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Brian P. Ballo, Esq. #134892 Law Office of Brian Ballo 120 Vantis, Suite 300 Aliso Viejo, CA 92656 P: (949) 690-4100 F: (949) 315-3100 ballolaw@gmail.com Attorney for Plaintiffs Jill M. Hanoka and Steve R. Hanoka

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER JILL M. HANOKA, an individual; and, STEVE R. HANOKA, an individual ) ) ) ) Plaintiffs, ) ) vs. ) ) ) ONEWEST BANK, FSB, a federal ) savings bank, and federally ) chartered corporation, doing ) business under the name IndyMac ) Federal Bank, and its IndyMac ) Mortgage Services division; ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY, as Trustee of the INDX ) MORTGAGE LOAN TRUST 2006-AR6,) MORTGAGE PASS THROUGH ) CERTIFICATES, SERIES 2006-AR6; ) AZTEC FORECLOSURE ) CORPORATION, a California ) corporation; GLOBAL MORTGAGE ) FUNDING, INC., California ) corporation; NEWPORT BEACH ) ESCROW, INC., a California ) corporation; and, DAMIEN ROBERT ) KUTZER, an individual; and Does 1 through 10, Defendan ts. _______________________________________ CASE NO. 30-2010-00469171

PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT

DATE: June 23, 2011 TIME: 8:30 a.m. DEPT.: C-24 Complaint filed: April 21, 2010 Assigned to: Hon. Derek W. Hunt

-1Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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Plaintiffs Jill M. Hanoka and Steve R. Hanoka (collectively, Hanokas or "Plaintiffs) respectfully submit these Memorandum of Points and Authorities in Opposition to Defendants Demurrer to Plaintiffs Complaint. TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES

Page I.
INTRODUCTION ............................................................................................. ............... 3

II.

BACKGROUND ......................................................................................... 4

FACTS

III.THE

LEGAL

STANDARD 6

ON

DEMURRER

.................................................

IV.

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NO PAYOFF TENDER REQUIREMENT EXIST, SINCE THERE ARE NO ALLEGATIONS OF FORECLOSURE PROCESS IRREGULARITIES, NOR IS RESCISSION SOUGHT ............................................................................ 8 VI. LEGAL ARGUMENTS 8 TO SPECIFIC CAUSES OF ACTION

..........................

A. Plaintiffs Can State a Second Cause of Action for Violation of 15 U.S.C., Section 1641 ............................................................................................................ 9 Plaintiffs Can State a Third Cause of Action for Violation of Civil Code, Section 2937 ....................................................................................................... ..... 9 C. Plaintiffs Can State a Fourth Cause of Action for Violation of -2Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

B. 24
25 26 27 28

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Civil Code, Section ...............................................................................................

2923.5 10

D. Plaintiffs Can State a Fifth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing .......................................................... 11 E. Plaintiffs Can State a Sixth Cause of Action for Violation of the DoddFrank Act, 15 U.S.C., Section 1482 (a) and

(b) ...................................................

12

F. Plaintiffs Can State a Seventh Cause of Action for Declaratory Relief For Declaratory Relief ............................................................................................ 13

VIII. CONCLUSION ............................................................................................................ 14

-3Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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I.

INTRODUCTION Plaintiffs Verified Complaint alleges not only that Plaintiffs were

defrauded by the originating home loan broker1, but also that demurring Defendants OneWest Bank, FSB, and Deutsche Bank National Trust Company, as Trustee (Deutsche Bank),2 violated federal and state laws in attempting to foreclose against Plaintiffs home, by: Failing to notify Plaintiffs as required by 15 U.S.C., Section 1641, that the subject $542,000 Loan3 had been transferred in 2009 from IndyMac Bank to IMB HoldCo, then restructured as OneWest Bank, and in 2010, when OneWest Bank sold the Loan to Deutsche Bank, as Trustee, for INDX. (Second Cause of Action). Failing to notify Plaintiffs as required by Civil Code, Section 2937, when the loan servicing rights had been transferred in or about 2010 (Third Cause of Action). Failing to contact the borrowers as required by Civil Code, Section 2923.5, prior to recording the Notice of Default on January 26, 2011, to assess the borrowers financial situation and to explore options to avoid foreclosure (Fourth Cause of Action). Failing to provide Plaintiffs with a Non-Approval Notice as required by the Dodd-Frank Act, 15 U.S.C., Section 1482(a) and (b) (Sixth Cause of Action). Thus, the graveman of Plaintiffs Complaint alleges that the Defendant banks did not comply with statutes designed to ensure that lenders act fairly with borrowers, and seeks injunctive relief against a pending foreclosure sale, while the Hanokas updated Loan Modification Application is being rereviewed by Defendants OneWest Bank and Deutsche Bank.
1

As alleged in paragraph 35 of the Complaint, the Defendant brokers fraudulently caused the Hanokas to both sign a Promissory Note and Deed of Trust for approximately $480,000, then fraudulently and materially changed such Loan documents, such that: (a) the Promissory Note improperly indicated a principal amount of $542,500, and improperly indicated that it was signed by Jill M. Hanoka only, and (b) the Deed of Trust improperly indicated a principal amount of $542,500, signed by both Jill M. Hanoka and Steve R. Hanoka.
2 3

Deutsche Bank is Trustee for the true loan investor INDEX Mortgage Loan Trust 2006ARB, Mortgage Pass Through Certificates.

-4Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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Plaintiffs and this Court understand very well that Plaintiffs have no absolute right to a loan modification, therefore, Defendants assertion that this is Plaintiffs position, is a strawman argument. Rather Plaintiffs allegations can be summed up as follows: if Defendants dont want to approve Plaintiffs for a loan modification, and instead want to foreclose against Plaintiffs home and family, then Defendants had better follow all the statutes and act fairly when reviewing and denying Plaintiffs loan modification application, as well as follow all the statutes requiring lenders to contact borrowers before instituting the foreclosure process, and to give borrowers proper notice of when their loan was sold, and the servicing rights transferred. Simply put, because Defendants did not properly follow these rules, they are not entitled to foreclose. Defendants have also asserted that Plaintiffs must first pay their debt in full before even being allowed to challenge the foreclosure sale. However, he so-called tender rule only applies when a borrower seeks to set aside or rescind a foreclosure sale, not when a borrower disputes the principal amount due, and seeks a modification. Defendants statute of limitations challenges to Plaintiffs second cause of action also fail, notwithstanding Plaintiffs allegations as to when certain events loan transfer transactions may have taken place. However, Plaintiffs had no notice that INDX was the true investor, when the Notice of Default was recorded on January 26, 2011. Accordingly, as further argued in this Memorandum of Points and -5Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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Authorities, Defendants Demurrer should be overruled. I. BACKGROUND FACTS Plaintiffs allege -- on information and belief, and in retrospect -- that after the subject Loan was fraudulently funded in 2006, there were transfers of the Loan during 2009 when IndyMac Bank became IMB HoldCo, then restructured as OneWest Bank, and again, and 2010, when OneWest Bank sold the Loan to Deutsche Bank, as Trustee, for the true beneficiary - INDX. 19-23 of the Verified Complaint. However, the allegations of paragraph 47 of the Complaint make clear that the failure of Defendants to comply with [15 U.S.C., Section 1641, which require lenders to notify borrowers within 30 days of a loan transfer], meant that the Hanokas did not know when they received the Notice of Default [recorded January 26, 2011] that all past due amounts were actually owed to INDX.4 Although Plaintiffs were approved for a trial loan modification plan under the Home Affordable Modification Program (HAMP) on February 9, 2010, and again on April 13, 2010, and notwithstanding their timely payments of all amounts due under these two trial modification plans, the Hanokas have not yet been approved for a permanent loan modification. Defendants assertion in their moving papers that the Hanokas have been denied for a loan modification is not supported by any evidence. On January 26, 2011, Aztec, as Trustee under the Deed of Trust
4

The Hanokas lack of knowledge as to the identity of the true beneficiary until January 2011, is distinct from the Hanokas realization in December 2009, that the Promissory Note provided to them by IndyMac was false and fraudulent regarding the loan amount. See paragraph 22 of the Complaint.

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Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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securing the Loan, recorded a Notice of Default on behalf of Deutsche Bank, as Trustee, for INDX, which made an Election to Sell the Property in a nonjudicial foreclosure sale. On February 27, 2011, the Hanokas submitted another Loan

Modification Application which sought to modify the Loan, and cure the Loan delinquency. On March 21, 2011, the IndyMac Mortgage Services division of OneWest wrote the Hanokas a letter stating that the Hanokas were not eligible for a loan modification under the HAMP program, however, could be considered under an internal loan modification. As of the filing of this Complaint, the status of any internal loan modification review is unknown to Plaintiffs. On or about May 20, 2011, a Notice of Trustees Sale was recorded, scheduling a June 10 foreclosure sale, which has been postponed. On May 24, 2011, an updated Loan Modification Application was again submitted. IV. THE LEGAL STANDARD ON A DEMURRER A. The Standard for Ruling on a Demurrer is Liberal

Construction. Code of Civil Procedure, Section 452 sets forth the legal standard for ruling on a demurrerliberal construction with a view to substantial justice between the parties. (See Stevens v. Sup. Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.) The court must, in every stage of an action,

disregard any defect in the pleadings which does not affect the substantial -7Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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rights of the parties. . . All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. Gressley v. Williams (1961) 193 Cal.App.2d 636, 639. B. Defendants Bear A Heavy Burden On A General Demurrer. In California, the Court is required to accept the allegations of a Complaint as true when ruling on a demurrer. Witkin, Summary of

California Procedure (2d Ed.) Pleading, 800, p. 2413. Plaintiff need only allege facts in ordinary and concise language. California Code of Civil Procedure 425.10. A complaint states facts sufficient to constitute a cause of action if it appears the plaintiff is entitled to any relief. [Addiego v. Hill, 238 Cal.App.2d 842 (1965).] In the context of a demurrer, complaints must be liberally construed. [Buss v. J.O. Martin Co., 241 Cal.App.2d 123, 133-34, (1st Dist. 1966)]. It has been held that a Plaintiff need not plead facts with specificity where the facts are within the knowledge and control of the defendant and are unknown to Plaintiff. [Credit Managers Association of Southern California v. Superior Court, 51 Cal.App.3d 352, 361 (1975) citations omitted.] A demurrer can be used only to challenge defects that appear on the face of a complaint. For the purpose of testing the sufficiency of the pleading on demurrer, the court must accept as true all material facts properly pleaded. [Blatty v. New York Times Co., 42 Cal. 3d 1033, 1040 (1986); Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer. [Stevens v. Superior Court, 180 Cal. App. 3d 605, 609-10 (1986).] -8Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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It is error to sustain a demurrer if it appears that the plaintiff is entitled to any relief under the circumstances pleaded. [Dubins v. Regents of Univ. Of Cal., 25 Cal. App. 4th 77, 82 (1994); Jack Heskett LincolnMercury, Inc. v. Metcalf, 158 Cal. App. 3d 38, 41 (1984).] If there is a

reasonable possibility that a pleading defect can be cured, leave to amend must be granted. [Platt v. Coldwell Banker Residential Real Estate Servs., 217 Cal. App. 3d 1439, 1444 (1990); Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985).] standards. NO PAYOFF TENDER REQUIREMENT EXIST, SINCE THERE ARE NO ALLEGATIONS OF FORECLOSURE PROCESS IRREGULARITIES, NOR IS RESCISSION SOUGHT Under California law, the tender rule requires that as a precondition to challenging a foreclosure sale, the borrower must make a valid and viable tender to the lender of the amount due on the loan. California Civil Code 1691. However, this rule only applies to causes of action to set aside a Defendants demurrer cannot be granted under these

V.

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foreclosure sale, cancellation of a trustees deed, or where a borrower is seeking rescission of the loan based on violations of the federal Truth-inLending Act. Here, Plaintiffs do not dispute the validity of the First Loan -- they seek to have it modified, not rescinded. Therefore, the so-called tender rule

does not apply. Again, Plaintiffs are suing the Defendant lender and servicer for violation of federal and state laws designed to give notice of loan and servicing transafers. The cases cited by OneWest are inapposite; the tender rule does not bar such causes of action. -9Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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Moreover, tender may not be required where it would be inequitable to do so, Onofrio v. Rice (1997) 55 C.A.4th 413, 424. At present, the Complaint is silent as to whether Plaintiffs can, or are willing to tender, the full amount due as a condition to proceeding with their Complaint. If the Court is

requiring a more specific showing, the the Court should give Plaintiffs leave to amend the Complaint to make appropriate tender allegations, or to make such a showing. VI. LEGAL ARGUMENTS TO SPECIFIC CAUSES OF ACTION A. Plaintiffs Can State a Second Cause of Action for Violation of 15 U.S.C., Section 1641 Defendants argue that Plaintiffs TILA cause of action is barred by a one year statute of limitations, and point to paragraph 21 of the Complaint, which alleges on information and belief that at some time after June 2009, OneWest Bank sold the Loan to Deutsche Bank, as Trustee, for INDX, the current Loan Investor, however, through its IndyMac Mortgage Services division, retained the servicing rights. However, Defendants confuse chronological allegations to make their Complaint intelligible, with either the actual dates that the loan transfers and servicing rights transfers occurred (to which there is no clear evidence), or the date on which Plaintiffs had actual or constructive knowledge as to when Deutsche Bank, as Trustee for INDX, became the true investor. Here, as alleged in paragraphs 46-47 of the Complaint, Plaintiffs did not know in early February 2011, soon after the Notice of Default was recorded on January 26, 2011, that Deutsche Bank, was the Trustee for INDX, -10Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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the true investor. Thus, since Plaintiffs action was filed on April 21, 2011, this is well within the applicable one year statute of limitations. In the alternative, Plaintiffs argue that the doctrine of equitable tolling of the statute of limitations should apply. Unlike the initial loan transaction of which a borrower is obviously aware, where a party injured by another's fraudulent conduct "remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered ..." Osterneck v. E.T. Barwick Indus., 825 F.2d 1521(11th Cir.1987), aff'd, Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). Equitable tolling" is the doctrine under which plaintiffs may sue after the statutory time period has expired if they have been prevented from doing so due to inequitable circumstances. TILA is subject to equitable tolling. King v. California, 784 F.2d 910, 914-15 (9th Cir.1986). Accordingly, either by reason of whenever the actual loan transfer date occurred as to which there is no clear evidence or by reason of calculating the statute of limitations period from when Plaintiffs could have reasonably discovered the loan transfer following the recording of the Notice of Default, Plaintiffs cause of action for violation of 15 U.S.C., Section 1641, was filed timely, and states a cause of action. B. Plaintiffs Can State a Third Cause of Action for Violation of Civil Code, Section 2937 The legislative purpose of Civil Code, Section 2937, which requires notice to the borrower when there has been any transfer of the loan -11Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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servicing rights, is to protect the borrower or subsequent obligor from fraudulent business practices. Here, neither OneWest Bank, nor its IndyMac Mortgage Services division, nor Deutsche Bank, nor INDX, notified the Hanokas that the servicing rights had been retained by or transferred to IndyMac Mortgage Services when the Loan was sold.5 Nothing in Civil Code, Section 2937, states that the duty to notify the borrower only arises in third-party transfers. Moreover, it is not clear from the facts, which Plaintiffs have only alleged on information and belief at this point, that there was not a transfer subject to the notice requirements of Civil Code, Section 2937. Accordingly, Plaintiffs should be allowed to pursue their cause of action for violation of Civil Code, Section 2937, with any attack made on the appropriate facts at a later pleading stage. C. Plaintiffs Can State a Fourth Cause of Action for Violation of Civil Code, Section 2923.5 Defendants point to the boilerplate robo-signed Declaration attached to the Notice of Default, and argue that presumptions favoring the legitimacy of foreclosure proceedings should apply to bar Plaintiffs cause of action for violation of Civil Code, Section 2923.5. However, this boilerplate Declaration needs to be contrasted with the Verified Complaint, which alleges that the Hanokas deny any such discussions [wherein any lender or servicer contacted the borrower and
5

At this time, Plaintiffs only speculate, with the assistance of counsel, that a new Servicing Agreement was entered into between IndyMac Mortgage Services with Deutsche Bank on behalf of INDX.

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Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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assessed

their

financial

condition

and/or

explored

options

to

avoid

foreclosure] took place before the Notice of Default was recorded. As indicated by Mabry v. Superior Court (June 4, 2010) 185 Cal. App. 4th 208, when a conflict exists in the testimony regarding compliance with Civil Code, Section 2923.5, the Court should prudently find that the borrower has a reasonably likelihood of prevailing on the merits of a cause of action alleging a violation of this statute, and postpone the foreclosure sale. Moreover, at the demurrer stage, when the Court is required to accept the allegations of a Complaint as true [Witkin, Summary of California Procedure (2d Ed.) Pleading, 800, p. 2413], the Court should overrule the demurrer.
D. Plaintiffs Can State a Fifth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

The contracts at issue here are the Promissory Note and Deed of Trust, which, although transferred twice, are the contracts upon which Defendants seek to foreclosure against Plaintiffs interests in their Property. Complaint 65. Plaintiffs allege that Defendants violated this covenant by (a) failing to meaningfully evaluate Plaintiffs' financial condition; (b) failing to process Plaintiffs' Loan Modification Applications under established HAMP and internal guidelines, as OneWest Bank represented to Plaintiffs that it would, and (c) by directing the Trustee under the Deed of Trust to pursue a nonjudicial foreclosure sale. Complaint 66. Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Carma Developers, Inc. v. -13Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371, 6 Cal.Rptr.2d 467, 826 P.2d 710 (1992) (quoting Restatement (Second) of Contracts 205). The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Such power must be exercised in good faith." Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, C.A.9 (Cal.1999). A breach of a specific provision of the contract is not a necessary prerequisite to a breach of an implied covenant of good faith and fair dealing. Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371, (1992). Plaintiffs allegations should be construed liberally. Accordingly, Defendants Demurrer to the Complaints fifth cause of action should be overruled.
E. Plaintiffs Can State a Sixth Cause of Action for Violation of the DoddFrank Act, 15 U.S.C., Section 1482 (a) and (b)

As point out in the Factual Background section, above, and as set forth in paragraphs 30 and 70 of the Complaint, Plaintiffs allege that Defendants have failed to approve Plaintiffs for a permanent loan modification after providing two temporary loan modifications. Notably, it is not clear whether Defendants have actually denied Plaintiffs for a permanent loan modification. The IndyMac Mortgage Services division letter date March 21, 2011, only states that Plaintiffs are not eligible for HAMP, but could be considered under an internal loan modification program. Meanwhile, a foreclosure sale date was set. As such, Plaintiffs are being effectively denied a loan

modification, which gives rise to Defendants duty to explain such denial per -14Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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the Dodd-Frank Act. Defendants assert that the Dodd-Frank Act does not apply since the Act had not even been enacted when the Hanokas were denied a permanent loan modification. However, again, Defendants counsel is attempting to

establish modification denial, when no Defendant lender or servicer has issued any letter denying a permanent loan modification, and no such final denial has been alleged. Rather, it is the looming pendency of the

foreclosure that is creating an effective denial, and which gives rise to a duty that OneWest explain the loan modification status.
F.

Plaintiffs Can State a Seventh Cause of Action for

Declaratory Relief In the Seventh Cause of Action, Plaintiffs request that the Court review and interpret the various Loan, Note and foreclosure documents, and declare that Defendants are not entitled to foreclose. As supported by Plaintiffs other causes of action, Plaintiffs have alleged that present and actual controversies exist as to whether Defendants have adequately complied with several federal and state statutes.

Accordingly, since Plaintiffs have adequately pled facts sufficient to support a cause of action for Declaratory Relief, Defendants' Demurrer thereto should be denied. VII. CONCLUSION For all the foregoing reasons, Defendants partial Demurrer to Plaintiffs' Complaint, should be overruled and/or denied. To the extent that this Court grants any part of Defendants Demurrer, -15Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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then the Court should also grant Plaintiffs leave to file a First Amended Complaint to cure any defects, or add more specificity. Law Office of Brian P. Ballo

Dated: June 9, 2010 ____________________________ Brian P. Ballo, Esq. Attorney for Plaintiffs Jill and Steve Hanoka

-16Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)

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PROOF OF SERVICE
HANOKA v ONEWEST BANK

OC Superior Court, Case No. 30-2010-00469171 I reside in the County of Orange, State of California. I am over the age of 18 and am not a party to the within action. My address is 120 Vantis, Suite 300, Aliso Viejo, CA 92656. On June 9, 2011, I served Plaintiffs' Opposition to Defendants' Demurrer to Plaintiffs' Complaint, on: Andrew Miller, Esq. Allen, Matkins, et. al. 515 South Figueroa Street, Ninth Floor Los Angeles, CA 90071 _XX_ By Mail: I caused such envelope(s) to be deposited in the mail at my business address, addressed to the addressee(s) designated. I am readily familiar with the companys collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Irvine, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this affidavit. XX_ By Email: at amiller@allenmatkins.com ____ By Federal Express Overnight: I caused such envelope(s) to be delivered via Federal Express Overnight courier service to the addressee(s) designated. ____By Hand Delivery: I caused said envelope to be delivered by hand to the addressee(s) designated. I declare under penalty of perjury under the laws of the State of California that all the foregoing is true and correct. Executed this 9th day of June 2011.

_________________________ Brian Ballo, an Individual

-17Plaintiffs Memo Ps & As in Opposition to Demurrer (Hanoka v. OneWest Bank, et. al.)