2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page i
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
Susan M. Murphy (SBN: 185335)
susan@advocatelegal.org
ADVOCATE LEGAL
5455 Wilshire Boulevard, Suite 2119
Los Angeles, California 90036
Telephone: (323) 692-7499
Facsimile: (800) 878-7336
Attorney for Plaintiffs
RUTH A. ROSENBERG and
ALFREDO ROSENBERG
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DISTRICT
RUTH A. ROSENBERG, an individual
and ALFREDO ROSENBERG, an
individual,
Plaintiffs,
v.
BANK OF AMERICA, N.A., a national
banking association; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC. a Delaware
corporation; MTC FINANCIAL INC.,
LP, A California Corporation, d/b/a
TRUSTEE CORPS; SELENE
FINANCE, LP, a Delaware limited
partnership; WILMINGTON SAVINGS
FUND SOCIETY FSB, a Delaware
Corporation, d/b/a CHRISTIANA
TRUST, not in its individual capacity,
but solely as trustee for BCAT 2014-
4TT; and DOES 1 through 50, inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 2:15-cv-7518-PSG-AGRx
PLAINTIFFS RUTH A. ROSENBERG &
ALFREDO ROSENBERG’S
OPPOSITION TO MOTION TO DISMISS
BY DEFENDANT BANK OF AMERICA,
N.A.
Date Filed: August 24, 2015
Date Removed: September 25, 2015
Judge: Hon. Philip S. Gutierrez
Courtroom: 880 (Roybal Courthouse)
Hearing Date: November 30, 2015
Hearing Time: 1:30 p.m.
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 1 of 28 Page ID #:482
2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page ii
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
TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………………. iii
INTRODUCTION …………………………………………...……………………… 1
STATEMENT OF FACTS ...…………………………………………………………… 2
STANDARD OF REVIEW…………………………………………………………….. 8
LEGAL ARGUMENT …………………………………………………………………. 9
I. PLAINTIFF ALFREDO ROSENBERG HAS A COMMUNITY
PROPERTY INTEREST IN THE FUNDS USED TO
PAY DEFENDANTS………………………………………………………..... 9
II. PLAINTIFF’S DUE PROCESS RIGHTS ARE NOT
PREEMPTED BY THE DOCTRINES OF RES JUDICATA
AND COLLATERAL ESTOPPEL ………………………………………… 10
A. PLAINTIFFS’ CLAIMS OCCURRED OVER A DIFFERENT
PERIOD OF TIME, ADDRESS DIFFERENT ACTIONS BY
DEFENDANTS, AND ALLEGE DIFFERENT INJURIES
TO PLAINTIFFS …………………………………………………….………10
B. THE ISSUES IN PLAINTIFFS’ CURRENT COMPLAINT WERE NOT
LITTIGATED IN THE PRIOR COMPLAINT …………………………….. 12
III. PLAINTIFFS’ RICO CLAIM FOR DAMAGES DOES
NOT REQUIRE PROSECUTION OR INDICTMENT
OF DEFENDANTS…………………………………………………………. 13
A. DEFENDANT BOA’S ACTIONS ARE “CHARGEABLE” AND
“INDICTABLE” UNDER FEDERAL CRIMINAL STATUTES WHICH IS
SUFFICIENT FOR PLAINTIFFS’ CLAIM ………………………………….. 13
B. PLAINTIFFS’ INJURIES RESULT FROM THE PREDICATE
ACTS OF DEFENDANT BOA AND DEFENDANT MERS IN
CONSPIRACY.………………………………………………………………… 16
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 2 of 28 Page ID #:483
2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page iii
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
IV. DEFENDANTS VIOLATED THE FDCPA BECAUSE
THEY WERE NEITHER BENEFICIARY NOR SERVICER …………….. 18
V. PLAINTIFFS HAVE PROPERLY PLED A VIOLATION
OF THE BUSINESS AND PROFESSIONS CODE §17200 ET SEQ
BECAUSE THEY HAVE PLED VIOLATIONS OF
LAW.................................................................................................................20
CONCLUSION …………………………………………………………………. …... 21
NOTICE OF ELECTRONIC FILING…………………………………………………
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 3 of 28 Page ID #:484
2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page iv
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
TABLE OF AUTHORITIES
FEDERAL CASES
Pareto v. F.D.I.C., 139 F. 3d 696, 699 (9th Cir. 1988.) ……………………………..…. 8
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) ……………….. 8
Parks Sch. Of Bus. Inc. v Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) ……………... 8
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009)…………………….8, 9,17
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955 (2007.)……………..….8
Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996.) ……………………………….... 9
Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1086 (9th Cir. 2002.)……………………..9
Oscar v. Univ. Students Co-Operative Ass'n, 965 F.2d 783, 786
(9th Cir. 1992.) …………………………………………………………………………10
Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 279, 112 S.Ct. 1311,
1323 (1992.)……. …………………………………………………………………..….10
Sedima v. Imrex Co., 473 U.S. 479, 481, 105 S.Ct. 3275, 3277
(1985.)…………………………………………………………………..………………13
Dymits v. American Brands, Inc., 1996 U.S. Dist. LEXIS 19742, *25
(N.D. Cal. Dec. 31, 1996)……………………………………………………………….13
United States v. Private Sanitation Indus. Ass'n, 793 F. Supp. 1114, 1129 (E.D.N.Y.
1992)…………………………………………………………………….13,14
Pedersen v. Greenpoint Mortgage Funding, Inc., 900 F. Supp. 2d 1071, 1082 (E.D. Cal.
2012).) ……………………………………………………………………….………...14
Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 1490 (1995)………….………..19
Griley v. Nat'l City Mortg., 2011 U.S. Dist. LEXIS 5061, *6, 2011 WL 219574 (E.D.
Cal. Jan. 18, 2011)……………………………………………………..………………..20
Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010.) ………………..…. 20
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 4 of 28 Page ID #:485
2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page v
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
STATE CASES
Planning & Conservation League v. Castaic Lake Water Agency, 180 Cal. App. 4th 210,
226, 103 Cal. Rptr. 3d 124, 138 (2009)…...…………….………………………………10
Fed’n of Hillside & Canyon Assns. v. City of L.A., 126 Cal. App. 4th 1180, 1202, 24 Cal.
Rptr. 3d 543, 557 (2004.) ……………………………………………………………...11
Bernhard v. Bank of Am. Nat'l Tr. & Sav. Asso., 19 Cal. 2d 807, 811, 122 P.2d 892, 894
(1942.)………………………………………………………………………..…………11
Branson v. Sun-Diamond Growers, 24 Cal. App. 4th 327, 344, 29 Cal. Rptr. 2d 314, 323
(1994.) …………………...……………………………………………………………..11
People v. Sims, 32 Cal. 3d 468, 484, 186 Cal. Rptr. 77, 87, 651 P.2d 321, 331
(1982.) ………………………………………………………………………………….12
Glaski v. Bank of Am., 218 Cal. App. 4th 1079, 1085-86, 160 Cal. Rptr. 3d 449, 454
(2013.) ……………………………………………………………..………………….18
Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 1499, 82 Cal. Rptr. 2d 368, 371
(1999);…………………………………………………………………………………. 20
Buller v. Sutter Health, 160 Cal. App. 4th 981, 982, 74 Cal.
Rptr. 3d 47, 49 (2008) ………………………………………………………………….20
FEDERAL STATUTES
Federal Rules of Civil Procedure 12(b)(6) ……………………………………......8,12,17
18 U.S.C. §1341 ………. …………………………………….….………………..8,13,20
18U.S.C. §1344…………………………………………………………………....8,13,20
18 U.S.C. 1961 ………………………………………………….……. ...…………..8,14
18 U.S.C. §1962 ………………………………………………….…………………..9,10
18 U.S.C. §1964(c)……………………………………………………………………….9
18 U.S. Code §1961 (1) (B)………………………………………………...………...…13
18 U.S.C. §1861…………………………………………………………………..…17,18
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 5 of 28 Page ID #:486
2:15-cv-7518-PSG-AGRx / OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Page vi
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
18U.S.C. §1962(c)…………………….……………………………………………..…20
15 U.S.C. §1692e……………………………...……………………………………..19,20
18U.S.C. §1962(d)…………………………………...………………………………….20
STATE STATUTES
Cal Bus & Prof Code § 17200 ……………………………..…………………………...20
OTHER AUTHORITIES
Christopher Peterson, Two Faces: Demystifying the Mortgage Electronic Registration
System’s Land Title Theory, 53 Wm. & Mary L. Review 116l R.K. Arnold,
Viewpoint, Inside MERS, Jan./ Feb. 2004, at ……………………...……......1f.n. 7
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 6 of 28 Page ID #:487
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 1
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
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Of the allegations that Plaintiffs make in their complaint it is not plausibly subject
to dispute that Plaintiff RUTH A. ROSENBURG’s loan was intended for securitization
by originator Homecoming Financial Network, Inc. (HOMECOMING). (Comp. ¶19; Ex.
C.) This is because of the appearance of Defendant Mortgage Electronic Registration
Systems, Inc. (MERS) on the deed of trust as a beneficiary. (Comp. EX. C.)
Securitization drove the decision to create Defendant MERS so that servicers like
Defendant Bank of America N.A. (BOA), a servicer/ owner of Defendant MERS, could
save money on the multiple recording fees demanded by securitization while
simultaneously pretending to “own” every mortgage in the country.1 Any other
explanation for why a mortgagee would assign beneficiary rights to a shell company
controlled by the mortgage servicing industry is ludicrous.
It is also not reasonably subject to dispute that the years 2008-2011 were a free-
fall for the mortgage industry where the country’s top home loan originators like
HOMECOMING, IndyMac Federal Bank, Downy Savings and Loan, Wachovia,
Washington Mutual, New Century, American Home Mortgage and Countrywide Bank,
FSB (COUNTRYWIDE) either failed (like dominos) and filed for bankruptcy or were
1 Christopher Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 Wm.
& Mary L. Review 116l; R.K. Arnold, Viewpoint, Inside MERS, Jan./ Feb. 2004, at 1 (“[O]ur mission is to capture every
mortgage loan in the country.”).
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 7 of 28 Page ID #:488
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 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
acquired by other financial institutions.2 HOMECOMING stopped funding loans and
was shifted by its parent company to RESCAP which later filed for bankruptcy;
servicing rights for Plaintiff RUTH A. ROSENBERG’s loan were sold from
HOMECOMING to COUNTRYWIDE and eventually to Defendant BOA while Plaintiff
was in default trying to get a loan modification. (Comp. ¶s 25, 28, 35, & 52.) Since the
MERS system tracks only servicing rights, since the originator was in a Chapter 11
bankruptcy, and since the transfer of servicing rights to Defendant BOA occurred while
Plaintiff was already in default, it is understandable that Defendant BOA referred
Plaintiffs’ loan to their “triage” unit and completely plausible that RESCAP/
HOMECOMING and the securitized trust all lost track of her loan. (Comp. ¶35.)
STATEMENT OF FACTS
On December 18, 1995 Plaintiffs RUTH ROSENBERG and ALFREDO
ROSENBERG became owners of 5351 Bindewal Road, Torrance, California 90505
(“the Bindewal Road property”) by Grant Deed (Los Angeles County Recorder Doc. No.
952006785) as husband and wife as Joint Tenants. (Comp. Ex. A.) On or about June 30,
2006 Plaintiff ALFREDO ROSENBERG granted the Bindewal Road property to
Plaintiff RUTH A. ROSENBERG as a married woman as her sole and separate property.
(Comp. ¶17 & Ex. B.) On or about June 30, 2006 Plaintiff RUTH ROSENBERG
2 See: Federal Deposit Insurance Corporation (FDIC) website Available at
(https://www.fdic.gov/bank/individual/failed/banklist.html)
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 8 of 28 Page ID #:489
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 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
originated a Deed of Trust in favor of HOMECOMING in the amount of one million
dollars ($1,000,000.00). (Comp. ¶ 18 & Ex. C.)
Plaintiff received a subprime mortgage originated for securitization that was
issued according to the MERS scheme with a MIN (MERS Identification Number) on
the first page of the Deed of Trust. (Comp. ¶11 & Ex. C.) The “Adjustable Rate Balloon
Rider” attached to Plaintiff’s Deed of Trust shows it to be a “pick-a-pay” loan which
allowed for four (4) payment options which were 1) the minimum payment option which
would cause negative amortization, 2) an interest only payment, 3) a payment amortized
over thirty (30) years, and 4) a payment amortized over fifteen (15) years. (Comp. Ex. C.
pages 30-31¶ H.) Beginning on or about July 1, 2006 Plaintiffs made mortgage
payments to HOMECOMING as servicer. (Comp. ¶ 21.) Beginning on or about June 1,
2007 Plaintiffs made their mortgage payments to COUNTRYWIDE BANK, FSB
(COUNTRYWIDE) as servicer. (Comp. ¶s 22-23.) On or about December 1, 2007,
GMAC became ALLY BANK and shifted all its bad divisions, including
HOMECOMING, to a new subsidiary called RESCAP.3
On January 11, 2008 COUNTRYWIDE was purchased by Defendant BOA.4
Beginning on or about June 1, 2008 Plaintiff missed mortgage payments so as to receive
a loan modification from servicer COUNTRYWIDE. (Comp. ¶27.) On or about August
3The Wall Street Journal, May 14, 2012: “ResCap Files for Protection Under Chapter 11,” by Andrew R. Johnson, Available
at: (http://www.wsj.com/articles/SB10001424052702304192704577403782887891126) See also:
http://rescapliquidatingtrust.com/)
4 “Countrywide rescue: $4 billion,” by David Ellis, CNNMoney.com, Available at:
(http://money.cnn.com/2008/01/11/news/companies/boa_countrywide/).
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 9 of 28 Page ID #:490
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 4
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
1, 2008, RESCAP, the parent company of HOMECOMING, shut down and notified all
brokers that they would no longer originate HOMECOMING loans through their
wholesale channel. (Comp. ¶25.) On September 1, 2008 Plaintiff’s mortgage bill from
COUNTRYWIDE showed a principal balance of one million seventy four thousand
four-hundred sixty nine dollars and nineteen cents ($1,074,469.19) which had increased
their principal balance by approximately seventy-four thousand dollars ($74,000.00) in
negative amortization. (Comp. Ex. D.)
Beginning on or about May 1, 2009 Plaintiffs began receiving mortgage payments
from Defendant Bank of America, N.A. (BOA) as servicer while in default. (Comp.
¶29.) On or about September 10, 2009 Plaintiff RUTH A. ROSENBERG entered into a
loan modification with Defendant BOA. (Comp. ¶30 & Ex. F.) On or about October 1,
2009 Plaintiff began paying Defendant BOA the payment stated on their loan
modification which was three thousand fifty-five dollars and fifteen cents ($3,055.15).
(Comp. ¶32 & Ex. F.)
On or about May 1, 2010 Defendant BOA began sending delinquency notices
even though Plaintiff was not in default of the loan modification. (Comp. Ex. ¶38.) On
or about June 21, 2010, Defendant BOA’s agent SARNICKY told Plaintiff to pay an
increased payment of three thousand three-hundred and eighty-eight dollars ($3,388.00)
due to an escrow shortfall. (Comp. ¶35.) Beginning July 1, 2010 Plaintiff made the
increased payment. (Comp. ¶38.)
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 10 of 28 Page ID #:491
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 5
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
On October 18, 2010 Defendant BOA employee Nicholas Clavadetscher, in his
capacity as “certifying officer” for Defendant MERS, recorded an ASSIGNMENT OF
THE DEED OF TRUST from HOMECOMING to BAC Home Loans Servicing LP fka
Countrywide Home Loans Servicing LP (“BAC”) on the authority of MERS “solely as
nominee for Homecomings Financial Network, Inc.” (RJN-2.) An ASSIGNMENT in
anticipation of foreclosure is common, but Plaintiff was not in default at the time of this
ASSIGNMENT and there was no reason for a foreclosure to be imminent. (Comp. ¶38.)
Defendant BOA assumed the servicing rights for Plaintiff’s loan when it assumed the
assets of COUNTRYWIDE, but this was an ASSIGNMENT from the lender to a
servicer that bypassed the securitized trust as beneficiary. (Comp. ¶19 & Ex. C.)
On or about March 5, 2011, Defendant BOA again told Plaintiff that she had to
pay an increased payment which would now be three-thousand eight hundred eighty-
eight dollars ($3,888.00) due to an escrow shortfall. (Comp. ¶40.) Beginning on or
about March 5, 2011 Plaintiff made the new increased payment. (Comp. ¶40.) On or
before March 1, 2011, Plaintiffs allege that Defendant BOA wiped all history of
servicing and beneficiary rights from the MERS database. (Comp. ¶s 36-37 & EX. F.)
On April 15, 2011 Defendant BOA employee JOHNSON, in her capacity as
“Assistant Secretary” of MERS, authorized a second (2d) ASSIGNMENT OF THE
DEED OF TRUST from the original lender to Defendant BOA. (Comp. Ex. F; RJN-3.)
This ASSIGNMENT named the original lender as “MERS, Inc., as Nominee for
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 11 of 28 Page ID #:492
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 6
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
Homecoming Financial Network, Inc.” and assigned the mortgage to BAC in the same
capacity as the prior ASSIGNMENT. (Comp. Ex. J; RJN-2; RJN-3.) Plaintiffs’
payments were current, not in default, and there was therefore still no reason to
anticipate foreclosure. (EFC Doc. 8, p.3, l. 21-23; Comp. ¶49; RJN-3.)
On October 17, 2011 Defendant BOA caused a NOTICE OF DEFAULT to be
recorded by trustee Recontrust even though Plaintiff was not in default of the loan
modification. (Comp. ¶48 & Ex. I.) This is contrary to Defendants’ allegation in their
MTD that Plaintiff was in default at the time of recording of the NOTICE OF
DEFAULT. (Comp.¶48; ECF Doc. 21, p.2, ls.24-27.) On or about November 1, 2011
Defendant BOA refused payment from Plaintiff which was the first payment missed
since Plaintiffs began paying under their modification on or about October 1, 2009.
(Comp. ¶50.)
On November 3, 2011 Plaintiff filed a verified complaint (case no: BC472813) in
Los Angeles Superior Court against BAC Home Loans Servicing, LP and Defendant
Bank of America, N.A. which was removed to United States Central District Court
(CV11 10597-CAS-CWx) on December 22, 2011. On May 14, 2012 RESCP and its
subsidiary HOMECOMING went into Chapter 11 Reorganization. (Comp. ¶52.)
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 12 of 28 Page ID #:493
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 7
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
On May 20, 2013 the Court dismissed Plaintiff RUTH A. ROSENBERG’s First
Amended Complaint with prejudice after Plaintiff failed to file a second amended
complaint as permitted by the Court.5 (CV11 10597-CAS-CWx – ECF Doc. 33.)
On or about December 13, 2013, Plaintiff RUTH A. ROSENBERG received a
mortgage statement from Defendant BOA in the amount of three thousand six hundred
twenty-seven dollars and forty-five cents ($3,627.45). (Comp. ¶55.) Plaintiffs made
payments of this amount from January 1, 2014 until June 1, 2014. (Comp. ¶55.)
On December 17, 2013 Defendant BOA authorized trustee Recontrust to record a
NOTICE of TRUSTEE’s SALE for January 9, 2014. (RJN-6.) On January 8, 2014
Plaintiff RUTH A. ROSENBERG filed a Chapter 13 Bankruptcy.6
On or about June 1, 2014 Defendant BOA refused Plaintiffs’ payment of three
thousand six hundred twenty-seven dollars and forty-five cents ($3,627.45). (Comp.
¶55.) On June 24, 2014 Defendant TRUSTEE CORPS, as an agent of Defendant BOA,
recorded another NOTICE OF TRUSTEE’s SALE pursuant to the power of sale in the
Deed of Trust “in favor of Mortgage Electronic Registration Systems, Inc. as nominee
for Homecomings Financial Network, Inc. as Beneficiary.” (Comp. ¶56 & EXs. C & J;
RJN-9.) Defendants TRUSTEE CORPS and BOA thereby continued to use the MERS
identity after all record of Plaintiff’s loan had been wiped from the MERS system and
5 Plaintiffs’ complaint mistakenly states in ¶51 that this was a dismissal without prejudice.
6 Bankruptcy case number 2-14-bk-10381-VZ - filed January 8, 2014 dismissed October 28, 2014.
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 13 of 28 Page ID #:494
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 8
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
Defendant BOA had claimed ownership through recorded ASSIGNMENTS to
themselves.
On September 25, 2015 Plaintiffs RUTH A. ROSENBERG and ALFREDO
ROSENBERG filed the instant complaint for Civil RICO remedies authorized by 18
U.S.C. 1961 for statutory damages to both Plaintiffs resulting from actions by
Defendants BOA and MERS to force Plaintiff RUTH E. ROSENBERG into foreclosure
so as to cover up their bank and mail fraud under 18 U.S.C. §1341 and §1344.
STANDARD OF REVIEW
When considering a Rule 12(b)(6) Motion to Dismiss this Court must accept as
true all allegations in the complaint as well as inferences to be drawn from them Pareto
v. F.D.I.C., 139 F. 3d 696, 699 (9th Cir. 1988.) The complaint must be read in the light
most favorable to the non-moving party. Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001); Parks Sch. Of Bus. Inc. v Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995). Legal conclusions can provide the framework of a complaint, but they must
be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1950 (2009). Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct.
1955 (2007.) Determining whether a complaint states a plausible claim for relief is “a
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 14 of 28 Page ID #:495
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 9
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
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 129 S. Ct. at 1950.
LEGAL ARGUMENT
I. PLAINTIFF ALFREDO ROSENBERG HAS A COMMUNITY PROPERTY
INTEREST IN THE FUNDS USED TO PAY DEFENDANTS.
The elements of a civil claim under the Racketeer Influenced and Corrupt
Organizations (RICO) Act are "(1) conduct; (2) of an enterprise; (3) through a pattern (4)
of racketeering activities (known as 'predicate acts'); (5) causing injury to the plaintiff's
'business or property.'" Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996.) In a Civil
RICO claim under 18 U.S.C. §1962 a RICO plaintiff must make a threshold showing
that the Plaintiff suffered an injury to business or property and that 2) the plaintiff’s
injury was caused by the defendant’s violation of §1962. 18 U.S.C. §1964(c). The fifth
element has two subparts: the plaintiff must show that the injury was proximately caused
by the conduct and that he has suffered a concrete financial loss. Chaset v. Fleer/Skybox
Int'l, 300 F.3d 1083, 1086 (9th Cir. 2002.)
The predicate acts by Defendant BOA to fraudulently ASSIGN this loan to
themselves and to wipe all history of the loan from the MERS database are connected to
the actions to force Plaintiff RUTH A. ROSENBERG into foreclosure by (twice) upping
her payment amount and eventually refusing her payments. (Comp. ¶65.) Although
Plaintiff RUTH A. ROSENBERG is the titled owner of the Bindewal Road property she
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 15 of 28 Page ID #:496
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 10
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
alleges that the payments she made to Defendant BOA were not remitted to her actual
beneficiary which was a securitized trust and/ or the RESCAP/ HOMECOMING
bankruptcy, but were kept by Defendant. (Comp. ¶68.) These payments came from
Plaintiffs’ community marital funds. (Comp. ¶68.)
Congress enacted RICO “to combat organized crime, not to provide a federal cause
of action and treble damages for personal injuries. Oscar v. Univ. Students Co-
Operative Ass'n, 965 F.2d 783, 786 (9th Cir. 1992.) Therefore a RICO plaintiff only has
standing if, and can only recover damages to the extent that, he has been injured in his
business or property by [reason of] the conduct constituting the violation.” Holmes v.
Sec. Inv’r Prot. Corp., 503 U.S. 258, 279, 112 S.Ct. 1311, 1323 (1992.) Since standing
in a Civil RICO complaint is related to injury, and since Plaintiff ALFREDO
ROSENBERG has been injured, he has standing under 18 U.S.C. §1962.
II. PLAINTIFFS’ DUE PROCESS RIGHTS ARE NOT PREEMPTED BY THE
DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL
A. PLAINTIFFS’ CLAIMS OCCURRED OVER A DIFFERENT PERIOD
OF TIME, ADDRESS DIFFERENT ACTIONS BY DEFENDANTS,
AND ALLEGE DIFFERENT INJURIES TO PLAINTIFFS.
The doctrine of Res Judicata, or claim preclusion, prevents re-litigation of the same
causes of action in a second suit between the same parties or parties in privity with them.
Planning & Conservation League v. Castaic Lake Water Agency, 180 Cal. App. 4th 210,
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 16 of 28 Page ID #:497
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 11
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
226, 103 Cal. Rptr. 3d 124, 138 (2009). Claim preclusion applies when “(1) the decision
in the prior proceeding is final and on the merits; (2) the present proceeding is on the
same cause of action as the prior proceeding; and (3) the parties in the present
proceeding or parties in privity with them were parties to the prior proceeding.”
Fed’n of Hillside & Canyon Assns. v. City of L.A., 126 Cal. App. 4th 1180, 1202, 24 Cal.
Rptr. 3d 543, 557 (2004.) However, the doctrine of res judicata must conform to the
mandate of due process of law that no person be deprived of personal or property rights
by a judgment without notice and an opportunity to be heard. Bernhard v. Bank of Am.
Nat'l Tr. & Sav. Asso., 19 Cal. 2d 807, 811, 122 P.2d 892, 894 (1942.)
Plaintiff RUTH ROSENBERG’s prior complaint contains different causes of action
and addresses unauthorized additions to Plaintiff’s loan balance that occurred prior to the
loan modification she signed on September 10, 2009. (CV11 10597-CAS-CWx – ECF
Doc. 1 ¶19.) Plaintiffs’ current complaint makes claims based on events that occurred
after that time and damages incurred after the prior complaint had been dismissed.
(Comp. ¶55.) The doctrine of Res Judicata does not apply where Plaintiff was unable to
rely on a theory or to seek a remedy because the damages occurred after adjudication.
Branson v. Sun-Diamond Growers, 24 Cal. App. 4th 327, 344, 29 Cal. Rptr. 2d 314, 323
(1994.)
//
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 17 of 28 Page ID #:498
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 12
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
B. THE ISSUES IN PLAINTIFFS’ CURRENT COMPLAINT WERE NOT
LITIGATED IN THE PRIOR COMPLAINT
The doctrine of Res Judicata bars claims that have either been litigated or that could
have been litigated from being litigated again and the doctrine of collateral estoppel bars
issues that have been litigated from being litigated again. People v. Sims, 32 Cal. 3d 468,
484, 186 Cal. Rptr. 77, 87, 651 P.2d 321, 331 (1982.) People v. Sims enumerated the
three essential elements necessary to bar re-litigation of an issue based on the doctrine of
collateral estoppel which are "if (1) the issue necessarily decided at the previous
[proceeding] is identical to the one which is sought to be relitigated; (2) the previous
[proceeding] resulted in a final judgment on the merits; and (3) the party against whom
collateral estoppel is asserted was a party or in privity with a party at the prior
[proceeding]." Sims, supra at 484. In applying the first Sims element, the issue of injury
related to criminal bank and mail fraud, and the actions taken to cover it up, was not
previously litigated at the prior proceeding. Sims, supra at 484.
Defendants 12(b)(6) motion reframes the issues in the current complaint to be the
issue of the escrow shortage and the issue of (wrongful) foreclosure but these are not
Plaintiffs’ causes of action or issues. (Comp. ¶s 27-30.) What is at issue in the instant
complaint is whether one financial institution (Defendant BOA) stole from another
financial institution (the RESCAP/ HOMECOMING bankruptcy and/or the securitized
trust) and whether Plaintiff can plausibly show this by a preponderance of the evidence.
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 18 of 28 Page ID #:499
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 13
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
Sedima v. Imrex Co., 473 U.S. 479, 481, 105 S.Ct. 3275, 3277 (1985.) What is also at
issue is whether Plaintiffs can show that they have injuries and that Defendants’ actions
proximately caused these injuries. Dymits v. American Brands, Inc., 1996 U.S. Dist.
LEXIS 19742, *25 (N.D. Cal. Dec. 31, 1996). The judgment that Plaintiffs seek is not a
contract judgment, but a judgment that the “chargeable” actions taken against Plaintiff
RUTH A. ROSENBERG by Defendants BOA and Defendant MERS resulted in injuries
to both Plaintiffs. Sedima v. Imrex Co., 473 U.S.at 481; 18 U.S.C. §1341 and §1344.
III. PLAINTIFFS RICO CLAIM FOR DAMAGES DOES NOT REQUIRE
PROSECUTION OF OR INDICTMENT OF DEFENDANTS.
A. DEFENDANT BOA’S ACTIONS ARE “CHARGEABLE” AND
“INDICTABLE” UNDER FEDERAL CRIMINAL STATUTES WHICH IS
SUFFICIENT FOR PLAINTIFFS’ CLAIMS.
Plaintiffs’ allegations of criminal acts in their complaint are not presented so as to
charge or indict Defendants, but as predicate acts of racketeering activity sufficient to
bring a Civil RICO claim. (ECF Doc. 21 p. 9, l. 14-16; Comp. ¶65.) For the purposes of
a Civil RICO complaint predicate acts of racketeering activity need not be charged or
indicted by any court to be tethered to Plaintiffs’ Civil RICO complaint for damages. 18
U.S. Code §1961 (1) (B); United States v. Private Sanitation Indus. Ass'n, 793 F. Supp.
1114, 1129 (E.D.N.Y. 1992). These predicate acts need only be chargeable and
punishable under certain state law felony classifications or indictable under specific
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 19 of 28 Page ID #:500
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 14
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
federal criminal provisions. United States v. Private Sanitation Indus. Ass'n, 793 F.
Supp. 1114, 1120 (E.D.N.Y. 1992).
Defendant BOA cites Pederson v. Greenpoint Mtge. Funding Inc. for the proposition
that the “robo-signing” of ASSIGNMENTS – the term Defendant uses to describe the
MERS business model of allowing servicer employees to download corporate
documents and make themselves corporate officers so as to execute assignments –
cannot be actionable because it does not damage borrowers, but this a general conclusion
not supported by Pederson. (ECF Doc. 21 p. 9 fn. 2.; Pedersen v. Greenpoint Mortgage
Funding, Inc., 900 F. Supp. 2d 1071, 1082 (E.D. Cal. 2012).) Pederson, presented no
predicate acts under 18 U.S.C. §1961 and named only general acts by defendants which
it described as “criminal” including the use of the MERS corporation to foreclose on a
loan. Pederson, supra at 1079. Pederson does not stand for the assertion that the MERS
shell company never does damage to a borrower as Defendant claims here. (Pederson,
supra at 1082; ECF Doc. 21 p. 9 fn. 2.)
In Pederson the plaintiff made non-specific allegations that defendants perpetrated a
fraud by predicate acts that included writing loan documents and converting plaintiff’s
loan to a mortgage-backed security. Pederson, supra at 1082. Plaintiffs here have
alleged predicate acts of bank fraud and mail fraud including 1) that Defendant BOA
ASSIGNED a loan to themselves that belonged to the RESCAP/ HOMECOMING
Bankruptcy (RJN 2 & 3; Comp. ¶42 & Ex. F), 2) that Defendant BOA wiped all trace of
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 20 of 28 Page ID #:501
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 15
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
their loan from the MERS database to hide the connection to their true beneficiary
(Comp. ¶36 & Ex. J), and 3) that Defendants used the mail to initiate foreclosure when
Plaintiff had not defaulted. (Comp. ¶s 38 & 48-49). The predicate acts in Plaintiffs’
complaint by Defendant BOA and Defendant MERS in conspiracy that caused injury to
Plaintiffs are:
1. Defendant BOA ASSIGNED Plaintiff’s Deed of Trust to Defendant BOA to
defraud the true beneficiary which was RESCAP/ HOMECOMING. (Comp.
¶63.1.)
2. Defendant BOA removed all trace of Plaintiff’s loan from the MERS system to
hide any link to the RESCAP/ HOMECOMING bankruptcy or the securitized
trust. (Comp. ¶63.2.)
3. Defendant BOA and Defendant MERS recording a SUBSTIUTION OF
TRUSTEE as a beneficiary. (Comp. ¶63.3.)
4. Defendant BOA and Defendant MERS recorded a NOTICE OF DEFAULT with
Defendant BOA as a beneficiary. (Comp. ¶63.4.)
5. Defendant BOA and Defendant MERS recorded a NOTICE OF TRUSTEE’s
SALE with MERS as a “nominee” for HOMECOMING. (Comp. ¶63.)
Plaintiffs have also alleged damages to themselves that are tethered to these actions
of Defendants which are the actions taken by Defendant BOA and Defendant MERS in
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 21 of 28 Page ID #:502
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 16
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
conspiracy to force Plaintiff RUTH A. ROSENBERG into foreclosure so as to hide their
fraud. (Comp. ¶1.) These actions include:
1. Defendant BOA unilaterally increased Plaintiff RUTH ROSENBERG’s mortgage
payments on two occasions so that Plaintiffs were paying eight-hundred-thirty-
two dollars and eighty-five cents more than the amount on their modification.
(Comp. ¶s 35-40.)
2. On or about November 1, 2011 Defendant BOA reported to the credit agencies
that Plaintiff RUTH ROSENBERG’s last mortgage payment was February 1,
2011 which was a false statement since she was current at that time. (Comp. ¶52.)
3. On November 1, 2011, after Plaintiffs had met both unilateral increases in the
modified payment, Defendant BOA stopped accepting their payments thereby
forcing Plaintiff RUTH ROSENBERG into foreclosure. (Comp. ¶50.)
4. At all times Plaintiffs have been blocked from making payments to their actual
beneficiary.
B. PLAINTIFFS’ INJURIES RESULT FROM THE PREDICATE ACTS OF
DEFENDANT BOA AND DEFENDANT MERS IN CONSPIRACY.
A law review article once compared Defendant MERS to the two headed God Janus
because MERS claims to be both the owner and the agent of the owner on every loan
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 22 of 28 Page ID #:503
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 17
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
where it appears.7 The analogy to Janus is ironic since MERS claims two heads, but
actually has no head, being a shell company strictly controlled by the servicer members
that own it and use it. (Comp. ¶16.) Defendant BOA here refers to corporate officers of
MERS as robo-signers, in apparent recognition of Defendant MERS’ headlessness, but
these MERS agents are actually employees of Defendant BOA and corporate officers of
MERS making (both) their corporate employers liable for conspiracy. (ECF Doc. 21 p.9,
fn.2.)
In their 12(b)(6) MTD Defendant BOA claims no conspiracy can stand as Plaintiffs
claims are premised on “recording of foreclosure notices,” which are “privileged
communications.” (ECF Doc. 21 fn.3 citing Civ. Code § 2924(d)(1).) Defendant again
misstates Plaintiffs’ case. (Comp. ¶24.) Whether or not this Court agrees with the
plausibility of Plaintiffs’ allegations, the allegations that Defendants BOA and MERS
1) recorded an ASSIGNMENT to Defendant BOA when Defendant BOA was not the
beneficiary and 2) wiped the loan history from the MERS database to sever the
connection to the true beneficiary, these allegations constitute Bank Fraud between
financial institutions pursuant to 18 U.S.C. §1861 and a conspiracy charge can stand.
Iqbal, 129 S. Ct. at 1950.
//
7 Christopher Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 Wm.
& Mary L. Review 113.
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 23 of 28 Page ID #:504
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 18
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
IV. DEFENDANTS VIOLATED THE FDCPA BECAUSE THEY WERE
NEITHER BENEFICIARY NOR SERVICER.
If Defendant BOA was servicing on behalf of a securitized trust there would have
been a (recorded) ASSIGNMENT from the lender to the trust before a NOTICE OF
DEFAULT was recorded. This ASSIGNMENT to the trust is not required by California
state law, but is required by the securitized trusts’ Pooling and Servicing Agreement
which requires a (recorded) ASSIGNMENT before the closing date of the trust and any
foreclosure action by the servicer. Glaski v. Bank of Am., 218 Cal. App. 4th 1079, 1085-
86, 160 Cal. Rptr. 3d 449, 454 (2013.) Glaski challenged the VOID nature of these
assignments recorded after the closing date of the trust, but they are recorded because a
recorded ASSIGNMENT is required by the trust before the servicer can foreclose.
Glaski, supra at 1085.
Plaintiffs allege that Defendant BOA kept all of Plaintiff’s payments from the time
they took over servicing rights from COUNTRYWIDE and never serviced the loan for
any beneficiary. (Comp. ¶28.) Plaintiffs’ allegation is evidenced by the (recorded)
ASSIGNMENT of a MERS mortgage destined for securitization directly from the
lender/ originator to a servicer that then claimed to be the beneficiary. (Comp. ¶s 42-44
& EX. F; RJN 1 & 2.) Plaintiffs allege that Defendant BOA ASSIGNED the loan to
them so as to defraud the RESCAP/ HOMECOMING Bankruptcy and/ or the securitized
trust which constitutes Bank Fraud in violation of 18 U.S.C. §1861. (Comp. ¶1.)
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 24 of 28 Page ID #:505
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 19
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
Defendant BOA makes an inherently false argument when they refer to themselves as
a “former servicer” with power to enforce the power of sale clause in the deed of trust.
(ECF Doc. 21 p.11, l. 19-20.) Defendant cannot claim they are a “former servicer” when
there is no evidence of a recorded ASSIGNMENT to the trust before the NOTICE OF
DEFAULT was recoded. (Id; Comp. EX. F.) The evidence is that Defendants were
supposed to be acting as a servicer, yet they ASSIGNED the loan to themselves as
beneficiary directly from the lender. (Comp. EX. F.)
The power of sale in Plaintiff’s mortgage exists only if she is actually in default and
only then on behalf of the proper beneficiary. (Comp. Exs. C ¶9 & I.) Defendant BOA
cannot claim they began foreclosure “when RUTH defaulted on her payments” because
Defendant recorded a NOTICE OF DEFAULT on October 17, 2011 after Plaintiff
RUTH A. ROSENBERG had made her October 1, 2011 payment and every prior
payment on her loan modification since the first payment on October 1, 2009. (Comp.
¶48-49.) Defendants violated the FDCPA with “a false and misleading representation”
by recording the NOTICE OF DEFAULT because it was an attempt to collect a debt on
behalf of themselves as beneficiary when they were not the beneficiary. (Heintz v.
Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 1490 (1995); 15 U.S.C. §1692e; Comp. ¶73
& Ex. I.) This recorded NOTICE by Defendant BOA, as well as the reports to the credit
bureaus regarding Plaintiff’s default, were also “abusive and unfair” since Plaintiff was
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 25 of 28 Page ID #:506
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 20
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
not in default at the time the credit bureaus were notified and at the time the NOTICE
OF DEFAULT was recorded. (Comp. ¶s 70 & 73 & Ex.I; 15 U.S.C. §1692e.)
V. PLAINTIFFS HAVE PLED A VIOLATION OF THE BUSINESS AND
PROFESSIONS CODE §17200 ET SEQ. BECAUSE THEY HAVE PLED
VIOLATIONS OF LAW AND DAMAGES
It is “unfair competition” when one bank steals a loan from another bank’s creditors,
as Plaintiffs allege, because it is unlawful, unfair, and a fraudulent business practice.
Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 1499, 82 Cal. Rptr. 2d 368, 371 (1999);
Cal Bus & Prof Code § 17200. Defendants are in violation of federal criminal statutes
including 18U.S.C. §1341, 18U.S.C. §1344, 18U.S.C. §1962(c), 18U.S.C. §1962(d), and
15 U.S.C. §1692e and “[t]he UCL borrows violations of the other laws . . . and makes
those unlawful practices actionable under the UCL”. Lazar, supra at 1505. Under the
“fraudulent” prong of the UCL a plaintiff must show that members of the public are
likely to be deceived, but not that Plaintiff was actually deceived. Buller v. Sutter
Health, 160 Cal. App. 4th 981, 982, 74 Cal. Rptr. 3d 47, 49 (2008)
A private plaintiff has standing under the UCL only if he "suffered injury in fact and .
. . lost money or property as a result of the unfair competition. Griley v. Nat'l City
Mortg., 2011 U.S. Dist. LEXIS 5061, *6, 2011 WL 219574 (E.D. Cal. Jan. 18, 2011);
Cal. Bus. & Prof. Code ¶17204. The UCL requires a loss of "money or property"
sufficient to constitute an "injury in fact" under Article III of the Constitution and also
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 26 of 28 Page ID #:507
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 21
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
requires a "causal connection" between the UCL violation and the injury in fact. Rubio v.
Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010.) Plaintiffs “suffered injury in
fact” and “lost money and property as a result of the unfair competition” because they
made mortgage payments to the wrong beneficiary and because Defendants BOA and
recorded a NOTICE OF DEFAULT when Plaintiff RUTH A. ROSENBERG was not in
default. (Comp. ¶s 70 & 73 & Ex. I; Cal Bus & Prof Code § 17200.)
CONCLUSION
A civil complaint under the Racketeer Influenced and Corrupt Organizations Act
is strictly reviewed and difficult to properly allege, however Plaintiffs believe that the
criminal acts at issue here, and the causal link to Plaintiffs’ damages, warrant RICO
penalties. Plaintiffs seek leave to amend and perfect if their allegations are insufficient
or unartfully pled.
Dated: November 6, 2015 ADVOCATE LEGAL
By: /s/ Susan M. Murphy .
Susan M. Murphy
Attorney for Plaintiffs
RUTH A. ROSENBERG &
ALFREDO ROSENBERG
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 27 of 28 Page ID #:508
Rosenberg v. Bank of America, N.A. et al/ 2:15-cv-7518-PSG-AGRx / OPPOSITION TO Defendant’s MOTION TO DISMISS Page 22
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
Case 2:15-cv-07518-PSG-AGR Document 26 Filed 11/06/15 Page 28 of 28 Page ID #:509
