable Rate Rider El Condominium Rider 0 Second Home Rider 17 Balloon Rider 7 Planned Unit Development Rider 0 1-4 Family Rider 0 VA Rider 0 Biweekly Payment Rider 0 Other(s) [specify] (J) "Applicable Law" means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions. (K) "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization. (L) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (M) "Escrow Items" means those items that are described in Section 3. (N) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; 9ii) Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 2 of 30 25002 DOC ID #: 0008608546310004 conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. (0) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the Loan. (P) "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument. (0) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the same subject matter. As used in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard to a "federally related mortgage loan" even if the Loan does not qualify as a "federally related mortgage loan" under RESPA. (R) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument. TRANSFER OF RIGHTS IN THE PROPERTY The beneficiary of this Security Instrument is MFRS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the COUNTY of SAN DIEGO [Type of Recording Jurisdiction] [Name of Recording Jurisdiction] SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. Parcel ID Number: 6780501212 which currently has the address of 17161 ALVA ROAD #2823, SAN DIEGO [Street/City] California 92127-21 8 3 ("Property Address"): [Zip Code] TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property." Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, inducing, C:0-6A(CA) (0207) CHL (09/02) Page 3 of 16 Initials: Fd11n 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 3 of 30 Ji j DOC ID #: 0008608546310004 but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real Property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can be paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges and then as described in the Note. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Paymen Cl e -6A(CA) (0207) CHL (09/02) Page 4 of 16 !Stair Form 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 4 of 30 coi-1 DOC ID #: 0008608546310004 3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due for (a) taxes and assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shall furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase "covenant and agreement" is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender can agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA. If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA, but in no more than 12 monthly payments. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. kMals: CD -6A(CA) (0207) CHL (09/02) Page 50116 orm 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 5 of 30 25005 DOC ID #: 0008608546310004 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting service used by Lender in connection with this Loan. 5. Properly Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone determination, certification and tracking services; or (b) a one-time charge for flood zone determination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Borrower. If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment All insurance policies required by Lender and renewals of such policies shall be subject to Lender's right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. Lender shall have the right to hold the policies and renewal certificates. If Lender requires, Borrower shall promptly give to Lender all receipts of 41:),-GA(CA) am CHL(09/02) Pagefion6 Initials Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 6 of 30 02 S.00 Co DOC ID #: 0008608546310004 paid premiums and renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender ' may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair •s not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section 2. If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin when the notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise, Borrower hereby assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument, and (b) any other of Borrower's rights (other than the right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument, whether or not then due. 6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control. 7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, Borrower shall be responsible for repairing or restoring the Property only if Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower's obligation for the completion of such repair or restoration. Initials: 4A(CA) mon CHL (09102) Page70116 rm 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 7 of 30 25007 DOC ID #: 0008608546310004 Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause. 8. Borrower's Loan Application. Borrower shall be in default if, during the Loan application process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide Lender with material information) in connection with the Loan. Material representations include, but are not limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence. 9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property., and securing and/or repairing the Property. Lender's actions can include, but are not limited to: (a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and (c) paying reasonable attomeys' fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9. Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee tide to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason, the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that previously provided such insurance and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage substantially equivalent to the Mortgage Insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the Mortgage Insurance previously in effect, from an alternate mortgage insurer selected by Lender. If substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect. Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance. Such loss reserve shall be non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and Lender shall not be required to pay Borrower any interest or earnings on such loss reserve. Lender can no longer require loss reserve payments if Mortgage Insurance coverage (in the amount and for the period that Lender requires) provided by an insurer selected by Lender again becomes available, is obtained, and Lender requires separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance, Borrower -6A(CA) (0207) CHL (09/02) Page 8 of 18 Form f3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 8 of 30 25008 DOC ID #: 0008608546310004 shall pay the premiums required to maintain Mortgage Insurance in effect, or to provide a non-refundable loss reserve, until Lender's requirement for Mortgage Insurance ends in accordance with any written agreement between Borrower and Lender providing for such termination or until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided in the Note. Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it may incur if Borrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance. Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on terms and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements. These agreements may require the mortgage insurer to make payments using any source of funds that the mortgage insurer may have available (which may include funds obtained from Mortgage Insurance premiums). As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that derive from (or might be characterized as) a portion of Borrower's payments for Mortgage Insurance, in exchange for sharing or modifying the mortgage insurer's risk, or reducing losses. If such agreement provides that an affiliate of Lender takes a share of the insurer's risk in exchange for a share of the premiums paid to the insurer, the arrangement is often termed "captive reinsurance." Further: (a) Any such agreements will not affect the amounts that Borrower has agreed to pay for Mortgage Insurance, or any other terms of the Loan. Such agreements will not increase the amount Borrower will owe for Mortgage Insurance, and they will not entitle Borrower to any refund. (b) Any such agreements will not affect the rights Borrower has - if any - with respect to the Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. These rights may include the right to receive certain disclosures, to request and obtain cancellation of the Mortgage Insurance, to have the Mortgage Insurance terminated automatically, and/or to receive a refund of any Mortgage Insurance premiums that were unearned at the time of such cancellation or termination. 11. Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby assigned to and shall be paid to Lender. If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may pay for the repairs and restoration in a single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be required to pay Borrower any interest or earnings on such Miscellaneous Proceeds. If the restoration or repair is not economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2. In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security hMals• CD -6A(CA) (0207) CHL (09/02) Page 9 of 16 orm 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 9 of 30 goo q DOC ID #: 0008608596310009 Instrument shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the fair market value of the Property immediately before the partial taking, destruction, or loss in value. Any balance shall be paid to Borrower. In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. "Opposing Party" means the third party that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds. Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has occurred, reinstate as provided in Section 19, by causing the action or proceeding to be dismissed with a ruling that, in Lender's judgment, precludes forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Security Instrument. The proceeds of any award or claim for damages that are attributable to the impairment of Lender's interest in the Property are hereby assigned and shall be paid to Lender. All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in the order provided for in Section 2. 12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender's acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy. 13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who co-signs this Security Instrument but does not execute the Note (a "co-signer"): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent. Initials: Ca ) -6A(CA) (0207) CHL (09/02) Page 10 of 16 orm 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 10 of 30 • 25010 DOC ID #: 0008608596310009 Subject to the provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower's obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's rights and benefits under this Security Instrument. Borrower shall not be released from Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in writing. The covenants and agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and assigns of Lender. 14. Loan Charges. Lender may charge Borrower fees for services performed in connection with Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expressly prohibited by this Security Instrument or by Applicable Law. If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge (whether or not a prepayment charge is provided for under the Note). Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right of action Borrower might have arising out of such overcharge. 15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address. If Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only report a change of address through that specified procedure. There may be only one designated notice address under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing it by first class mail to Lender's address stated herein unless Lender has designated another address by notice to Borrower. Any notice in connection with this Security Instrument shall not be deemed to have been given to Lender until actually received by Lender. If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security Instrument. 16. Governing Law; Severability; Rules of Construction. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. All rights and obligations contained in this Security Instrument are subject to any requirements and limitations of Applicable Law. Applicable Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such silence shall not be construed as a prohibition against agreement by contract. In the event that any provision or clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. As used in this Security Instrument: (a) words of the masculine gender shall mean and include corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and include the plural and vice versa; and (c) the word "may" gives sole discretion without any obligation to take any action. 17. Borrower's Copy. Borrower shall be given one copy of the Note and of this Security strument. Initials CD0-6A(CA) (0207) CHL (09/02) Page 11 of 16 orm 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 11 of 30 CD -6A(CA) (0207) CHL (09/02) Initials' Page 12 of 16 F6rm 3005 1/01 25011 DOC ID #: 0008608546310004 18. Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security Instrument; (b) such other period as Applicable Law might specify for the termination of Borrower's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and expenses in one or more of the following forms, as selected by Lender (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic Funds Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of acceleration under Section 18. 20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new Loan Servicer, the address to which payments should be made and any other information RESPA requires in connection with a notice of transfer of servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser. Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 12 of 30 25012 DOC ID #: 0008608546310004 compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20. 21. Hazardous Substances. As used in this Section 21: (a) "Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal action, as defined in Environmental Law; and (d) an "Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental Law, (b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including, but not limited to, hazardous substances in consumer products). Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance, and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely affects the value of the Property. If Borrower learns, or is notified by any governmental or regulatory authority, or any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing herein shall create any obligation on Lender for an Environmental Cleanup. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence. -6A(CA) (0207) CHL (09/02) Page 13 of 16 Initials Qld nn 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 13 of 30 25013 DOC ID #: 0008608546310004 If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Lender's election to cause the Property to be sold. Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by Applicable Law to Borrower and to the other persons prescribed by Applicable Law. Trustee shall give public notice of sale to the persons and in the manner prescribed by Applicable Law. After the time required by Applicable Law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the lime and place and under the terms designated in the notice of sale in one or more parcels and in any order Trustee determines. Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. Lender or its designee may purchase the Property at any sale. Trustee shall deliver to the purchaser Trustee's deed conveying the Property without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable Trustee's and attorneys' fees; (b) to all sums secured by this Security Instrument; and (c) any excess to the person or persons legally entitled to it. 23. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall request Trustee to reconvey the Property and shall surrender this Security Instrument and all notes evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled to it. Lender may charge such person or persons a reasonable fee for reconveying the Property, but only if the fee is paid to a third party (such as the Trustee) for services rendered and the charging of the fee is permitted under Applicable Law. If the fee charged does not exceed the fee set by Applicable Law, the fee is conclusively presumed to be reasonable. 24. Substitute Trustee. Lender, at its option, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the Property is located. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page where this Security Instrument is recorded and the name and address of the successor trustee. Without conveyance of the Property, the successor trustee shall succeed to all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution. 25. Statement of Obligation Fee. Lender may collect a fee not to exceed the maximum amount permitted by Applicable Law for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California. 4A(CA) (0207) CHL (09/02) Page 14 of 16 Initials' Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 14 of 30 (Seal) -Borrower 25014 DOC ID #: 0008608546310004 BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any Rider executed by Borrower and recorded with it. Witnesses: (Seal) -Borrower (Seal) -Borrower (Seal) -Borrower Page 15 of 16 -6A(CA) (0207) CHL (09/02) Form 3005 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 15 of 30 before me, State of California County of On 25015 DOC ID #: 0008608546310004 000N I sb personally appeared -51ibaatAA-449? ocuy, (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s subscribed to the within instrument and ac ledged to me that he ey executed the same in his/her/their authorized capacity(ies), and that by hi deir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. VONCILE L. CARTER Commission i 1356945 Notary Public - California San Diego County My comm. Expire& May18, 2036 -6A(CA) (0207) CHL (09/02) Page 16 of 16 Initials Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 16 of 30 Prepared by: CONNIE MIRABAL AMERICA'S WHOLESALE LENDER 25016 Branch #: 0000789 1900 S STATE COLLEGE BLVD 4&5 DATE: 10/20/2004 ANAHEIM, CA 92806 CASE#: Phone: (800)669-6089 DOCID#: 0008608546310004 Br Fax No.: (N) BORROWER: SUSAN KOGA FREIMAN PROPERTYADDRESS: 17161 ALVA ROAD #2823 SAN DIEGO, CA 92127-2183 LEGAL DESCRIPTION EXHIBIT A FHA/VA/CONV • Legal Description Exhibit A 1C404-XX (04/03)(d) 0 1 2 3 9 9 1 0 8 6 0 8 5 4 6 3 0 0 0 0 0 1 0 0- 6 A Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 17 of 30 . • 25017 After Recording Return To: COUNTRYWIDE HOME LOANS, INC. MS SV-79 DOCUMENT PROCESSING P.O.Box 10423 Van Nuys, CA 91910-0923 [Space Above This Line For Recording Data] CONDOMINIUM RIDER Prepared By: CONNIE MIRABAL 98052306 0008608596310009 [Escrow/Closing i] [Doc ID 8] MULTISTATE CONDOMINIUM RIDER-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Page 1 of 3 Initials CD -8R (0008).02 CHL (12/01)(d) VMP MORTGAGE FORMS - (800)521-7291 Fo 140 1/01 D CONVNA 2 3 9 9 1 0- 8 6 0 8 5 4 6 3 0- 0- 0 0 0 1 o o 8 R Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 18 of 30 • 25018 DOC ID #: 0008608596310009 THIS CONDOMINIUM RIDER is made this TWENTIETH day of OCTOBER, 2009 , and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed of Trust, or Security Deed (the "Security Instrument") of the same date given by the undersigned (the "Borrower") to secure Borrower's Note to AMERICA'S WHOLESALE LENDER (the "Lender") of the same date and covering the Property described in the Security Instrument and located at: 17161 ALVA ROAD #2823, SAN DIEGO, CA 92127-2183 [Property Address) The Property includes a unit in, together with an undivided interest in the common elements of, a condominium project known as: THE SUMMIT OF RANCHO BERNARDO [Name of Condominium Project) (the "Condominium Project"). If the owners association or other entity which acts for the Condominium Project (the "Owners Association") holds title to property for the benefit or use of its members or shareholders, the Property also includes Borrower's interest in the Owners Association and the uses, proceeds and benefits of Borrower's interest. CONDOMINIUM COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows: A. Condominium Obligations. Borrower shall perform all of Borrower's obligations under the Condominium Project's Constituent Documents. The "Constituent Documents" are the: (i) Declaration or any other document which creates the Condominium Project; (ii) by-laws; (iii) code of regulations; and (iv) other equivalent documents. Borrower shall promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents. B. Property Insurance. So long as the Owners Association maintains, with a generally accepted insurance carrier, a "master" or "blanket" policy on the Condominium Project which is satisfactory to Lender and which provides insurance coverage in the amounts (including deductible levels), for the periods, and against loss by fire, hazards included within the term "extended coverage," and any other hazards, including, but not limited to, earthquakes and floods, from which Lender requires insurance, then: (i) Lender waives the provision in Section 3 for the Periodic Payment to Lender of the yearly premium installments for property insurance on the Property; and (ii) Borrower's obligation under Section 5 to maintain property insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Owners Association policy. What Lender requires as a condition of this waiver can change during the term of the loan. Borrower shall give Lender prompt notice of any lapse in required property insurance coverage provided by the master or blanket policy. In the event of a distribution of property insurance proceeds in lieu of restoration or repair following a loss to the Property, whether to the unit or to common elements, any proceeds payable to Borrower are hereby assigned and shall be paid to Lender for application to the sums secured by the Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Ct) -8R (0008).02 CHL (12/01) ass Page 2 of 3 !flitter/ Fo 3140 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 19 of 30 25019 DOC ID #: 0008608546310004 C. Public Liability Insurance. Borrower shall take such actions as may be reasonable to insure that the Owners Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to Lender. D. Condemnation. The proceeds of any award or claim for damages, direct or consequential, payable to Borrower in connection with any condemnation or other taking of all or any part of the Property, whether of the unit or of the common elements, or for any conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. Such proceeds shall be applied by Lender to the sums secured by the Security Instrument as provided in Section 11. E. Lender's Prior Consent. Borrower shall not, except after notice to Lender and with Lender's prior written consent, either partition or subdivide the Property or consent to: (i) the abandonment or termination of the Condominium Project, except for abandonment or termination required by law in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain; (ii) any amendment to any provision of the Constituent Documents if the provision is for the express benefit of Lender; (iii) termination of professional management and assumption of self-management of the Owners Association; or (iv) any action which would have the effect of rendering the public liability insurance coverage maintained by the Owners Association unacceptable to Lender. F. Remedies. If Borrower does not pay condominium dues and assessments when due, then Lender may pay them. Any amounts disbursed by Lender under this paragraph F shall become additional debt of Borrower secured by the Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment. BY SIGNING BELOW, Borrower accepts and agrees to the terms d provisions contained in this Condominium Rider. Mt (Seal) - Borrower (Seal) -Bormwer (Seal) - Borrower (Seal) -Bormwer e e -13R (0008).02 CHL (12/01) Page 3 of 3 Form 3140 1/01 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 20 of 30 • 25020 INTEREST ONLY ADJUSTABLE RATE RIDER (LIBOR Index - Rale Caps) After Recording Return To: COUNTRYWIDE HOME LOANS, INC. MS SV-79 DOCUMENT PROCESSING P.O.Box 10423 Van Nuys, CA 91410-0423 Prepared By: CONNIE MIRABAL 48052306 [Escrow/Closing #1 [Loan #1 MULTISTATE INTEREST ONLY ADJUSTABLE RATE RIDER - LIBOR INDEX • BC - Interest Only ARM Rider Initials: 1E120-XX (02/04)(d) Page 1 of 5 inch HI 0 8 6 0 8 5 4 6 3 0 0 0 0 0 1 E 1 2 2 3 9 9 1 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 21 of 30 25021 LOAN # THIS INTEREST ONLY ADJUSTABLE RATE RIDER is made this TWENTIETH day of OCTOBER, 2009 , and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed of Trust, or Deed to Secure Debt (the "Security Instrument") of the same date given by the undersigned (the "Borrower") to secure Borrower's Note to COUNTRYWIDE HOME LOANS, INC. (the "Lender") of the same date and covering the property described in the Security Instrument and located at: 17161 ALVA ROAD #2823, SAN DIEGO, CA 92127-2183 [Property Address] THE NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN THE INTEREST RATE AND THE MONTHLY PAYMENT. THE NOTE LIMITS THE AMOUNT THE BORROWER'S INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE THE BORROWER MUST PAY. ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows: A. INTEREST RATE AND MONTHLY PAYMENT CHANGES The Note provides for an initial interest rate of 6.000 %. The Note provides for changes in the interest rate and the monthly payments, as follows: 4. INTEREST RATE AND MONTHLY PAYMENT CHANGES (A) Change Dates The interest rate I will pay may change on the first day of NOVEMBER, 2007 and on that day every sixth month thereafter. Each date on which my interest rate could change is called a "Change Date." (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The "Index" is the average of interbank offered rates for six-month U.S. dollar-denominated deposits in the London market ("LIBOR"), as published in The Wall Street Journal. The most recent Index figure available as of the date 45 days before each Change Date is called the "Current Index." • BC - Interest Only ARM Rider 1E120-XX (02/04) Page 2 of 5 4 1/---/ Initial : . Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 22 of 30 25022 LOAN #: If the Index is no longer available, the Note Holder will choose a new index that is based upon comparable information. The Note Holder will give me notice of this choice. (C) Calculation of Changes Before each Change Date, the Note Holder will calculate my new interest rate by adding FIVE percentage point(s) ( 5.000 %) to the Current Index. The Note Holder will then round the result of this addition to the nearest one-eighth of one percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on the maturity date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment. (D) Limits on Interest Rate Changes The interest rate I am required to pay at the first Change Date will not be greater than 7.500 % or less than 6 .000 % . Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than ONE & ONE-HALF percentage point(s) ( 1. 500 %) from the rate of interest I have been paying for the preceding six months. My interest rate will never be greater than 13. 000 % or less than 6. 000 %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. I will pay the amount of my new monthly payment beginning on the rust monthly payment date after the Change Date until the amount of my monthly payment changes again. (F) Notice of Changes The Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my monthly payment before the effective date of any change. The notice will include information required by law to be given me and also the title and telephone number of a person who will answer any question I may have regarding the notice. (G) Date of First Principal and Interest Payment The date of my first payment consisting of both principal and interest on the Note (the "First Principal and Interest Payment Due Date") shall be the first monthly payment date after the first Change Date. B. TRANSFER OF THE PROPERTY OR A BENEFICIAL INTEREST IN BORROWER Uniform Covenant 18 of the Security Instrument is amended to read as follows: • BO - Interest Only ARM Rider 1E120-XX (02/04) Page 3 of 5 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 23 of 30 25023 LOAN #: Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any Interest in the Property is sold or transferred (or if a Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by • BC - Interest Only ARM Rider 1E120-XX (02/04) Page 4 of 5 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 24 of 30 25024 LOAN #: this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Interest Only Adjustable Rate Rider. (Seal) - Borrower (Seal) - Borrower (Seal) - Borrower • BC - Interest Only ARM Rider 1E120-XX (02/04) Page 5 of 5 Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 25 of 30 25025 EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described, as follows: A CONDOMINIUM COMPRISED OF: PARCEL I,: FEE SIMPLE INTEREST IN UNIT Condominium consisting of (1) a separate Interest in Unit No. U-56 in PAE 2 as shown on the Condominium Plan for the Boulders of Rancho Bernardo ("Plan") recorded in the Office of the County Recorder of San Diego County, California on November 22, 1994 as File No. 1994-0674913 of Official Records; and (2) an undivided 1148th fractional Interest in and to "Community Common Area 2" as shown and described in the Plan as "CCA-2", which Condominium is located within the boundaries of that certain real property described as: Lot 2 of County of San Diego Tract No. 4741, In the County of San Diego, State of California, according to Map thereof No. 12524, filed in the Office of the County Recorder of San Diego County, December 21, 1989. EXCEPTING THEREFROM all minerals, underground water, oil, gas and other hydrocarbon substances lying below a depth of 500 feet below the surface of the foregoing property, but without reserving the right of surface entry to such property. PARCEL 2: PECK. PATIO AND STORAGE EXCLUSIVE USE COMMON AREAS The exclusive right to use, possession and occupancy of those portions of PAE 2, as defined in the Project Declaration described hereinafter and shown and identified In the plan described In Parcel 1 above, which are designated on the Plan referred to in Parcel 1 above as "Balcony, Entry, Patio and Storage Exclusive Use Common Areas" bearing the same number as the Unit described in Parcel 1 above, all of which shall be appurtenant to Parcel 1 described above. Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 26 of 30 25020 PARCEL 3: PARKING SPACE EXCLUSIVE USE COMMON AREAS/EXCLUSIVE EASEMENT AREAS (BY ASSIGNMENT IN THEPROJECT DECLARATION) The exclusive right to use, possession and occupancy of those portions of the following 'Parking Space Exclusive Use Common Areas/Exclusive Easement Areas" located with the "Association Common Area" defined in the Declaration described hereafter and shown and described in the Plan described in Parcel 1 above as "ACA-1", which shall be assigned and appurtenant to Parcel 1 described above. PS-536 PS-517 PARCEL 4: NONEXCLUSIVE EASEMENTS OVER PHASE 2 COMMON AREA A non-exclusive easements on, in, over and through the Phase Common Area, as defined in the Project Declaration and the Plan, of PAE 2 for ingress and egress over any walkways situated thereon and for ingress and egress, access and support through and over the Condominium building In which the Unit described in Parcel 1 above is located, and for the support on and over the earth therein and under, and for access to, use, and enjoyment (subject to the provisions therefore contained in the Project Declaration) of the grounds, lawns and any recreational facilities located therein and for access to and use of any utility or related lines and equipment installed within, on or over the Phase Common Area of PAE 2 in order to provide utility or related services to Parcel 1 above and for access to "Community Common Area 2" ("CCA-2") as defined in the Plan; provided, however, EXCEPTING FROM all of the foregoing any Condominium buildings therein and any portions thereof which are designated as an "Exclusive Use Common Area" and/or a "Unit" in the Plan, which the exception of the Unit described in Parcel 1 above. PARCEL 5: NON EXCLUSIVE EASEMENTS ON, IN, OVER AND THROUGH THE FOLLOWING PORTIONS OF THE PROPERTY: NONEXCLUSIVE EASEMENTS OVER ASSOCIATION COMMON AREA "ACA-1" (PRIVATE STREETS, WALKWAYS, GROUNDS AND LAWNS) (I) Association Common Area "ACA-1" as defined in the Declaration Project described hereafter and shown and described in the Plan described in Parcel 1 above for ingress and egress, access, use and enjoyment (subject to the provisions therefore contained in the Project Declaration) over the private Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 27 of 30 I 25027 streets, walkways, grounds, and lawns located therein, and for access to and use of any utility or related lines and equipment Installed in, on or. over Said Association Common Area ACA-1, in order to provide utility or related services to Parcel 1 above; provided, however, EXCEPTING FROM all of the foregoing any portions thereof which are designated as a "Parking Space Exclusive Use Common Area" in the Plan. NON EXCLUSIVE EASEMENTS OVER RECREATION COMMON AREA "RCA-I, (PRIVATE RECREATIONAL FACILITIES. WALKWAYS, GROUNDS AND LAWNS\ (II) Recreational Common Area "RCA-1" defined in the Project Declaration described hereafter and shown and described in the Plan described in Parcel 1 above for ingress to, egress, from, access to, use and enjoyment (subject to the provisions therefore contained in the Project Declaration) of any recreational facilities, walkways, grounds and lawns located therein, and for access to and use of (including the right to install, maintain, repair or replace) any utility or related lines and equipment installed within in, on or over the Phase Common Area of "PAE 1" in order to provide utility or related services to Parcel 1 above. PARCEL 6: NONEXCLUSIVE EASEMENTS OVER PHASE 1 COMMON AREA A non-exclusive easement on, in, over and through the Phase Common Area of "PAE 1", as defined in the Project Declaration, for ingress to, egress from, access to, use, and enjoyment subject to the Project Declaration and the Facilities Declaration described hereinafter or any walkways, recreational, facilities, grounds and lawns located therein and for access to and use of any utility or related lines and equipment installed within , on or over the Phase Common Area of "PAE 1" in order to provide utility or related services to Parcel 1 above and for access to "Community Common Area 2" ("CCA2"), as defined in the Plan, provided, however, EXCEPTING FROM all of the foregoing any Condominium buildings therein and any portions thereof which are designated as an "Exclusive Use Common Area: and/or a "Unit" in the Plan. PARCEL 7: NONEXCLUSIVE EASEMENTS OVER OTHER PHASE COMMON AREAS A non-exclusive easement on, in, over and through the Phase Common Areas of "PAE 3", "PAE 4", "PAE 5", "PAE 6", "PAE 7", and "PAE 8", as defined in the Project Declaration, for Ingress to, egress from, access to, use and enjoyment, subject to the Project Declaration and the Facilities Declaration described hereinafter, of any walkways, recreational facilities, grounds and lawns, located therein and for access to and use of any utility or related lines and equipment Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 28 of 30 25028 installed within, on or over the Phase Common Area of "PAE 3", "PAE 4", "PAE 5", "PAE 6", "PAE 7", and "PAE 8" in order to provide utility or related services to Parcel 1 above and for access to "Community Common Area 2 ("CCA2") as defined in the Plan; provided, however, EXCEPTING FROM all of the foregoing any Condominium buildings therein and any portions thereof which are designated as an "Exclusive Use Common Area: and/or a "Unit" In the Plan. These non-exclusive easements shall become effective as to each respective PAE upon the conveyance of the first unit located within each such PAE. • PARCEL 8: NONEXCLUSIVE EASEMENTS OVER ASSOCIATION COMMON AREA "ACA- Non exclusive easements on, in, over and through Association Common Area "ACA-2" defined in the Project Declaration described hereafter and shown and described in the Plan described in Parcel 1 above for ingress and egress, access, use, and enjoyment, subject to the Project Declaration and the Facilities Declaration described hereinafter, over the private streets, walkways, grounds, and lawns, located therein, and for access to and use of any utility or related lines and equipment Installed, in, on or over Said Association Common Area ACA- 2 in order to provided utility or related services to Parcel 1 above; provided, however EXCEPTING FROM all of the foregoing any portions thereof which are designated as a "Parking Space Exclusive Use Common Area/Exclusive Easement Area" in the Plan. These non exclusive Easements shall become effective upon the conveyance of ACA-2 to the Association. PARCEL 'a: NON EXCLUSIVE EASEMENTS OVER ASSOCIATION COMMON AREA "ACA- 3"JOPEN SPACE). Non exclusive easements, on, in, over and through Association Common Area "ACA-3" defined in the Project Declaration described hereafter and shown and described in the Plan described in Parcel 1 above for ingress and egress, access, use, and enjoyment, as open space, subject to the restrictions, conditions and provisions, contained in the Project Declaration, and for access to and use or any utility or related lines and equipment installed in, on or over said Association Common Area ACA-3 in order to provide utility or related services to Parcel 1 above. These non exclusive easements shall become effective upon the conveyance of ACA-3 to the Association. Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 29 of 30 25029 PARCEL 10: NON EXCLUSIVE EASEMENTS OVER RECREATIONAL COMMON AREA Non exclusive easements, on, in, over and through Association Common Area "RCA-2" defined in the Project Declaration described hereafter and shown and described in the Plan described in Parcel 1 above for Ingress and egress, access, use, and enjoyment, (subject to the provisions therefore contained in the Project Declaration) of any recreational facilities, walkways, grounds and lawns located therein, and for access to and use of (Including the right to Install, maintain, repair or replace) any utility or related lines and equipment installed within, in, on, or over Said Recreational Common Area RCA-2 In order to provide utility or related service to Parcel 1 above. These non exclusive easements shall become effective upon the conveyance to RCA-2 to the Association. Said Declaration for the "Boulders of Rancho Bernardo" hereinabove mentioned recorded on November 22, 1994 as File No. 1994-0674915 in the Official Records of San Diego County, California and any amendments thereto ("Project Declaration"); and said Declaration of Covenants, Conditions and Restrictions for module separate interest property including reciprocal easements, facilities, use and cost sharing provisions hereinabove mentioned recorded on November 22, 1994 as File No. 1994-0674914 In the Official Records of San Diego County, California and any amendments thereto ("Facilities Declaration"). Case 3:16-cv-02394-BAS-WVG Document 5-2 Filed 09/30/16 Page 30 of 30 23 36 7 DOD tt 2012-0735035 1111 NI 111111111111011111111111111111111IOU 1111 111111 1I11 11 11 DEC 18, 201 2 4:22 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr. COUNTY RECORDER FEES: 21.00 DA: 1 PAGES: 2 1111111 010 11111 1111 11111 1N1 11110111 111101 111 This space for Recorder's we MIN #: 1000157.0004358555-9 MERS Phone II: 888-679-6377 ASSIGNMENT OF DEED OF TRUST For Value Received, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS"), AS NOMINEE FOR AMERICA'S WHOLESALE LENDER its successors and assigns (herein "Assignor") whose address is 1901 E Voorhees Street, Suite C, Danville, IL 61834 hereby assign and transfer to THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2004-12 its successors and assigns whose address is CIO BAC, M/C: CA6-914-0I-43, 1800 Tapo Canyon Road, Simi Valley, CA 93063 all its right, title, and interest to a certain Deed of Trust described below. Recording Requested By: Bank of America Prepared By: Diana De Avila 1800 Tapo Canyon Road Simi Valley, CA 93063 800-444-4302 When recorded mail to: CoreLogic Mail Stop: ASGN I CoreLogic Drive Westlake, TX 76262-9823 11111111111111111111111111111111111111111111111111 Doc D# 1018608546314396 Property Address: 17161 Alva Rd Unit 2823 San Diego, CA 92127-2183 CAOM-ADT 21132943 12/32012 FCLO1 Original Lender: Original Borrower(s): Original Trustee: Date of Deed of Trust: Original Loan Amount: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS"), AS NOMINEE FOR AMERICA'S WHOLESALE LENDER SUSAN KOGA FREIMAN, A MARRIED WOMAN AS HER SOLE AND SEPARATE PROPERTY CTC REAL ESTATE SERVICES 10/20/2004 $360,000.00 Recorded in San Diego County,CA on: 10/26/2004, book N/A, page 25000 and instrument number 2004-1012958 IN WITNESS WHEREOF, the undersigned has caused this Assignment of Deed of Trust to be executed on 4.2- a / 79 / MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS"), AS NOMINEE FOR AMERICA'S WHOLESALE LENDER Assietant Secretary Case 3:16-cv-02394-BAS-WVG Document 5-3 Filed 09/30/16 Page 1 of 2 23368 State of California County of Ventura On DEC 11 201p before me, Elsa Espltla Notary Public, personally appeared Bud Kamyabi , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. INot3ry Publi Elsa Espitla My Commission Expires: June 2, 201b 0.%," Alkcj ELSA ESPITIA Commission • 1980462 Notary Public - California (Seal) My Comm. Angeles County t. . Expires Jun 2, 2016 DocID# 1018608546314396 Case 3:16-cv-02394-BAS-WVG Document 5-3 Filed 09/30/16 Page 2 of 2 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 Regina J. McClendon (SBN 184669) Meagan S. Tom (SBN 273489) LOCKE LORD LLP 44 Montgomery Street, Suite 4100 San Francisco, CA 94104 Telephone: (415) 318-8810 Fax: (415) 676-5816 rmcclendon@lockelord.com meagan.tom@lockelord.com Attorneys for Defendants Ditech Financial LLC (formerly known as Green Tree Servicing LLC) and The Bank of New York Mellon fka The Bank of New York As Trustee For The Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SUSAN KOGA FREIMAN, an individual, Plaintiff, vs. BANK OF AMERICA NATIONAL ASSOCIATION; GREEN TREE SERVICING, LLC; DITECH FINANCIAL, LLC, a Delaware limited liability company; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC. ASSET- BACKED CERTIFICATES, SERIES 2004- 12; and DOES 1 through 50, inclusive, Defendants. CASE NO.: 3:16-cv-02394-BAS-WVG CERTIFICATE OF SERVICE Complaint Filed: August 18, 2016 1 CERTIFICATE OF SERVICE Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5-4 Filed 09/30/16 Page 1 of 3 STATE OF CALIFORNIA ) CERTIFICATE OF SERVICE COUNTY OF SAN FRANCISCO ) ss. Freiman v. Bank of America National Association, et aL U.S.D.C., S.D. Cal. Case No. 3:16-cv-02394-BAS-WVG I, Matt Dubuc, certify and declare as follows: I am over the age of 18 years and not a party to this action. My business address is 44 Montgomery Street, Suite 4100, San Francisco, California 94104, which is located in the city, county and state where the mailing described below took place. On September 30, 2016, I served a copy of the documents entitled: • DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF • DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS and this Certificate of Service on the parties or attorneys for parties in this action who are identified below, using the following means of service. (If more than one means of service is checked, the means of service used for each party is indicated below). Lee D. Lubin, Esq Patrick Gillespie, Esq. LAW OFFICE OF LEE DAVID LUBIN, INC. 16133 Ventura Blvd., Suite 1175 Encino, CA 91436 Attorneys for Plaintiff Susan Koga Freiman Tel: (818) 728-0712 Fax: (818) 995-7335 Email: leelubin@aol.com pgillespie22@gmail.com 2 BY CM/ECF. I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth pursuant to FRCP 5(d)(1). (Federal) I declare that I am employed in the office of a member of the bar of this court, at whose direction the service was made. On this day I also served a copy of: • ORDER GRANTING MOTION TO DISMISS PLAINTIFF'S COMPLAINT using the following means of service: 2 CERTIFICATE OF SERVICE Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5-4 Filed 09/30/16 Page 2 of 3 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 Ef BY E-MAIL. I caused the foregoing document(s) to be transmitted by e-mail electronic transmission to the e-mail address for each of the parties listed above, as last given by that person on any document which he or she has filed in this action and served upon this office. Executed on September 30, 2016, at San Francisco, California. 3 CERTIFICATE OF SERVICE Freiman v. Bank of America National Association. et al.. Case No. 3:16-cv-02394-BAS-WVG Case 3:16-cv-02394-BAS-WVG Document 5-4 Filed 09/30/16 Page 3 of 3