Document 55

Case 5:16-cv-01518-JGB-DTB Document 55 Filed 01/09/17 Page 1 of 14 Page ID #:671
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.
REPLY IN SUPPORT OF MOTION
16 GB Inland Properties, LLC and/or Its TO DISMISS PLAINTIFFS’ FIRST
Successors and/or Assignees In Interest; AMENDED COMPLAINT BY
17 The Bank of New York Mellon as DEFENDANTS THE BANK OF
Trustee for Structured Asset Mortgage NEW YORK MELLON AS
18 Investments II, Inc., Mortgage Pass TRUSTEE FOR STRUCTURED
thorough Certificates Series2005-AR8; ASSET MORTGAGE
19 Nation star Mortgage; Continental HL- INVESTMENTS II INC.
011 Trust; Rafael Perez; Quality Loan MORTGAGE PASS-THROUGH
20 Servicing, Platinum Capital Group and CERTIFICATE SERIES 2005-AR8
Does 1 through 100 Inclusive, AND NATIONSTAR MORTGAGE
21 LLC
Defendants.
22 DATE: January 23, 2017
TIME: 9:00 a.m.
23 CTRM: 1
JUDGE: Hon. Jesus G. Bernal
24
ACTION FILED: July 12, 2016
25 TRIAL DATE: October 3, 2017
26 / / /
27 / / /
28 / / /
Case No. 5:16-cv-01518 JGB(DTBx)
REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT
P:\DOCS\Nationstar.Diaz(Socorro)\Pleadings\Reply.MTD.docx
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 Plaintiffs SOCORRO DIAZ and FRANCISCO DIAZ (“Plaintiffs”) failed to
4 make the required payments on their mortgage loan and were subsequently
5 foreclosed upon in 2015. Plaintiffs originally filed the lawsuit at hand in a last effort
6 to delay an unlawful detainer judgment and eviction from the property located at
7 3891 Foxtail Lane, Riverside, CA 92501 (“Subject Property”). Now, in an attempt
8 to obtain relief for foreclosure and eviction caused by their own default, Plaintiffs
9 continue to pursue this lawsuit and have filed a meritless First Amended Complaint
10 (“FAC”) which is addressed in the Motion to Dismiss at hand by Defendants THE
11 BANK OF NEW YORK MELLON AS TRUSTEE FOR STRUCTURED ASSET
12 MORTGAGE INVESTMENTS II INC. MORTGAGE PASS-THROUGH
13 CERTIFICATE SERIES 2005-AR8 (“BONY”) and NATIONSTAR MORTGAGE
14 LLC (erroneously sued as Nation star Mortgage) (“Nationstar”) (collectively
15 “Defendants”).
16 Each of the causes of action in the FAC are defective and are barred by
17 defenses apparent on the face of the FAC and through reference to judicially
18 noticeable documents. Plaintiffs’ Opposition to the Defendants’ Motion to Dismiss
19 fails to adequately address the legal barriers to Plaintiffs’ lawsuit. Further, Plaintiffs
20 fail to state facts sufficient to support each cause of action.
21 Importantly and as discussed herein, when Plaintiffs’ executed the subject
22 Deed of Trust, they were well aware of the property secured by the Deed of Trust
23 and which was subject to foreclosure in the event the mortgage payments were not
24 made pursuant to the agreement. The fatal errors in the FAC cannot be cured by an
25 additional amendment because, as demonstrated by Plaintiffs’ scant Opposition,
26 new facts simply do not exist to support Plaintiffs’ claims. Therefore, Defendants
27 request that the Motion to Dismiss be granted as to all causes of action without leave
28 to amend.
2 Case No. 5:16-cv-01518 JGB(DTBx)
1 II. PLAINTIFFS’ FAILURE TO TENDER BARS THEIR FIRST

2 AMENDED COMPLAINT
3 Plaintiffs argue they are not required to tender before challenging the
4 foreclosure sale of the Subject Property based on certain exceptions to the tender
5 rule. (Opposition 8:9-28.) Plaintiffs’ argument seems to be based solely on citation
6 to an unknown practice guide and the Opposition lists no identifiable legal authority
7 to support their position. (Opposition 8:19-21.) At the time of foreclosure,
8 Plaintiffs were over $100,000 past due on their mortgage loan. (RJN, Ex. D.)
9 Courts have consistently held that in a post-foreclosure context, the tender rule
10 strictly applies. (See Karlsen v. American Savings and Loan Ass’n (1971) 15
11 Cal.App.3d 112, 117; FPCI RE-HAB 01 v. E & G Invs., Ltd. (1989) 207 Cal.App.3d
12 1018, 1022.) Plaintiffs’ FAC and Opposition fail to demonstrate that the current
13 lawsuit allows them to take advantage of any exception to California’s tender rule.
14 Plaintiffs’ conclusory allegations that the Deed of Trust was not properly assigned
15 are insufficient to allege that the Deed of Trust is void or voidable. (See FAC, ¶ 29.)
16 (Motion to Dismiss, Pg. 11-12.) Further, Plaintiffs have not alleged any specific
17 facts showing how the amount of the debt is incorrect or detailing what monies are
18 owed to Plaintiffs by Defendants. Finally, vague allegations of fraud in 2005 by the
19 original lender Platinum Capital Group do not allow Plaintiffs to avoid the tender
20 rule. Plaintiffs admit in the FAC that they were in default under the loan. (FAC, ¶¶
21 23-24.) Because Plaintiffs have not demonstrated they are entitled to an exception
22 under the tender rule, the entire FAC fails.
23 III. PLAINTIFFS’ CLAIMS ARE TIME-BARRED
24 Plaintiffs begin their Opposition by stating “on April 23, 2005 employees of
25 the original beneficiary…pressured the Plaintiffs to sign a loan without properly
26 reviewing the loan. Subsequently, the Plaintiffs timely noticed a cancellation of the
27 loan.” (Opposition 3:11-17.) Plaintiffs go on to state, “agents of Platinum Capital
28 Group fraudulently concealed the true fact that they would not honor the
1 cancellation by stating that the cancellation would take six months to take effect.”
2 (Opposition 3:18-21.) Plaintiffs also allege in the FAC that Platinum Capital Group
3 “never intended to honor the cancellation…paid of the First Horizon Loan
4 Corporation deed but never paid to the Plaintiffs balance of the two hundred eighty
5 eight thousand dollars.” (FAC, ¶ 17.) Plaintiffs filed the action at hand on July 12,
6 2016, more than 10 years after the alleged fraudulent conduct by Platinum Capital
7 Group. As discussed in Defendants’ Motion to Dismiss, 15 U.S.C. § 1635 bars any
8 claims regarding rescission brought more than three years after consummation of the
9 transaction. Further, Plaintiffs’ vague claims regarding the conduct of Platinum
10 Capital Group in 2005 and the origination of the loan are be subject to limitations
11 periods of between two to four years. (See Cal. Code of Civ. Proc. §§ 337 and
12 335.1.) Plaintiffs’ Opposition fails to address and thus concedes that the claims are
13 barred by the applicable statutes of limitation. Plaintiffs’ causes of action in the
14 FAC based on the 2005 fraud and origination claims fail and cannot by cured by an
15 additional amendment to the FAC. Therefore, the FAC should be dismissed with
16 prejudice.
17 IV. PLAINTIFFS LACK STANDING TO ASSERT CLAIMS OF
18 WRONGFUL FORECLOSURE BASED ON ASSIGNMENT OF THE
19 DEED OF TRUST
20 Plaintiffs’ Opposition cites Yvanova v. New Century Mortgage Corp. (2016)
21 62 Cal.4th.919, 923 in an attempt to support their position that “defendants are not
22 ‘holders in due course’ of the [sic] and cannot foreclose on a void deed.”
23 (Opposition 10:2-4.) Plaintiffs have asserted no sufficient facts to support the
24 allegation that Defendant BONY had no authority to foreclose. Based on Saterbak
25 v. J P Morgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 815 (in the pre-
26 foreclosure context) and Yhudai v. Impac Funding Corporation (2016) 1
27 Cal.App.5th 1252, 1257 (in the post-foreclosure context), Plaintiffs have not
28 demonstrated that assignment of the Deed of Trust renders the instrument void or
1 voidable. (See also Mendoza v. JP Morgan Chase Bank (December 13, 2016) 2016
2 WL 721799 [certified for publication][holding that borrowers lack standing to
3 challenge alleged irregularities in the securitization of their loans, even in a post-
4 foreclosure context.].) Thus, Plaintiffs have no standing to bring claims challenging
5 Defendants’ authority to foreclose.
6 Even if Plaintiffs had standing to allege such assignment/securitization
7 claims, Plaintiffs cannot allege they suffered any damage from the transfer of their
8 loan which they consented to by execution of the Deed of Trust. (See RJN, Ex. A,
9 Pg. 10, ¶ 20.) Assignment of the loan does not change Plaintiffs’ obligations under
10 the Note or Deed of Trust, thus Plaintiffs have suffered no actual damage. Whereas,
11 Plaintiffs’ assignment claims appear to be the basis for the wrongful foreclosure
12 claim, Plaintiffs’ FAC is devoid of any actionable wrong and the Motion to Dismiss
13 should be granted with prejudice.
14 V. PLAINTIFFS’ CLAIMS BASED ON CHANGES IN ASSESSOR’S
15 PARCEL NUMBERS ARE ERRONEOUS WHERE THE LEGAL
16 DESCRIPTION OF THE PROPERTY IN THE DEED OF TRUST
17 PRECISELY MATCHES THE LEGAL DESCRIPTION OF THE
18 PROPERTY REFERENCED IN THE TRUSTEE’S DEED UPON SALE
19 Plaintiffs’ Opposition omits any reference to the actual Legal Description of
20 the Subject Property which is exhaustive and stands as the definitive description of
21 the real property secured by the Deed of Trust executed by Plaintiffs. (See RJN, Ex.
22 A.) Plaintiffs’ focus on Assessor’s Parcel Numbers (“APNs”) is misplaced as APNs
23 are kept for tax assessment purposes and subject to change. Plaintiffs argument for
24 wrongful foreclosure and cancellation of instruments based on changes in
25 understandably malleable APNs is a desperate attempt to grasp at straws where
26 Plaintiffs simply failed to make their mortgage payments and were subsequently
27 foreclosed upon and evicted.
28 / / /
1 The First Deed of Trust identifies the Subject Property with the Legal
2 Description –
3 PARCEL 1:
4 THE SOUTH 65 FEET OF THE NORTHERLY 660 FEET OF THE
EAST 112 FEET OF THE WEST 224 FEET OF LOT 32
5 RESUBDIVISION OF GLEN AVON HEIGHTS AS PER MAP
RECORDED IN BOOK 10 PAGE 100 OF MAPS IN THE OFFICE
6 OF THE COUNTY RECORDED OF RIVERSIDE COUNTY.
7 SAID NORTHERLY 660 FEET BEING MEASURED FROM THE
CENTER LINE OF BEN NEVIS BOULEVARD AND ON LINE
8 PARALLEL WITH THE WEST LINE OF SAID LOT, SAID EAST
112 FEET OF THE WEST 224 FEET BEING MEASURED ALONG
9 THE CENTER LINE OF BEN NEVIS BOULEVARD.
10 PARCEL 2:
11 THE SOUTH 65 FEET OF THE NORTH 595 FEET OF THE EAST
112 FEET OF THE WEST 224 FEET OF LOT 32 OF
12 RESUBDIVISION OF GLEN AVON HEIGHTS AS PER MAP
RECORDED IN BOOK 10 PAGE 100 OF MAPS IN THE OFFICE
13 OF THE COUNTY RECORDED OF RIVERSIDE COUNTY.
14 PARCEL 3:
15 A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS
OVER THE WESTERLY 20 FEET OF THE EASTERLY 106 FEET
16 OF THE WESTERLY 330 FEET OF LOT 32 OF RESUBDIVISION
OF GLEN AVON HEIGHTS AS PER MAP RECORDED IN BOOK
17 10 PAGE 100 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDED OF RIVERSIDE COUNTY.
18
PARCEL 4:
19
THE WEST 112 FEET OF LOT 32 OF RESUBDIVISION OF GLEN
20 AVON HEIGHTS, AS SHOWN BY MAP ON FILE IN BOOK 10
PAGE 100 OF MAPS, RECORDS OF RIVERSIDE COUNTY,
21 CALIFRONIA:
22 EXCEPTING THEREFROM THE NORTH 591 FEET THEREOF;
SAID NORTH 591 FEET BEING MEASURED FROM THE LINE
23 OF BEN NEVIS BOULEVARD ALONG THE WEST LINE OF SAID
LOT; SAID WEST 112 FEET BEING MEASURED ALONG THE
24 CENTER LINE OF BEN NEVIS BOULEVARD AS SHOWN ON
SAID MAP.
25
PARCEL 5:
26
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGREES
27 OVER THE WEST 20 FEET OF LOT 32 OF RESUBDIVISION OF
GLEN AVON HEIGHTS AS SHOWN BY MAP ON FILE IN BOOK
28 10 PAGE 100 OF MAPS, RECORDS OF RIVERSIDE COUNTY,
1 CALIFORNIA;
2 EXCEPTING THEREFROM THE PORTION THEREOF INCLUDED
IN PARCEL 4 ABOVE;
3
ALSO EXCEPTING THEREFROM A NON-EXCLUSIVE
4 EASEMENT FOR INGRESS AND EGRESS OVER THE SOUTH 30
FEET OF NORTH 330 FEET OF WEST 224 FEET OF SAID LOT 32
5 AND OVER THE WEST 20 FEET OF THE EAST 106 FEET OF THE
WEST 330 FEET OF SAID LOT;
6
(RJN, Ex. A, pg. 20 of 20.)
7
The Trustee’s Deed Upon Sale listing BONY as beneficiary and the
8
subsequent Grant Deed to GB Inland Properties, LLC also identifies the
9
Subject Property with the exact same legal description listed in the Deed of
10
Trust. (See RJN, Ex. G & H.) This judicially noticeable information, not
11
objected to by Plaintiffs, demonstrates that the interest in the property granted
12
by Plaintiffs to the beneficiary of the Deed of Trust was exactly the same
13
interest that was foreclosed upon by Defendant BONY as the foreclosing
14
beneficiary.
15
The consistency in the Legal Description of the Subject Property in the
16
Deed of Trust and Trustee’s Deed Upon Sale demonstrates that Defendants
17
foreclosed upon no interest greater or lesser than that which was carefully
18
identified by the Legal Description of the Subject Property set forth in the
19
Deed of Trust. Plaintiffs’ claims in the FAC disputing the APNs assigned to
20
the Subject Property are baseless.
21
An assessor’s map also may describe parcels by reference to
22 instruments that define boundaries of land and that would be
appropriate for use in a legal description. The actual assessor’s map,
23 however, is not required to be recorded, and the assessor may number
or letter parcels in a manner approved by the Board of Supervisors, and
24 renumber the parcels from time to time, with the only requirement
being that the copy on file in the assessor’s office being up to date and
25 showing the current parcel number for the current fiscal year and the
preceding fiscal year…By statute, a deed or other instrument of
26 conveyance may not describe land by reference to an assessor’s map
that has no been recoded in the office of the county recorded for the
27 county in which the land is located.
28 (3 Miller and Starr, Cal. Real Est. (4th ed. 2016), § 8:64.)
1 Further, according to the California Revenue and Taxation Code, “[l]and shall
2 not be described in any deed or conveyance by a reference to any such map
3 unless such map has been filed for record in the office of the county recorded
4 of the county in which such land was located.” (Cal. Rev. & T. Code § 327.)
5 Based on these California authorities, it is clear that Plaintiffs’ reliance on a
6 change in APNs as the basis of their wrongful foreclosure claim is misplaced.
7 In this case, the Legal Description of the Subject Property set forth in the
8 Deed of Trust precisely matches the Legal Description of the Subject
9 Property foreclosed upon. Because APNs are subject to change and such
10 changes are not required to be recorded in the Official Records of the County,
11 the Legal Description is the definitive authority to accurately describe the
12 Subject Property.
13 Further, Plaintiffs FAC is devoid of any facts showing that they
14 suffered any actual prejudice as a result of changing APNs which are
15 inconsequential where the Legal Description is the governing description of
16 property in a deed of trust per California Statute. Clearly, the land that was
17 foreclosed upon was the exact same land Plaintiffs’ know was subject to this
18 loan and potential foreclosure. Thus, Defendants’ Motion to Dismiss should
19 be granted with prejudice as to all of Plaintiffs’ claims based on changes in
20 APNs.
21 VI. PLAINTIFFS’ CLAIMS FOR QUIET TITLE AND
22 CANCELLATION OF INSTRUMENTS FAIL
23 Defendants’ Motion to Dismiss offered four pages of argument
24 addressing why Plaintiffs’ claims for Quiet Title and Cancellation of
25 Instruments fail. (Motion to Dismiss, Pg. 12-15.) Defendants argue the
26 causes of action are uncertain, are barred by the applicable statutes of
27 limitation and fail because Plaintiffs do not allege tender and have not
28 demonstrated that they or the remaining Defendants are the rightful owners of
1 the Subject Property. (Id.) In response to these arguments, Plaintiffs’

2 Opposition offers a single sentence: “Plaintiffs contend that the facts stated
3 above also support a cause of action for quiet title and cancellation of deed
4 based on these facts.” (Opposition 11:4-6.) Plaintiffs’ Opposition fails to
5 address and therefore concedes that the Quiet Title and Cancellation of
6 Instrument causes of action do not meet the minimum pleading requirements
7 and are substantively barred by the defense apparent on the face of the FAC
8 and through reference to judicially noticeable documents uncontested by
9 Plaintiffs.
10 VII. PLAINTIFFS’ ARE UNABLE TO STATE A CLAIM FOR
11 NEGLIGENCE
12 In arguing that Defendants, as financial institutions, may be held liable
13 for negligence, Plaintiffs’ Opposition cites Jolley v. Chase Home Finance,
14 LLC (2013) 213 Cal.App.4th 872. Plaintiffs’ reliance is misplaced because in
15 Jolley the plaintiff’s allegations of negligence arose in the context of an
16 involved loan modification negotiation between the financial institution and
17 the borrower. The case at hand presents very different facts. Here,
18 foreclosure was undertaken by Defendants after Plaintiffs admittedly
19 defaulted on their loan. (FAC, ¶¶ 23-24.) Not only have Plaintiffs failed to
20 establish that Defendants acted outside of the ordinary role as financial
21 institutions, but the cause of action for negligence presented by Plaintiffs is
22 fatally uncertain to establish breach by Defendants and an injury caused by
23 Defendants’ actions. Rather, Plaintiffs’ own actions in failing to pay their
24 mortgage is the direct cause of foreclosure of the Subject Property. Plaintiffs
25 have failed to allege any breach by Defendants resulted in damages to
26 Plaintiffs.
27 Additionally, with regard to the allegations directed against Platinum
28 Capital Group, Plaintiffs have failed to allege that Defendants are responsible
1 as successors for any past action by Platinum Capital Group. In California, a

2 successor is not liable for its predecessor’s actions unless “(1) the successor
3 expressly or impliedly agrees to assume the subject liabilities […], (2) the
4 transaction amounts to a consolidation or merger of the successor and the
5 predecessor, (3) the successor is a mere continuation of the predecessor, or (4)
6 the transfer of assets to the successor is for the fraudulent purpose of escaping
7 liability for the predecessor’s debts.” (CenterPoint Energy, Inc. v. Superior
8 Court (2007) 157 Cal.App.4th 1101, 1120 [citing Ray v. Ald Corp. (1977) 19
9 Cal.3d 22].) Plaintiffs have failed to allege that Defendants expressly or
10 impliedly agreed to assume Platinum Capital Group’s liabilities.
11 Therefore, Plaintiffs have failed to allege a cause of action for
12 Negligence against Defendants and Defendants’ Motion to Dismiss as to the
13 Fourth Cause of Action for Negligence should be granted without leave to
14 amend.
15 VIII. PLAINTIFFS’ CAUSE OF ACTION FOR DECLARATORY
16 RELIEF IS DUPLICATIVE OF RELIEF SOUGHT IN THE
17 FIRST AMENDED COMPLAINT AND THUS FAILS
18 Plaintiffs’ Opposition states “Plaintiffs can state a cause of action for
19 declaratory relief” because they have presented an actual controversy which is
20 the proper subject of declaratory relief. (Opposition 12:5-19.) Plaintiffs’
21 Opposition ignores the substance of Defendants’ Motion to Dismiss with
22 regard to the claim for Declaratory Relief. Specifically, Plaintiffs’ claim for
23 Declaratory Relief is wholly duplicative of the other causes of action alleged
24 in the FAC and is based on the same set of facts alleged by Plaintiffs.
25 Therefore, Plaintiffs’ cause of action for Declaratory Relief is improper and
26 should be dismissed with prejudice.
27 IX. PLAINTIFFS’ CAUSE OF ACTION FOR ACCOUNTING FAILS
28 Plaintiffs’ Opposition argues the FAC states a cause of action for
1 Accounting because of the claim that there is an “outstanding loan balance.”

2 (Opposition 13:1.) However, a single allegation of an outstanding balance
3 relating to origination of the loan with Platinum Capital Group in 2005 is
4 insufficient to properly allege a cause of action for Accounting against
5 Defendants. Plaintiffs’ fail to sufficiently allege that a fiduciary duty exists
6 between Plaintiffs and Defendants and/or that Plaintiffs are owed monies.
7 Further, Plaintiffs’ Opposition fails to address the fact that judicially
8 noticeable documents, not objected to by Plaintiffs, establish that Plaintiffs
9 were in fact delinquent on the loan. (See RJN, Ex. C & D.) Additionally,
10 Plaintiffs fail address in their Opposition the fact that their own Bankruptcy
11 filings fail to disclose any assets which Plaintiffs’ believe they are now owed
12 by Defendants. Therefore, Plaintiffs have failed to properly allege a cause of
13 action for Accounting.
14 X. PLAINTIFFS FAIL TO ADDRESS IN THEIR OPPOSITION,
15 AND THUS CONCEDE THAT THE FIRST AMENDED
16 COMPLAINT IS BARRED BY THE DOCTRINE OF JUDICIAL
17 ESTOPPEL
18 Plaintiffs have filed Bankruptcy on at least three separate occasions asserting
19 positions inconsistent with the claims contained in the FAC. Plaintiffs’ Opposition
20 fails to address whatsoever Defendants’ argument that the FAC is barred by the
21 doctrine of judicial estoppel. By failing to respond to this argument, Plaintiffs have
22 essentially conceded that the FAC is barred by the doctrine of judicial estoppel.
23 Thus, the Motion to Dismiss may be granted on this ground alone.
24 XI. PLAINTIFFS’ IMPROPER CONSOLIDATED OPPOSITION SHOULD
25 NOT BE CONSIDERED
26 As a final procedural matter, Plaintiffs have improperly “consolidated” their
27 memorandum in Opposition to two Motions to Dismiss filed separately by
28 Defendants and QLS. Local Rule 7-9 requires a party to file a written opposition
1 not later than twenty-one (21) days before the date designated for the hearing of the
2 motion. The Federal Rules of Civil Procedure do not allow for a consolidated
3 memorandum in opposition to two separately noticed motions brought by different
4 parties. Thus, as set forth by Local Rule 7-12, the Court should decline to consider
5 the improper opposition.
6 XII. CONCLUSION
7 Based on the foregoing, Defendants’ Motion to Dismiss should be granted in
8 its entirety without leave to amend. Allowing Plaintiffs leave to amend is an
9 exercise in futility because of the dispositive defenses raised in Defendants’ Motion
10 to Dismiss. For example, Plaintiffs’ claims arising out of the origination and alleged
11 cancellation of the loan in 2005 are barred by the applicable statutes of limitations.
12 Additionally, Plaintiffs have failed to allege tender and the current owner of the
13 Subject Property is no longer a party to this case barring claims for Quiet Title and
14 Cancellation of Instruments. Further, Plaintiffs are judicially estopped from
15 pursuing their claims because of multiple bankruptcy filings and inconsistent
16 positions presented to the various courts regarding their obligation under the subject
17 loan. For the reasons set forth herein, it is respectfully requested that the Court
18 grant this Motion and dismiss Plaintiffs’ FAC in its entirety, with prejudice, as to
19 Defendants.
20
21 DATED: January 9, 2017 Respectfully submitted,
22 GREEN & HALL, LLP
23
By: /s/ Rachel C. Zwernemann
24 Howard D. Hall
Rachel C. Zwernemann
25 Attorneys for Defendants
The Bank of New York Mellon as Trustee for
26 Structured Asset Mortgage Investments II Inc.
Mortgage Pass-Through Certificate Series 2005-
27 AR8 and Nationstar Mortgage LLC
(erroneously sued as Nation star Mortgage)
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 January 9, 2017, I served the within document(s) described as:
5 REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT BY DEFENDANTS THE
6 BANK OF NEW YORK MELLON AS TRUSTEE FOR
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
7 MORTGAGE PASS-THROUGH CERTIFICATE SERIES 2005-
AR8
8
on each interested party in this action as stated below:
9
SEE ATTACHED SERVICE LIST
10
BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed
11 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
12 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.
13
I declare under penalty of perjury under the laws of the United States of
14 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.
15
Executed on January 9, 2017, at Santa Ana, California.
16
17
/s/ Rebecca Vogel
18 Rebecca Vogel
19
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

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Case 5:16-cv-01518-JGB-DTB Document 55 Filed 01/09/17 Page 1 of 14 Page ID #:671

1 GREEN & HALL, LLP

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 II. PLAINTIFFS’ FAILURE TO TENDER BARS THEIR FIRST

1 the Subject Property. (Id.) In response to these arguments, Plaintiffs’

1 as successors for any past action by Platinum Capital Group. In California, a

1 Accounting because of the claim that there is an “outstanding loan balance.”

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