Case No. 5:16-Cv-01518-Jgb (DTBX) Notice of Motion and Motion To Dismiss Plaintiffs' First Amended Complaint

Case 5:16-cv-01518-JGB-DTB Document 50 Filed 12/15/16 Page 1 of 33 Page ID #:377
1 GREEN & HALL, LLP

HOWARD D. HALL, State Bar No. 145024
2 hdhall@greenhall.com
RACHEL C. ZWERNEMANN, State Bar No. 286515
3 rzwernemann@greenhall.com
1851 East First Street, 10th Floor
4 Santa Ana, California 92705-4052
Telephone: (714) 918-7000
5 Facsimile: (714) 918-6996
6 Attorneys for Defendants
The Bank of New York Mellon as Trustee
7 for Structured Asset Mortgage
Investments II Inc. Mortgage Pass-
8 Through Certificate Series 2005-AR8 and
Nationstar Mortgage LLC (erroneously
9 sued as Nation star Mortgage)
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION
12
13 Socorro Diaz & Francisco Diaz, CASE NO. 5:16-cv-01518 JGB(DTBx)
14 Plaintiffs, JUDGE: Hon. Jesus G. Bernal
CTRM: 1
15 vs.
NOTICE OF MOTION AND
16 GB Inland Properties, LLC and/or Its MOTION TO DISMISS
Successors and/or Assignees In Interest; PLAINTIFFS’ FIRST AMENDED
17 The Bank of New York Mellon as COMPLAINT BY DEFENDANTS
Trustee for Structured Asset Mortgage THE BANK OF NEW YORK
18 Investments II, Inc., Mortgage Pass MELLON AS TRUSTEE FOR
thorough Certificates Series2005-AR8; STRUCTURED ASSET
19 Nation star Mortgage; Continental HL- MORTGAGE INVESTMENTS II
011 Trust; Rafael Perez; Quality Loan INC. MORTGAGE PASS-
20 Servicing, Platinum Capital Group and THROUGH CERTIFICATE SERIES
Does 1 through 100 Inclusive, 2005-AR8 AND NATIONSTAR
21 MORTGAGE LLC;
Defendants. MEMORANDUM OF POINTS AND
22 AUTHORITIES IN SUPPORT
THEREOF
23
Filed concurrently with Request for
24 Judicial Notice and Proposed Order
25 DATE: January 23, 2017
TIME: 9:00 a.m.
26 CTRM: 1
JUDGE: Hon. Jesus G. Bernal
27
ACTION FILED: July 12, 2016
28 TRIAL DATE: October 3, 2017
Case No. 5:16-cv-01518-JGB(DTBx)
NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT
P:\DOCS\Nationstar.Diaz(Socorro)\Pleadings\MTD.FAC.docx
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

2 PLEASE TAKE NOTICE that, on January 23, 2017, or as soon as thereafter
3 the matter may be heard in Courtroom 1 of the above-entitled Court, Defendants
4 THE BANK OF NEW YORK MELLON AS TRUSTEE FOR STRUCTURED
5 ASSET MORTGAGE INVESTMENTS II INC. MORTGAGE PASS-THROUGH
6 CERTIFICATE SERIES 2005-AR8 and NATIONSTAR MORTGAGE LLC
7 (erroneously sued as Nation star Mortgage) (collectively “Defendants”) will bring
8 for hearing before the Honorable Judge Jesus G. Bernal, United States District Judge
9 in Courtroom 1 of the United States Courthouse located at 3470 Twelfth Street,
10 Riverside, CA 92501, a Motion to Dismiss the First Amended Complaint filed by
11 Plaintiffs SOCORRO DIAZ and FRANCISCO DIAZ (“Plaintiffs”).
12 Defendants move the Court to dismiss Plaintiffs’ claim pursuant to Fed. R.
13 Civ. P. 12(b)(6) on the grounds that the First Amended Complaint fails to state any
14 claim against Defendants upon which relief may be granted.
15 By this Motion, Defendants seek an Order from the Court granting the
16 following relief:
17 1. Dismissing Plaintiffs’ First Cause of Action against Defendants for
18 “Wrongful Foreclosure” because Plaintiffs have failed to state a claim against
19 Defendants for which relief may be granted.
20 2. Dismissing Plaintiffs’ Second Cause of Action for “Cancellation of
21 Deed” because Plaintiffs have failed to state a claim against Defendants for which
22 relief may be granted.
23 3. Dismissing Plaintiffs’ Third Cause of Action for “Quiet Title” because
24 Plaintiffs have failed to state a claim against Defendants for which relief may be
25 granted.
26 4. Dismissing Plaintiffs’ Fourth Cause of Action for “Negligence”
27 because Plaintiffs have failed to state a claim against Defendants for which relief
28 may be granted.
1 Case No. 5:16-cv-01518-JGB(DTBx)
1 5. Dismissing Plaintiffs’ Fifth Cause of Action for “Declaratory Relief”

2 because Plaintiffs have failed to state a claim against Defendants for which relief
3 may be granted.
4 6. Dismissing Plaintiffs’ Sixth Cause of Action for “Accounting” because
5 Plaintiffs have failed to state a claim against Defendants for which relief may be
6 granted.
7 This Motion is based on this Notice of Motion, the attached Memorandum of
8 Points and Authorities, all of the pleadings, files, and records in this proceeding, all
9 other matters of which the Court may take judicial notice, and any argument or
10 evidence that may be presented to or considered by the Court prior to its ruling.
11 This Motion is made following conference of counsel pursuant to L.R. 7-3,
12 which took place on December 6, 2016. The parties were unable to reach a
13 resolution that would eliminate the necessity for the instant motion.
14
15 DATED: December 15, 2016 Respectfully submitted,
16
GREEN & HALL, LLP
17
18
19 By: /s/ Rachel C. Zwernemann
Howard D. Hall
20
Rachel C. Zwernemann
21 Attorneys for Defendants
22 The Bank of New York Mellon as Trustee for
Structured Asset Mortgage Investments II Inc.
23 Mortgage Pass-Through Certificate Series 2005-
24 AR8 and Nationstar Mortgage LLC
(erroneously sued as Nation star Mortgage)
25
26
27
28
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ............................................................................................. 1
4 II. SUMMARY OF FACTS AND PROCEDURAL POSTURE .......................... 2
5 A. Summary of Facts ................................................................................... 2
6 B. Plaintiffs’ Bankruptcy Filings ................................................................. 4
7 C. Plaintiffs’ State Court Action.................................................................. 5
8 D. Procedural Posture .................................................................................. 5
9 III. DISCUSSION.................................................................................................... 5
10 A. The Applicable Legal Standard .............................................................. 5
11 B. Each of Plaintiffs’ Claims Fail as Plaintiffs have Failed to Tender ....... 7
12 C. Plaintiff’s FAC Must Be Dismissed for Failure to State Any
Claims Against Defendants Upon Which Relief May Be Granted ........ 8
13
1. Plaintiffs’ First Cause of Action for Wrongful Foreclosure
14 Fails as to Defendants ................................................................... 8
15 (a) Plaintiffs’ First Cause of Action is Fatally Uncertain ........ 9
16 (b) The Variation in Assessor’s Parcel Numbers is
Insufficient to Support Plaintiffs’ Claim for
17 Wrongful Foreclosure......................................................... 9
18 (c) Plaintiffs’ Have no Standing to Challenge
Assignment of the First Deed of Trust ............................. 11
19
2. Plaintiffs’ Second Cause of Action for Cancellation or
20 Alternately Reformation of the Deeds Fails as to
Defendants .................................................................................. 12
21
(a) Plaintiffs’ Second Cause of Action is Fatally
22 Uncertain .......................................................................... 12
23 (b) Plaintiffs’ Claims Based on the Cancellation of the
Loan are Barred by the Statute of Limitations ................. 13
24
3. Plaintiffs’ Third Cause of Action for Quiet Title Fails as to
25 Defendants .................................................................................. 14
26 4. Plaintiffs’ Fourth Cause of Action for Negligence Fails as
to Defendants .............................................................................. 15
27
5. Plaintiffs’ Fifth Cause of Action for Declaratory Relief
28 Fails as to Defendants Because the Relief Requested is
i Case No. 2:16-cv-01409-JAK-AGR
1 Duplicative of the Other Causes of Action Pled ........................ 16

2 6. Plaintiffs’ Sixth Cause of Action for Accounting Fails as
to Defendants .............................................................................. 17
3
D. Plaintiffs Entire FAC is Barred by the Doctrine of Judicial
4 Estoppel ................................................................................................. 18
5 1. Plaintiffs Have Taken Multiple Positions................................... 19
6 2. Plaintiffs’ positions were taken in judicial proceedings ............. 20
7 3. Plaintiffs were successful in asserting the first position............. 20
8 4. Plaintiffs’ positions are totally inconsistent ............................... 20
9 5. Plaintiffs’ first position was not taken as a result of
ignorance, fraud, or mistake ....................................................... 20
10
E. The Court Should Dismiss the Entire FAC With Prejudice and
11 Without Leave to Amend ...................................................................... 21
12 IV. CONCLUSION ............................................................................................... 22
13
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ii Case No. 2:16-cv-01409-JAK-AGR
1 TABLE OF AUTHORITIES
2 Page
3
CASES
4
Abagninin v. AMVAC Chem. Corp.
5 (9th Cir. 2008)545 F.3d 733 ............................................................................ 21
6 Abdallah v. United Savings Bank
(1996) 43 Cal.App.4th 1101 .............................................................................. 8
7
Arnolds Management Corp. v. Eischen
8 (1984) 158 Cal. App. 3d 575 ......................................................................... 7, 8
9 Ashcroft v. Iqbal
(2009) 556 U.S. 662, 129 S. Ct. 1937 ........................................................... 6, 9
10
Babb v. Superior Court
11 (1971) 3 Cal.3d 841 ......................................................................................... 16
12 Baldwin v. Marina City Properties, Inc.
(1978) 79 Cal. App. 3d 393 ............................................................................. 16
13
Bell Atlantic Corporation v. Twombly
14 550 U.S. 544, 127 S. Ct. 1955 ....................................................................... 6, 9
15 Billmeyer v. Plaza Bank of Commerce
(1995) 42 Cal.App.4th 1086 ............................................................................ 19
16
Cafferkey v. City and County of San Francisco
17 (2015) 236 Cal.App.4th 858 ........................................................................ 2, 10
18 California Ins. Guarantee Ass’n v. Superior Court
(1991) 231 Cal.App.3d 1617 ........................................................................... 17
19
Cardellini v. Casey
20 (1986) 181 Cal. App. 3d 389 ........................................................................... 17
21 Crist v. House & Osmonson, Inc.
(1936) 7 Cal.2d 556 ........................................................................................... 9
22
Distor v. U.S. Bank N.A.
23 (N.D. Cal. 2009) Case No. C. 09-02086 SI, 2009 WL 3429700 .................... 14
24 Doe v. United States
(9th Cir. 1995) 58 F.3d 494 ............................................................................. 21
25
Duley v. Westinghouse Elec. Corp.
26 (1979) 97 Cal.App.3d 430 ............................................................................... 12
27 FPCI RE-HAB 01 v. E & G Invs., Ltd.
(1989) 207 Cal.App.3d 1018 ............................................................................. 8
28
iii Case No. 2:16-cv-01409-JAK-AGR
1 Gray v. Walker
(1910) 157 Cal. 381 ......................................................................................... 14
2
Hanna v. Los Angeles County Sheriff’s Dept.
3 (2002) 102 Cal.App.4th 887 ............................................................................ 19
4 Humboldt Sav. Bank v. McCleverty
(1911) 161 Cal. 285 ........................................................................................... 7
5
International Engine Parts, Inc. v. Feddersen & Co.
6 (1998) 64 Cal.App.4th 345 ........................................................................ 18, 19
7 Intri-Plex Technologies, Inc. v. Crest Group, Inc.
(9th Cir. 2007) 499 F.3d 1048 ........................................................................... 6
8
Jackson v. County of Los Angeles
9 (1997) 60 Cal.App.4th 171 .............................................................................. 18
10 Jenkins v. JP Morgan Chase Bank, N.A.
(2013) 216 Cal. App. 4th 497 .......................................................................... 11
11
Karlsen v. American Savings and Loan Ass’n
12 (1971) 15 Cal. App. 3d 112 ........................................................................... 7, 8
13 Kelley v. Mortgage Elec. Reg. Sys., Inc.
(N.D. Cal. 2009) 642 F.Supp.2d 1048 ...................................................... 14, 15
14
Knapp v. Doherty
15 (2004) 123 Cal.App.4th 76 ................................................................................ 9
16 Lee v. City of Los Angeles
(9th Cir. 2001) 250 F.3d 668 ............................................................................. 6
17
Lopez v. Chase Home Fin. LLC
18 (E.D. Cal. 2009) Case No. 09-0449, 2009 WL 981676 .................................. 14
19 MCA, Inc. v. Universal Diversified Enterprises Corp.
(Ct. App. 1972) 27 Cal.App.3d 170 .................................................................. 7
20
Mendoza v. City of Los Angeles
21 (1998) 66 Cal.App.4th 1333 ............................................................................ 15
22 Miguel v. County Funding Corp.
(9th Cir. 2002) 309 F.3d 1161 ......................................................................... 13
23
Mullis v. United States Bank. Ct.
24 (9th Cir. 1987) 828 F.2d 1385 ........................................................................... 6
25 MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc.
(2005) 36 Cal.4th 412 ...................................................................................... 18
26
Newcomb v. Cambridge Home Loans, Inc.
27 (D. Hawaii 2012) 861 F.Supp.2d, 1153 .......................................................... 13
28
iv Case No. 2:16-cv-01409-JAK-AGR
1 Nguyen v. Calhoun
(2003) 105 Cal.App.4th 428 .............................................................................. 8
2
Nymark v. Heart Fed. Savings & Loan Assn.
3 (1992) 231 Cal.App.3d 1089 ............................................................... 15, 16, 17
4 People ex rel. Sneddon v. Torch Energy Services, Inc.
(2002) 102 Cal.App.4th 181 ............................................................................ 18
5
Price v. Wells Fargo Bank
6 (1989) 213 Cal.App.3d 465 .............................................................................. 17
7 Rieber v. OneWest Bank FSB
(S.D. Cal. May 6, 2014) No. 13-CV-2523-W JLB, 2014 WL 1796706 ........... 6
8
Teselle v. McLoughlin
9 (2009) 173 Cal.App.4th 156 ............................................................................ 17
10 Thomas v. Gordon
(2000) 85 Cal.App.4th 113 ........................................................................ 19, 21
11
Union Bank v. Superior Court
12 (1995) 31 Cal.App.4th 573 ............................................................................... 18
13 United States Cold Storage v. Great Western Sav. and Loan Ass’n
(1985) 165 Cal.App.3d 1214 ............................................................................. 7
14
Vasquez v. Residential Investments, Inc.
15 (2004) 118 Cal.App.4th 269 ............................................................................ 15
16 Williams v. Koenig
(1934) 219 Cal. 656 ........................................................................................... 7
17
Yvanova v. New Century Mortgage Corp.
18 (2016) 62 Cal.4th 919 ...................................................................................... 11
19 Zakaessian v. Zakaessian
(1945) 70 Cal.App.2d 721 ............................................................................... 12
20
21
STATUTES
22
15 U.S.C. § 1635........................................................................................................ 13
23
15 U.S.C. § 1635(f).................................................................................................... 13
24
15 U.S.C. § 1640(e) ................................................................................................... 13
25
Cal. Civ. Code § 2924................................................................................................ 12
26
Cal. Civ. Code § 3412................................................................................................ 12
27
Cal. Code Civ. Proc. § 761.020 ................................................................................. 14
28
v Case No. 2:16-cv-01409-JAK-AGR
1 RULES
2 Fed. R. Civ. P. 12(b)(6) ............................................................................................... 6
3 Fed. R. Civ. P. 8(a)(2).......................................................................................... 5, 6, 8
4 Fed. R. Evid. 201 ......................................................................................................... 7
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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vi Case No. 2:16-cv-01409-JAK-AGR
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 Plaintiffs SOCORRO DIAZ and FRANCISCO DIAZ (“Plaintiffs”) bring this
4 lawsuit in yet another misguided effort to unwind non-judicial foreclosure
5 proceedings and eviction. Plaintiffs complain against multiple defendants, including
6 moving Defendants THE BANK OF NEW YORK MELLON AS TRUSTEE FOR
7 STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. MORTGAGE
8 PASS-THROUGH CERTIFICATE SERIES 2005-AR8 (“BONY”) and
9 NATIONSTAR MORTGAGE LLC (erroneously sued as Nation star Mortgage)
10 (“Nationstar”) (collectively “Defendants”), with respect to the foreclosure of the
11 residential property located at 3891 Fox Tail Lane, Riverside, CA 92501 (the
12 “Subject Property”). (See First Amended Complaint [“FAC”], ¶ 10.) Plaintiffs’
13 claims are based on barebones, conclusory allegations for purported violations of
14 unspecified statues and also requesting equitable relief. Each claim is inherently
15 defective for lack of supporting factual allegations and because Plaintiffs’ claims are
16 time-barred.
17 Additionally, Plaintiffs filed Bankruptcy at least three times between 2010
18 and 2016 in an attempt to prevent the trustee’s sale of the Subject Property and
19 subsequent eviction. In these misuses of federal bankruptcy protection, Plaintiffs
20 failed to disclose their current claims against Defendants. Indeed, rather than
21 making a forthright disclosure of their assets, Plaintiffs chose instead to enjoy the
22 protection of an automatic stay and (in two actions) allow the bankruptcy cases to be
23 dismissed. Under these circumstances, Defendants respectfully submit that the
24 claims in the FAC are barred by the equitable doctrine of judicial estoppel.
25 Therefore, as explained herein, Plaintiffs’ FAC, even after amendment, fails
26 to plead sufficient and plausible facts to state a claim against Defendants and the
27 FAC should be dismissed in its entirety, with prejudice.
28 ///
1 II. SUMMARY OF FACTS AND PROCEDURAL POSTURE

2 A. Summary of Facts
3 On or about April 21, 2005, Plaintiffs obtained a $288,000 adjustable rate
4 mortgage loan from Platinum Capital Group (“Loan”). The Loan was secured by a
5 First Deed of Trust recorded against the Subject Property on May 3, 2005. (“First
6 Deed of Trust.”) (Request for Judicial Notice [“RJN”], Ex. A.) Concurrently with
7 the $288,000 Loan, Plaintiffs also obtained a $36,000 loan which was secured by a
8 Second Deed of Trust recorded also recorded against the Subject Property on May 3,
9 2005(“Second Deed of Trust”). (FAC, Ex. 4.)
10 The First Deed of Trust identifies the Subject Property in three ways:
11 (1) Street Address – 3891 Fox Tail Lane, Riverside CA 92509, (2) the Assessor’s
12 Parcel Number1 (“APN”) 170-060-048-2, and (3) the Legal Description –
13 PARCEL 1:
14 THE SOUTH 65 FEET OF THE NORTHERLY 660 FEET OF THE
EAST 112 FEET OF THE WEST 224 FEET OF LOT 32
15 RESUBDIVISION OF GLEN AVON HEIGHTS AS PER MAP
RECORDED IN BOOK 10 PAGE 100 OF MAPS IN THE OFFICE
16 OF THE COUNTY RECORDED OF RIVERSIDE COUNTY.
17 SAID NORTHERLY 660 FEET BEING MEASURED FROM THE
CENTER LINE OF BEN NEVIS BOULEVARD AND ON LINE
18 PARALLEL WITH THE WEST LINE OF SAID LOT, SAID EAST
112 FEET OF THE WEST 224 FEET BEING MEASURED ALONG
19 THE CENTER LINE OF BEN NEVIS BOULEVARD.
20 PARCEL 2:
21 THE SOUTH 65 FEET OF THE NORTH 595 FEET OF THE EAST
112 FEET OF THE WEST 224 FEET OF LOT 32 OF
22 RESUBDIVISION OF GLEN AVON HEIGHTS AS PER MAP
RECORDED IN BOOK 10 PAGE 100 OF MAPS IN THE OFFICE
23 OF THE COUNTY RECORDED OF RIVERSIDE COUNTY.
24 PARCEL 3:
25 A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS
26 1
“’APN’ – which stands for assessor’s parcel number- is a numerical identifier
27 associated with a particular piece of property for property tax assessment purposes.”
28 (Cafferkey v. City and County of San Francisco (2015) 236 Cal.App.4th 858, 861.)
1 OVER THE WESTERLY 20 FEET OF THE EASTERLY 106 FEET

OF THE WESTERLY 330 FEET OF LOT 32 OF RESUBDIVISION
2 OF GLEN AVON HEIGHTS AS PER MAP RECORDED IN BOOK
10 PAGE 100 OF MAPS, IN THE OFFICE OF THE COUNTY
3 RECORDED OF RIVERSIDE COUNTY.
4 PARCEL 4:
5 THE WEST 112 FEET OF LOT 32 OF RESUBDIVISION OF GLEN
AVON HEIGHTS, AS SHOWN BY MAP ON FILE IN BOOK 10
6 PAGE 100 OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFRONIA:
7
EXCEPTING THEREFROM THE NORTH 591 FEET THEREOF;
8 SAID NORTH 591 FEET BEING MEASURED FROM THE LINE
OF BEN NEVIS BOULEVARD ALONG THE WEST LINE OF SAID
9 LOT; SAID WEST 112 FEET BEING MEASURED ALONG THE
CENTER LINE OF BEN NEVIS BOULEVARD AS SHOWN ON
10 SAID MAP.
11 PARCEL 5:
12 A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGREES
OVER THE WEST 20 FEET OF LOT 32 OF RESUBDIVISION OF
13 GLEN AVON HEIGHTS AS SHOWN BY MAP ON FILE IN BOOK
10 PAGE 100 OF MAPS, RECORDS OF RIVERSIDE COUNTY,
14 CALIFORNIA;
15 EXCEPTING THEREFROM THE PORTION THEREOF INCLUDED
IN PARCEL 4 ABOVE;
16
ALSO EXCEPTING THEREFROM A NON-EXCLUSIVE
17 EASEMENT FOR INGRESS AND EGRESS OVER THE SOUTH 30
FEET OF NORTH 330 FEET OF WEST 224 FEET OF SAID LOT 32
18 AND OVER THE WEST 20 FEET OF THE EAST 106 FEET OF THE
WEST 330 FEET OF SAID LOT;
19
(RJN, Ex. A, pg. 20 of 20.)
20
21 Mortgage Electronic Registration Systems, Inc. (“MERS”) (as nominee for
22 the beneficiary under the First Deed of Trust) assigned the First Deed of Trust to
23 BONY on September 26, 2011. (RJN, Ex. B.) The Assignment of Deed of Trust
24 was recorded against the Subject Property on October 4, 2011. (Id.) Due to
25 Plaintiffs’ default on the Loan, a Notice of Default and Election to Sell Under Deed
26 of Trust was recoded on May 23, 2012 indicating that the Loan was past due amount
27 of $85,694.47. (Id. at Ex. C.) Once again, on March 3, 2014, a Notice of Default
28 ///
1 was recorded indicating the Loan was past due in the amount of $126,565.33. (Id. at
2 Ex. D.)
3 Defendant QUALITY LOAN SERVICE CORPORATION (“QLS”) was
4 substituted as Trustee on or about December 6, 2014 and a Notice of Trustee’s Sale
5 was recorded on February 9, 2015. (RJN, Ex. E & F.) Pursuant to the Trustee’s
6 Deed Upon Sale recorded against the Subject Property on March 18, 2015, the
7 Subject Property reverted back to BONY at the Trustee’s Sale held on March 4,
8 2015. (Id. at Ex. G.) The Trustee’s Deed Upon Sale provides the exact legal
9 description of the Subject Property as found in the First Deed of Trust. (See RJN,
10 Ex. A, pg. 20 of 20; Ex. G, pg. 1-2.) After foreclosure, the Subject Property was
11 then transferred from BONY to GB Inland Properties, LLC on or about May 20,
12 2016. (Id. at Ex. F.)
13 B. Plaintiffs’ Bankruptcy Filings
14 On August 19, 2010, Plaintiffs filed Chapter 7 Bankruptcy in the Central
15 District of California – Case No. 6:10-bk-36374-CB. (RJN, Ex. I & J.) Plaintiffs
16 acknowledged the First Deed of Trust encumbering the Subject Property, however
17 listed no affirmative claims against Defendants. Plaintiffs received standard
18 discharge on December 2, 2010. (RJN, Ex. I & K.)
19 On April 28, 2015, Plaintiffs filed Chapter 13 Bankruptcy in the Central
20 District of California – Case No. 6:15-bk-14247-SY. (RJN, Ex. L, M & N.)
21 Plaintiffs again failed to list any affirmative claims against Defendants in their
22 Bankruptcy schedules. (See RJN, Ex. M & N.) Plaintiffs’ Chapter 13 Bankruptcy
23 was dismissed on May 19, 2015 for failure to file information. (RJN, Ex. O.)
24 On May 20, 2016, Plaintiffs again filed Chapter 13 Bankruptcy in the Central
25 District of California – Case No. 6:16-bk-14537-SY. (RJN, Ex. P & Q.) Plaintiffs’
26 2016 Chapter 13 Bankruptcy was dismissed for failure to filed information on
27 June 7, 2016. (RJN, Ex. R.)
28 ///
1 C. Plaintiffs’ State Court Action

2 On May 18, 2015, Plaintiffs filed a Verified Complaint against BONY,
3 Nationstar, and QLS for Quiet Title to Real Property, Violation of California Home
4 Owners Bill of Rights, and Declaratory Relief in Riverside Superior Court, Case
5 No. RIC1505886. (RJN, Ex. S.) Plaintiffs’ lawsuit was dismissed for failure to
6 prosecute on December 24, 2015. (RJN, Ex. T.)
7 D. Procedural Posture
8 Plaintiffs filed their Complaint in the case at hand on July 12, 2016. The
9 Complaint was styled as a Class Action naming GB Inland Properties, LLC, BONY,
10 Nationstar, Continental HL-011 Trust, Rafael Perez, QLS, and Platinum Capital
11 Group as Defendants. BONY and Nationstar filed their Answer to the Complaint on
12 August 10, 2016. Defendant GB Inland, LLC filed a Motion to Dismiss and
13 Plaintiffs’ claims against GB Inland, LLC were dismissed by this Court without
14 prejudice on September 12, 2016. (See Dkt., 30.)
15 Plaintiffs filed a “Motion to Extend Time to File First Amended Complaint”
16 on November 14, 2016 citing counsel’s “need to attend pressing court cases.”
17 (Motion to Extend, Dkt., 45, 2:12-13.) The Court struck the document on
18 November 23, 2016 due to certain deficiencies. (Dkt., 46 & 48.) On November 23,
19 2016, the Court also extended the time to amend pleadings from November 14, 2016
20 to November 30, 2016. Ignoring the deadline graciously provided by the Court,
21 Plaintiffs filed their FAC on December 1, 2016. (See Dkt., 49.) Plaintiffs’ FAC
22 brings six new causes of action, discards all previous causes of action from the
23 Complaint and appears to exclude previous named Defendants GB Inland
24 Properties, Continental HL-011 Trust, Rafael Perez and Platinum Capital.
25 III. DISCUSSION
26 A. The Applicable Legal Standard
27 The sufficiency of a claim for relief is governed by Federal Rule of Civil
28 Procedure 8(a)(2), which requires that a pleading contain “a short and plain
1 statement of the claim showing that the pleader is entitled to relief[.] . . .” In Bell
2 Atlantic Corporation v. Twombly, 550 U.S. 544, 554-63, 127 S. Ct. 1955 (2007, the
3 U.S. Supreme Court held that plaintiffs could not satisfy Rule 8(a)(2) with mere
4 conclusory statements; rather, plaintiffs must include sufficient factual allegations to
5 make a claim at least plausible, as opposed to merely possible. Thus, under
6 Rule 12(b)(6), dismissal is proper when the plaintiff either lacks a “cognizable legal
7 theory” or where there is a “legally cognizable” right but the plaintiff fails to allege
8 sufficient facts to support the claim. (Twombly, 550 U.S. at 555–56; see also
9 Ashcroft v. Iqbal (2009) 556 U.S. 662, 129 S. Ct. 1937 [holding Twombly applies to
10 all civil actions].) Stated simply, if plaintiffs “have not nudged their claims across
11 the line from conceivable to plausible, their complaint must be dismissed.”
12 (Twombly, supra, 550 U.S. at 570.)
13 In addition, under Rule 12(b)(6), a court need not accept as true allegations in
14 a complaint that contradict facts which may be judicially noticed by the court.
15 (Mullis v. United States Bank. Ct. (9th Cir. 1987) 828 F.2d 1385, 1388.) Such
16 judicially noticeable facts, which the court may properly consider, include matters
17 of public record, as long as the facts noticed are not subject to reasonable dispute.
18 (Intri-Plex Technologies, Inc. v. Crest Group, Inc. (9th Cir. 2007) 499 F.3d 1048,
19 1052.) Also, contradictory allegations in a complaint are inherently implausible.
20 (See, e.g., Rieber v. OneWest Bank FSB (S.D. Cal. May 6, 2014) No. 13-CV-2523-
21 W JLB, 2014 WL 1796706, at *3.)
22 Finally, in ruling on a motion to dismiss, the Court may consider documents
23 outside the pleadings without the proceeding turning into summary judgment. (See
24 Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 688-89.) In particular, the
25 Court may consider (a) documents that are “properly submitted as part of the
26 complaint,” (b) documents on which plaintiff’s complaint necessarily relies and
27 whose authenticity is not contested, and (c) “matters of public record” of which the
28 ///
1 court may take judicial notice under Rule 201 of the Federal Rules of Evidence.
2 (Id.)
3 Under this standard, Plaintiffs’ allegations in the FAC are not sufficient and
4 the FAC should be dismissed in its entirety, with prejudice, as to Defendants as
5 explained below.
6 B. Each of Plaintiffs’ Claims Fail as Plaintiffs have Failed to Tender
7 The purpose of the FAC is clear: to unwind foreclosure of the Subject
8 Property, invalidate the First Deed of Trust and cure eviction of Plaintiffs. Plaintiffs
9 lack standing to challenge the non-judicial foreclosure proceedings, because
10 Plaintiffs have not complied with California’s “tender rule.”
11 California’s “tender rule” requires that, as a precondition to challenging a
12 foreclosure sale or any cause of action implicitly integrated with the sale, the
13 borrower must make a valid and viable tender of payment of the secured debt.
14 (Karlsen v. American Savings and Loan Ass’n (1971) 15 Cal. App. 3d 112, 117;
15 Arnolds Management Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 578.) For
16 example, parties cannot cancel a foreclosure sale unless they have tendered the
17 obligation in full. (See United States Cold Storage v. Great Western Sav. and Loan
18 Ass’n (1985) 165 Cal.App.3d 1214, 1222; MCA, Inc. v. Universal Diversified
19 Enterprises Corp. (Ct. App. 1972) 27 Cal.App.3d 170, 176-77 (“Some disposition
20 on the part of (defendant) to do equity by tendering the amount of the debt due is a
21 prerequisite to (a) demand for a judgment cancelling the trustee’s sale.”).) Tender is
22 not required when it would be inequitable. (Humboldt Sav. Bank v. McCleverty
23 (1911) 161 Cal. 285, 291.)
24 California law is clear: if a plaintiff asks the Court to exercise its equitable
25 powers to stop or set aside foreclosure proceedings, the plaintiff must first do equity
26 himself by paying the entire loan amount prior to sale. (Arnolds Mgmt. Corp., 158
27 Cal.App.3d at 577; Humboldt Sav. Bank, 161 Cal. at 290; Williams v. Koenig (1934)
28 219 Cal. 656, 660.) “The rationale behind the rule is that if plaintiffs could not have
1 redeemed the property [i.e., paid the full loan amount] had the sale procedures been
2 proper, any irregularities in the sale did not result in damages to the plaintiffs.”
3 (FPCI RE-HAB 01 v. E & G Invs., Ltd. (1989) 207 Cal.App.3d 1018, 1022.)
4 Courts strictly apply the tender rule, placing the onus on plaintiffs to make an
5 unambiguous tender of the entire amount due on the loan. (Nguyen v. Calhoun
6 (2003) 105 Cal.App.4th 428, 439.) Absent an alleged and actual tender, courts have
7 held that the complaint fails to state a cause of action. (Karlsen, 15 Cal.App.3d at
8 121; Arnolds Mgmt. Corp., 158 Cal.App.3d at 581; See also Abdallah v. United
9 Savings Bank (1996) 43 Cal.App.4th 1101, 1109.)
10 Plaintiffs’ FAC does not demonstrate that Plaintiffs have tendered the Loan
11 amount, that Plaintiff has the ability to do so, or set forth any facts showing that
12 equitable circumstances exist such that tender should not be required. As all causes
13 of action alleged against Defendants appear to stem from Plaintiffs’ attempt to
14 unwind the foreclosure sale, and whereas this attempt is fatally flawed absent a valid
15 tender, Defendants’ Motion to Dismiss should be granted based upon Plaintiffs’ lack
16 of tender alone.
17 C. Plaintiff’s FAC Must Be Dismissed for Failure to State Any Claims
18 Against Defendants Upon Which Relief May Be Granted
19 1. Plaintiffs’ First Cause of Action for Wrongful Foreclosure
20 Fails as to Defendants
21 Plaintiffs’ First Cause of Action for “Wrongful Foreclosure” is fatally
22 deficient because Plaintiffs’ fail to set forth a short and plain statement of the claim
23 showing that they are entitled to relied as required by Fed. Rule Civ. Proc., Rule
24 8(a)(2). Additionally, Plaintiffs’ claim that the “APNs” foreclosed upon were
25 different from the APN set forth in the DOT is insufficient to state claim under
26 California law for wrongful foreclosure. Finally, Plaintiff’s FAC fails to allege facts
27 sufficient to state a claim that Defendants had no authority to foreclose.
28 ///
1 (a) Plaintiffs’ First Cause of Action is Fatally Uncertain

2 Plaintiffs fail to identify any statute which Defendants allegedly violated with
3 respect to the First Cause of Action. Plaintiffs’ simply state “Defendants wrongfully
4 foreclosed on the subject properties parcels APN 170-060-060-2, 170-060-061-3
5 and APN 170-060-023-9.” (FAC, ¶ 32.) Plaintiffs’ have not put Defendants on
6 notice of the basis for relief sought and have failed to set forth any cognizable legal
7 theory. (See Twombly, 550 U.S. at 555–56; see also Ashcroft v. Iqbal (2009) 556
8 U.S. 662, 129 S. Ct. 1937 [holding Twombly applies to all civil actions].)
9 Plaintiffs’ failure to identify any legal basis for relief for their claim under the First
10 Cause of Action is fatal and supports Defendants’ request that the First Cause of
11 Action be dismissed.
12 (b) The Variation in Assessor’s Parcel Numbers is
13 Insufficient to Support Plaintiffs’ Claim for Wrongful
14 Foreclosure
15 Plaintiffs’ claim that foreclosure was wrongful because of a change in APNs
16 is insufficient under established California law. It is well settled that a “slight
17 deviation from statutory notice requirements” will not invalidate a foreclosure sale.
18 (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 93.) Additionally, in order to state a
19 claim for wrongful foreclosure, a plaintiff must allege facts showing that he/she was
20 prejudiced by the irregularity. (Id. at 96.) In Crist v. House & Osmonson, Inc.
21 (1936) 7 Cal.2d 556, analyzed by the court Knapp, supra, a foreclosure sale was
22 challenged by a defaulting borrower because the description of the property on the
23 notice of sale erroneously included a small vacant strip of land. (Id. at 557.) In
24 determining foreclosure was proper, the court concluded that “in absence of any
25 evidence that actual prejudice was suffered, the misdescription…must be of such a
26 substantial nature that prejudice is likely to result to the trustors. (Id. at 559.)
27 Parcel numbers assigned… need not correspond with actual
subdivisions, lots, tracts or other legal divisions or boundaries of land:
28 The assessor's “function is ‘to raise revenue and not to regulate the
1 division of land’ and ... he ‘will quite often combine or renumber

parcels for valid reasons entirely separate from the purpose of the
2 Subdivision Map Act....’ ” (62 Ops.Cal.Atty.Gen. 147, 149 (1979); see
also 59 Ops.Cal.Atty.Gen. 581 (1976) [assessor may combine several
3 subdivision lots into a single parcel for tax assessment purposes].)
4 (Cafferkey v. City and County of San Francisco (2015) 236 Cal.App.4th 858,
5 869.)
6 Here, the First Deed of Trust at issue contains a legal description of the
7 Subject Property (set forth above), the physical address of 3891 Fox Tail Lane,
8 Riverside, CA 92509 and an APN of 170-060-048-2. (RJN, Ex. A.) The Notice of
9 Trustee’s Sale recorded on February 9, 2015 lists the physical address of 3891 Fox
10 Tail Lane, Riverside, CA 92509 and lists APNs 170-060-060-2, 170-060-061-3 and
11 170-060-023-9. (RJN, Ex. F.) Finally, the Trustee’s Deed Upon Sale lists the
12 complete legal description of the Subject Property (matching precisely the legal
13 description contained in the First Deed of Trust) and also lists APNs 170-060-060-2,
14 170-060-061-3 and 170-060-023-9. (RJN, Ex. G.)
15 Further, each of the recorded documents directly reference the First Deed of
16 Trust executed by Plaintiffs on or about April 23, 2005 and recorded on May 3,
17 2005. (See RJN, Ex. F & G.) The issues which Plaintiffs raise with respect to the
18 APN numbers associated with the Subject Property do not support a claim for
19 wrongful foreclosure. Plaintiffs’ focus on the APN numbers which are subject to
20 change by the tax assessor are misguided. The legal description of the real property
21 secured by the First Deed of Trust is exactly consistent with the property foreclosed
22 upon at the Trustee’s Sale. Therefore, Plaintiffs have not stated a claim. (RJN,
23 Ex. A & G.)
24 More importantly, Plaintiffs’ FAC is devoid of any facts showing that
25 Plaintiffs suffered any actual prejudice as a result of different APNs listed on the
26 First Deed of Trust and the Notice of Trustee’s Sale and Trustee’s Deed Upon Sale.
27 Therefore, Plaintiffs’ First Cause of Action should be dismissed.
28 ///
1 (c) Plaintiffs’ Have no Standing to Challenge Assignment

2 of the First Deed of Trust
3 Plaintiffs’ vague assertion that foreclosure was wrongful due to improper
4 assignment of the First Deed of Trust is erroneous and Plaintiffs have no standing to
5 challenge assignment of the First Deed of Trust.
6 The Fourth Appellate District in Jenkins v. JP Morgan Chase Bank, N.A.
7 (2013) 216 Cal. App. 4th 497 (disapproved on other grounds by Yvanova v. New
8 Century Mortgage Corp. (2016) 62 Cal.4th 919, 939), thoroughly addressed and
9 unequivocally rejected the same argument Plaintiffs raise here. In Jenkins, the court
10 rejected the plaintiff’s securitization claims, determining that the plaintiff lacked
11 standing to contest the transfer of the note and deed of trust because the plaintiff was
12 an “unrelated third party to the alleged securitization, and any other subsequent
13 transfers of the beneficial interest under the promissory note.” (Id. at 515.) The
14 Court in Jenkins further reasoned that, even if the securitization was invalid, there
15 was no prejudice to the borrower-plaintiff as “her obligations under the note
16 remained unchanged.” (Ibid.)
17 Here, Plaintiffs allege that “Defendants wrongfully foreclosed on the subject
18 property because Defendant Nationstar was not properly assigned the deed of trust,
19 did not state the proper amounts due on the note on or the state the correct
20 description of the property being foreclosed on the Notice of default, Notice of sale
21 and notice of deed upon sale.” (FAC, ¶ 29.)
22 The public record establishes that Plaintiffs’ claims are baseless. MERS, as
23 beneficiary and nominee for the original lender under the First Deed of Trust,
24 assigned all beneficial interest in the First Deed of Trust to BONY on or about
25 September 26, 2011. (RJN, Ex. B.) After Plaintiffs’ default, an agent of the
26 beneficiary BONY recorded a Notice of Default on March 3, 2014. (Id. at Ex. D.)
27 BONY then named QLS as Substitute Trustee under the First Deed of Trust on
28 February 9, 2015. (Id. at Ex. E.) QLS, as trustee, recorded the Notice of Trustee’s
1 Sale on February 9, 2015. (Id. at Ex. F.) The Subject Property was then sold at
2 foreclosure sale to BONY on March 4, 2015. (Id. at Ex. G.) The foreclosure was
3 compliant with California law as set for in Cal. Civ. Code § 2924. Plaintiffs’ claims
4 challenging foreclosure are erroneous in light of the judicially noticeable facts and
5 those raised in Plaintiffs’ own FAC. Further, Plaintiffs have no standing to
6 challenge the assignment of the Loan as a basis to stop or unwind the foreclosure.
7 2. Plaintiffs’ Second Cause of Action for Cancellation or
8 Alternately Reformation of the Deeds Fails as to Defendants
9 Plaintiffs’ seek to invalidate four separate instruments without any sufficient
10 legal basis. (See FAC, ¶ 35.) As a preliminary matter and as discussed above,
11 Plaintiffs’ attempt to cancel the instruments fails due to Plaintiffs’ failure to tender.
12 Further, Plaintiffs’ claims that the loan was cancelled in 2005 and therefore
13 ineffective is barred by the statute of limitations. As discussed herein, Plaintiffs’
14 Second Cause of Action is profoundly defective.
15 (a) Plaintiffs’ Second Cause of Action is Fatally Uncertain
16 Plaintiffs’ second cause of action fails to set forth any factual or legal basis
17 for which Plaintiffs can specifically support their claim that the Notice of Default,
18 Substitution of Trustee, Trustee’s Deed Upon Sale and Grant Deed should be set
19 aside. (FAC, ¶ 35(a).)
20 Under section 3412 of the Civil Code, "[t]he court may cancel a written
21 instrument where there is a reasonable likelihood, if left outstanding, it may
22 seriously injure a person against whom it is void or voidable." (Duley v.
23 Westinghouse Elec. Corp. (1979) 97 Cal.App.3d 430, 432.) To state a cause of
24 action in this context, Plaintiffs must plead "facts constituting a deed's invalidity."
25 (See Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725.)
26 Plaintiffs have clearly failed to show any facts constituting the invalidity of
27 the instruments. Further, Plaintiffs and Defendants herein are no longer the owners
28 of the Subject Property. It is clear from judicially noticeable records that former
1 Defendant GB Inland Properties, LLC is the owner of the Subject Property. (RJN,
2 Ex. H.) Thus, Plaintiffs as former owners, who were rightfully foreclosed upon
3 after default, have no standing to assert claims based on the alleged invalidity of
4 certain instruments. Additionally, as set forth above, the issues raised by Plaintiffs
5 regarding inconsistent APN numbers do not support the relief request by Plaintiffs
6 for a complete unwinding of the foreclosure sale.
7 (b) Plaintiffs’ Claims Based on the Cancellation of the
8 Loan are Barred by the Statute of Limitations
9 Plaintiffs’ allege in their FAC that on April 26, 2005, Plaintiffs, just days after
10 executing the First Deed Trust, sent notice to the original lender Platinum Capital
11 Group that they were cancelling the loan. (FAC, ¶ 15.) Plaintiffs now attempt to
12 obtain relief based on this theory of cancellation more than 10 years after the
13 consummation of the Loan. Plaintiffs’ claims are necessarily barred and must be
14 dismissed.
15 Plaintiffs’ FAC fails to raise any statute supporting the cancellation claim.
16 Even if Plaintiffs’ had referenced the Truth in Lending Act (“TILA”), their claims
17 would still be barred.
18 In order to effectively rescind a loan, a plaintiff is required to give notice to
19 the creditor of his or her intention to do so within three years after consummating of
20 the loan. (15 U.S.C. § 1635.) “[S]ection 1635(f) represents an ‘absolute limitation
21 on rescission actions’ which bars any claims filed more than three years after the
22 consummation of the transaction.” (Miguel v. County Funding Corp. (9th Cir. 2002)
23 309 F.3d 1161, 1163.) Further, any action for TILA damages must be brought
24 “within one year from the date of the occurrence of the violation (Newcomb v.
25 Cambridge Home Loans, Inc. (D. Hawaii 2012) 861 F.Supp.2d, 1153, 1161-62.; 15
26 U.S.C. § 1640(e).)
27 Here, because Plaintiffs admitted they consummated the loan in 2005 and
28 brought suit in January 2016, over ten years later, Plaintiffs’ claims for damages are
1 time-barred. There simply is no statutory period in this jurisdiction that allows for
2 Plaintiffs’ claims under a theory of rescission in 2005 when Plaintiffs’ filed their
3 Complaint in 2016 and even acknowledged the First Deed of Trust in their 2010
4 Bankruptcy. (See RJN, Ex. J, Pg. 18.) Accordingly, Plaintiffs’ claims for damages
5 based on alleged rescission or cancellation should be dismissed.
6 3. Plaintiffs’ Third Cause of Action for Quiet Title Fails as to
7 Defendants
8 Plaintiffs’ FAC seeks to quiet title, however Plaintiffs fail to mention that
9 foreclosure is complete and the current owner of the Subject Property was dismissed
10 from this case on September 12, 2016. (See Dkt., 30.) Additionally, Plaintiffs make
11 no allegation that they are ready, willing or able to tender the full amount of the debt
12 owed as required by California law. Plaintiffs’ allegations cannot support the
13 request to quiet title.
14 To prevail on a cause of action for quiet title, Plaintiffs must prove that:
15 (1) "plaintiff is the owner and in possession of certain land," (2) "that defendant
16 claims an interest therein adverse to plaintiff," and (3) "that such claim is without
17 right." (Gray v. Walker (1910) 157 Cal. 381, 384; Cal. Code Civ. Proc. § 761.020.)
18 Plaintiffs are not the owners of the Subject Property. A basic requirement of
19 an action to quiet title is an allegation that plaintiffs "are the rightful owners of the
20 property, i.e., that they have satisfied their obligations under the Deed of Trust."
21 (Kelley v. Mortgage Elec. Reg. Sys., Inc. (N.D. Cal. 2009) 642 F.Supp.2d 1048,
22 1057.) As the court in Distor v. U.S. Bank N.A. (N.D. Cal. 2009) Case No. C. 09-
23 02086 SI, 2009 WL 3429700, at *6 discusses, “because the property has already
24 been sold, quiet title is not longer an appropriate action to seek to undo foreclosure.”
25 (See also Lopez v. Chase Home Fin. LLC (E.D. Cal. 2009) Case No. 09-0449, 2009
26 WL 981676, at *7 [“If the foreclosure is successful, title will change, and the quiet
27 title claim is an improper means to challenge foreclosure.”].) Here, the Subject
28 Property was sold at trustee’s sale on March 4, 2015. (RJN, Ex. G.) Subsequently,
1 the Subject Property was transferred from BONY to GB Inland Properties, LLC on
2 or about May 20, 2016. (RJN, Ex. H.) Thus, Plaintiffs may no longer assert a claim
3 for quiet title.
4 Further, Plaintiffs’ FAC fails to allege that they have satisfied their
5 obligations under the First Deed of Trust. In order to plead quiet title, Plaintiffs must
6 allege that they are “the rightful owners of the property, i.e.[,] that they have
7 satisfied their obligations under the Deed of Trust.” (Kelley v. Mortg. Elec.
8 Registration Sys., Inc., (N.D.Cal.2009) 642 F.Supp.2d 1048, 1057.) Plaintiffs have
9 not and cannot plead that they have satisfied their obligations under the First Deed
10 of Trust. (See FAC, ¶¶ 37-41.) Plaintiffs have failed to plead the required elements,
11 including, without limitation, Plaintiffs’ title to the Subject Property and their
12 satisfaction of the underlying obligation. Thus, the third cause of action cannot
13 stand.
14 4. Plaintiffs’ Fourth Cause of Action for Negligence Fails as to
15 Defendants
16 Plaintiffs’ Fourth Cause of Action fails because Plaintiffs are unable to
17 successfully plead the required elements of negligence.
18 To begin, “[t]he elements of a cause of action for negligence are (1) a legal
19 duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal]
20 cause between the breach and (4) the plaintiff’s injury.” (Mendoza v. City of Los
21 Angeles (1998) 66 Cal.App.4th 1333, 1339 [citation omitted.]) “The existence of a
22 duty of care owed by a defendant to a plaintiff is a prerequisite to establishing a
23 claim for negligence.” (Nymark v. Heart Fed. Savings & Loan Assn. (1992) 231
24 Cal.App.3d 1089, 1095.) “The existence of a legal duty to use reasonable care in a
25 particular factual situations is a question of law for the court to decide.” (Vasquez v.
26 Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 [citation omitted].)
27 In California, “as a general rule, a financial institution owes no duty of care to a
28 borrower when the institution’s involvement in the loan transaction does not exceed
1 the scope of its conventional role as a mere lender of money.” (Nymark, supra, 231
2 Cal.App.3d at 1096.)
3 Plaintiffs contend that Defendants “owed a duty to the Plaintiff duty to
4 exercise reasonable care and skill to maintain proper and accurate loan records and
5 to discharge and fulfill the other incidents attendant to the maintenance, accounting
6 and servicing of loan records and following the proper foreclosure procedures as
7 required by California and federal law.” (FAC, ¶ 44.) Plaintiffs’ allegations not
8 only fail to establish any duty which Defendants have to Plaintiffs, but the
9 allegations are also insufficient to establish that any specific acts by Defendants
10 directly resulted in damages to Plaintiffs. It is clear in this case that Plaintiffs’ own
11 default on the First Deed of Trust led to the foreclosure of the Subject Property and
12 Plaintiffs’ subsequent eviction by former Defendant GD Inland Properties, LLC.
13 5. Plaintiffs’ Fifth Cause of Action for Declaratory Relief Fails
14 as to Defendants Because the Relief Requested is Duplicative
15 of the Other Causes of Action Pled
16 Plaintiffs are recasting their First through Fourth Causes of Action for redress
17 of past wrongs into a declaratory relief action. A declaratory relief action may not
18 be used in this manner. As the California Supreme Court held in Babb v. Superior
19 Court (1971) 3 Cal.3d 841, 848:
20 The purpose of a judicial declaration of rights in advance of an actual
tortious incident is to enable the parties to shape their conduct so as to
21 avoid a breach. Declaratory procedure operates prospectively, and not
merely for the redress of past wrongs. It serves to set controversies at
22 rest before they lead to repudiation of obligations, invasion of rights or
commission of wrongs; in short, the remedy is to be used in the
23 interests of preventative justice, to declare rights rather than execute
them.
24
25 The California Court of Appeal held in Baldwin v. Marina City Properties,
26 Inc. (1978) 79 Cal. App. 3d 393, 407:
27 If there is a controversy which calls for a declaration of rights, it is no
objection that past wrongs are also to be redressed; but there is no basis
28 for declaratory relief where only past wrongs are involved. Hence,
1 where there is an accrued cause of action for actual breach of contract

or other wrongful act, declaratory relief may be denied.
2
3 The purpose of declaratory relief is “to afford a new form of relief where
4 needed and not to furnish a litigant with a second cause of action for determination
5 of identical issues.” (California Ins. Guarantee Ass’n v. Superior Court (1991) 231
6 Cal.App.3d 1617, 1624.) In addition, where an accrued cause of action for
7 monetary damages will provide the plaintiff with complete relief, a cause of action
8 for declaratory relief is not proper. (Cardellini v. Casey (1986) 181 Cal. App. 3d
9 389, 396–97.)
10 Plaintiffs’ allegations are consistent throughout the Complaint—Plaintiffs
11 purport to challenge the First Deed of Trust based on alleged irregularities and
12 statutory violations, present at or near the time the instruments were executed and
13 during the foreclosure process, for the purposes of unwinding foreclosure and
14 eviction. Because the declaratory relief cause of action is duplicative of the relief
15 sought in the remaining causes of action and seeks to redress past wrongs, the Court
16 should grant the Motion as to the fifth cause of action without leave to amend.
17 6. Plaintiffs’ Sixth Cause of Action for Accounting Fails as to
18 Defendants
19 In order to state a claim for Accounting, facts must be pled to show: (1) a
20 fiduciary duty exists, or (2) if no fiduciary duty exists, that some balance is due and
21 owing from Defendants to Plaintiff. (Teselle v. McLoughlin (2009) 173 Cal.App.4th
22 156, 173.) Plaintiffs do not owe any fiduciary duty to Plaintiff. (Nymark v. Heard
23 Fed. Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1093 n. 1 (“The relationship
24 between a lending institution and its borrower is not fiduciary in nature”); Price v.
25 Wells Fargo Bank (1989) 213 Cal.App.3d 465, 475 (no fiduciary relationship between
26 a bank and its loan customers).) Additionally, it is clear that, after years of default
27 and subsequent foreclosure, a balance is not owed from Defendants to Plaintiffs.
28 Further, if any monies could possibly be due and owing from Defendants to
1 Plaintiffs, Plaintiffs were required to disclose those assets in their multiple

2 bankruptcy filings in 2010, 2015 and 2016. (RJN, Ex. J, M & Q.) As discussed
3 below, Plaintiffs cannot now take an inconsistent position and assert that they are
4 owed money by Defendants.
5 Additionally, a right to an accounting is derivative; it must be based on other
6 claims. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593-94.) Here,
7 because all of Plaintiffs’ other claims fail, so too does the Cause of Action for
8 Accounting. Thus, Plaintiffs accounting claims fail as a matter of law.
9 D. Plaintiffs Entire FAC is Barred by the Doctrine of Judicial
10 Estoppel
11 Judicial estoppel is an equitable doctrine. (MW Erectors, Inc. v. Niederhauser
12 Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422; International
13 Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) It may be
14 invoked to preclude a litigant from obtaining an unfair advantage by taking a
15 position in a judicial or administrative proceeding that is inconsistent with a position
16 successfully asserted by the litigant in an earlier proceeding. (Jackson v. County of
17 Los Angeles (1997) 60 Cal.App.4th 171, 183.) Because it is an equitable doctrine,
18 the decision whether to apply judicial estoppel in a given case rests in the sound
19 discretion of the trial court. (People ex rel. Sneddon v. Torch Energy Services, Inc.
20 (2002) 102 Cal.App.4th 181, 189.)
21 Judicial estoppel applies when: (1) the same party has taken two positions;
22 (2) the positions were taken in judicial or quasi-judicial administrative proceedings;
23 (3) the party was successful in asserting the first position (i.e., the tribunal adopted
24 the position or accepted it as true); (4) the two positions are totally inconsistent; and
25 (5) the first position was not taken as a result of ignorance, fraud, or mistake.
26 (Jackson, 60 Cal.App.4th at 183; MW Erectors, Inc., 36 Cal.4th at 422-23.) The
27 doctrine serves to protect the integrity of the judicial process by preventing a litigant
28 from intentionally adopting inconsistent positions to obtain an unfair advantage in
1 successive proceedings. (Hanna v. Los Angeles County Sheriff’s Dept. (2002) 102
2 Cal.App.4th 887, 896.) Importantly, judicial estoppel does not require reliance or
3 prejudice before a party may invoke it. (Billmeyer v. Plaza Bank of Commerce
4 (1995) 42 Cal.App.4th 1086, 1092.)
5 In California, judicial estoppel has been invoked to prevent litigants from
6 claiming in a lawsuit an interest in property that the litigant failed to disclose or
7 intentionally concealed during a prior bankruptcy. (Thomas v. Gordon (2000) 85
8 Cal.App.4th 113; International Engine Parts, Inc., 64 Cal.App.4th 345; Billmeyer,
9 42 Cal.App.4th 1086.) Because Plaintiffs are doing precisely that – asserting in this
10 case an interest in the claims against Defendants that Plaintiffs failed to disclose in
11 prior bankruptcy proceedings, judicial estoppel should be invoked here.
12 1. Plaintiffs Have Taken Multiple Positions
13 As noted above, the Bankruptcy Code places an affirmative duty on the
14 debtor to schedule all assets in the bankruptcy petition, including causes of action.
15 (Cusano, 264 F.3d at 945-47.) Plaintiffs clearly knew of the First Deed of Trust and
16 any claims arising from it when they filed for Bankruptcy in 2010 and thereafter in
17 2015 and 2016. Plaintiffs raised no dispute as to the Loan in any of the bankruptcy
18 filings and did not challenge foreclosure in the 2015 and 2016 bankruptcy filings.
19 (See Ex. J, L, M, N, P & Q.) The claims which Plaintiffs now assert against
20 Defendants alleging previous rescission of the Loan would have existed at the time
21 of the Chapter 7 Bankruptcy filed on August 19, 2010. (See RJN, Ex. J; FAC, ¶ 15.)
22 Further disputes regarding assignment of the First Deed of Trust and foreclosure
23 would have existed at the time Chapter 13 Bankruptcies were filed on April 28,
24 2015 and May 20, 2016. (See RJN, Ex. M & Q.) Clearly, Plaintiffs did not consider
25 themselves to have an interest in the claims for purposes of bankruptcy or consider
26 their claims an "asset," yet Plaintiffs – by continuing to litigate this action against
27 Defendants – ostensibly contend otherwise now.
28 ///
1 2. Plaintiffs’ positions were taken in judicial proceedings

2 Plaintiffs’ various positions with respect to the claims against Defendants
3 were taken in judicial proceedings: first, Plaintiffs ‘August 19, 2010 Chapter 7
4 Bankruptcy; second, Plaintiffs’ April 28, 2015 Chapter 13 Bankruptcy; third,
5 Plaintiffs’ May 20, 2016 Chapter 13 Bankruptcy; and fourth, Plaintiffs’ subsequent
6 attempt to prosecute the instant action.
7 3. Plaintiffs were successful in asserting the first position
8 Because of the singular nature of bankruptcy law, Plaintiffs obtained a legal
9 benefit – an automatic stay and a subsequent discharge of debts – from their
10 Chapter 7 Bankruptcy filing. (See RJN, Ex. K.) Further, Plaintiffs obtained the
11 legal benefit of the automatic stay in the 2015 and 2016 bankruptcies, most likely to
12 delay eviction. These were benefits obtained, in part, because Plaintiffs failed to
13 disclose their claims against Defendants and represented that they were not
14 contesting the First Deed of Trust held by BONY.
15 4. Plaintiffs’ positions are totally inconsistent
16 Plaintiff failed to schedule any claims whatsoever against Defendants in their
17 multiple Bankruptcy filings and failed to ever update their assets schedule to include
18 this lawsuit or the previous superior court action (see RJN, Ex. S) against
19 Defendants– effectively taking the position that Plaintiffs have no claims against
20 Defendants. Thus, for Plaintiffs to now claim in the instant case any interest in any
21 claim against Defendants would be completely and totally inconsistent.
22 5. Plaintiffs’ first position was not taken as a result of
23 ignorance, fraud, or mistake
24 Importantly, there is no indication in this litigation that Plaintiffs’ failure to
25 schedule any claims whatsoever against Defendants in their multiple bankruptcy
26 filings was the product of Plaintiffs’ ignorance, third-party fraud, or Plaintiffs’
27 mistake. To the contrary, the facts point in the opposite direction, given that
28 Plaintiff filed the 2010 Chapter 7 Bankruptcy with the assistance of counsel. (RJN,
1 Ex. J.) Further, the 2015 and 2016 Chapter 13 Bankruptcies filed Pro Se indicate
2 that Plaintiffs’ were fully aware of the contents of the schedules, the purpose for the
3 bankruptcy filings and consciously omitted the claims that they now raise in the case
4 at hand. (See RJN, Ex. M & Q.)
5 Moreover, Plaintiffs may not avoid the repercussions of their bankruptcy
6 filings by claiming they did not read the bankruptcy documents prior to signing
7 them. (Thomas, 85 Cal.App.4th at 121 [“We see no reason to encourage willful
8 blindness to the content of documents signed under penalty of perjury by allowing a
9 party to use the excuse of failure to read as a basis for rejecting application of the
10 doctrine of judicial estoppel.”].) Simply stated, judicial estoppel should be applied
11 here to prevent Plaintiffs from making a mockery of the judicial system. Defendants
12 Motion to Dismiss should be granted without leave to amend.
13 E. The Court Should Dismiss the Entire FAC With Prejudice and
14 Without Leave to Amend
15 The Court should dismiss this action with prejudice and without leave to
16 amend. Courts have discretion to deny leave to amend if it determines that the
17 pleading could not possibly be cured by the allegation of other facts. (Doe v. United
18 States (9th Cir. 1995) 58 F.3d 494, 497.) Leave to amend may also be denied for
19 repeated failure to cure deficiencies by previous amendment. (Abagninin v. AMVAC
20 Chem. Corp. (9th Cir. 2008)545 F.3d 733, 742.)
21 Accordingly, it appears that Plaintiffs’ claims alleged in the FAC are
22 hopelessly incurable and should be dismissed with prejudice and without leave to
23 amend.
24 ///
25 ///
26 ///
27 ///
28 ///
1 IV. CONCLUSION
2 For the reasons set forth herein, it is respectfully requested that the Court
3 grant this Motion and dismiss Plaintiffs’ FAC in its entirety, with prejudice, as to
4 Defendants.
5
6 DATED: December 15, 2016 Respectfully submitted,
7 GREEN & HALL, LLP
8
9 By: /s/ Rachel C. Zwernemann
Howard D. Hall
10 Rachel C. Zwernemann
Attorneys for Defendants
11 The Bank of New York Mellon as Trustee for
Structured Asset Mortgage Investments II Inc.
12 Mortgage Pass-Through Certificate Series 2005-
AR8 and Nationstar Mortgage LLC
13 (erroneously sued as Nation star Mortgage)
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 CERTIFICATE OF SERVICE
2 I am employed in the County of Orange, State of California. I am over the
age of 18 and not a party to the within action. My business address is 1851 East
3 First Street, 10th Floor, Santa Ana, CA 92705-4052.
4 On December 15, 2016, I served the within document(s) described as:
5 NOTICE OF MOTION AND MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED COMPLAINT BY
6 DEFENDANTS THE BANK OF NEW YORK MELLON AS
TRUSTEE FOR STRUCTURED ASSET MORTGAGE
7 INVESTMENTS II INC. MORTGAGE PASS-THROUGH
CERTIFICATE SERIES 2005-AR8 AND NATIONSTAR
8 MORTGAGE LLC; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
9
on each interested party in this action as stated below:
10
SEE ATTACHED SERVICE LIST
11
BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed
12 the document(s) with the Clerk of the Court by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the
13 CM/ECF system. Participants in the case who are not registered CM/ECF users will
be served by mail or by other means permitted by the court rules.
14
I declare under penalty of perjury under the laws of the United States of
15 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
16
Executed on December 15, 2016, at Santa Ana, California.
17
18
/s/ Rebecca Vogel
19 Rebecca Vogel
20
21
22
23
24
25
26
27
28
1 SERVICE LIST
Diaz, et al. v. GB Inland Properties, LLC, et al.
2
3 Christopher G. Weston, Esq. Helen G. Long, Esq.
Western Law Connection, Corp. H.G. Long & Associates
4 4311 Wilshire Blvd., Suite 615 474 West Orange Show Road
Los Angeles, CA 90010 San Bernardino, CA 92408
5 (323) 936-0815; Fax: (936) 936-0700 (909) 332-6200; Fax: (909) 889-3900
wlconnection@aol.com intake@fastevict.com
6 Attorneys for Plaintiffs HGLongAtty@fastevict.com
Attorneys for GB Inland Properties,
7 LLC
8 Melissa Robbins Coutts, Esq.
Leticia "Tia" Butler, Esq.
9 McCarthy & Holthus, LLP
1770 Fourth Avenue
10 San Diego, CA 92101
(619) 685-4800; Fax: (619) 685-4811
11 lbutler@mccarthyholthus.com
Attorneys for Quality Loan Service
12 Corporation
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case No. 5:16-Cv-01518-Jgb (DTBX) Notice of Motion and Motion To Dismiss Plaintiffs' First Amended Complaint

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Case No. 5:16-Cv-01518-Jgb (DTBX) Notice of Motion and Motion To Dismiss Plaintiffs' First Amended Complaint

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Case 5:16-cv-01518-JGB-DTB Document 50 Filed 12/15/16 Page 1 of 33 Page ID #:377

1 GREEN & HALL, LLP

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

1 5. Dismissing Plaintiffs’ Fifth Cause of Action for “Declaratory Relief”

1 Duplicative of the Other Causes of Action Pled ........................ 16

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 II. SUMMARY OF FACTS AND PROCEDURAL POSTURE

1 OVER THE WESTERLY 20 FEET OF THE EASTERLY 106 FEET

1 C. Plaintiffs’ State Court Action

1 (a) Plaintiffs’ First Cause of Action is Fatally Uncertain

1 division of land’ and ... he ‘will quite often combine or renumber

1 (c) Plaintiffs’ Have no Standing to Challenge Assignment

1 where there is an accrued cause of action for actual breach of contract

1 Plaintiffs, Plaintiffs were required to disclose those assets in their multiple

1 2. Plaintiffs’ positions were taken in judicial proceedings

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