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ELECTRONICALLY FILEDRedacted by Clerk of Court COURT OF COMMON PLEASFriday, July 26, 2013 10:54:54 AMCASE NUMBER: 2013 CV 04433 Docket ID: 18338294GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO201315544(krar)COURT OF COMMON PLEASMONTGOMERY COUNTY, OHIOJPMorgan Chase Bank, National Case No.Association3415 Vision DriveColumbus, OH 43219COMPLAINT IN FORECLOSUREPlaintiffvs.Permanent Parcel No. R72 14910Stanley J. Martin 00451041 Ames AvenueDayton, OH 454323611 Cleveland AvenueDayton, OH 45410Montgomery County Treasurer451 West Third StreetDayton, OH 45422Dayton Firefighters FCU338 South Patterson BlvdDayton, OH 45402Federal Home Loan MortgageCorporation8200 Jones Branch Drive Mailstop202McLean, VA 22102'I'|'|'I'I'I'|Kathleen A. Martin i'I'I'I'I'I'|'I'IDefendants.LSR201315544D157P1300C9COMPLAINTCOUNT ONE1. Plaintiff is in possession of, and entitled to enforce anote executed by the defendants, Stanley J. Martin and KathleenA. Martin by virtue of transfer from the Federal DepositInsurance Corporation (“FDIC”), an agency of the United StatesGovernment, in its capacity as receiver of Washington MutualBank. A copy of the Affidavit of the FDIC is attached heretoas Exhibit A, and a copy of the note is attached hereto asExhibit B.2. Defendants defaulted under the terms of the note, andplaintiff has performed all conditions precedent to accelerationand has accelerated the debt.3. There is due to plaintiff from the defendants, StanleyJ. Martin and Kathleen A. Martin, upon the note, the sum of$37,127.59, interest at the rate of 7.8750% per year fromFebruary 1, 2013, and as may be subsequently adjusted pursuantto the terms of the Note, plus court costs, advances, and othercharges as allowed by law.COUNT TWO4. Plaintiff incorporates the allegations of Count One andfurther states that the aforesaid note is secured by a mortgage, acopy of which is attached hereto as Exhibit C, and that said«Barcode»«BarcodeLabel»mortgage constitutes a valid first lien upon the real estatedescribed therein.5. The mortgage was filed for record on August 24, 1995, inMicrofiche No. 95-2408, Page E07, of the county recorder's recordsand it was assigned to the plaintiff herein. The conditions ofdefeasance contained therein have been broken; plaintiff hascomplied with all conditions precedent; and plaintiff is entitledto have said mortgage foreclosed. Copies of said Assignments areattached hereto as Exhibits D, E., and F.6. Plaintiff says that the defendant, Dayton FirefightersFCU, may claim an interest in the above described property byvirtue of a mortgage from Stanley J. Martin and Kathleen A.Martin, filed for record on July 6, 2005, in Mortgage No. 05-064890, of said County Recorder's Records.7. Plaintiff says that the defendant, Montgomery CountyTreasurer, may claim an interest in the above described propertyby virtue of any unpaid real estate taxes and/or assessments dueand owing on the subject property.8. Plaintiff says that the defendant, Federal Home LoanMortgage Corporation, may claim an interest in the abovedescribed property by virtue of a mortgage from Stanley J.Martin and Kathleen A. Martin, on February 10, 1986, inMicrofiche No. 86-0182, page D006, of said County Recorder'sRecords, which lien is believed to be paid off, however, notreleased of record.WHEREFORE, plaintiff prays for judgment against defendants,Stanley J. Martin and Kathleen A. Martin, in the amount of$37,127.59, together with interest at the rate of 7.8750% per yearfrom February 1, 2013, and as may be subsequently adjustedpursuant to the terms of the Note, plus court costs, advances, andother charges, as allowed by law; that plaintiff's mortgage headjudged a valid first lien upon the real estate described herein,that said mortgage be foreclosed; that said real property may beordered sold, and that plaintiff be paid out of the proceeds ofsuch sale; for such other relief, legal and equitable, as may beproper and necessary; and that all the other defendants herein berequired to set up their liens or interests in said real estate orbe forever barred from asserting same./s/ Carson A. RothfussCarson A. Rothfuss, Trial CounselOhio Supreme Court Reg. #0088636LERNER, SAMPSON & ROTHFUSSAttorneys for JPMorgan Chase Bank,National AssociationP.O. Box 5480Cincinnati, OH 45201-5480(513) 241-3100(513) 241-4094 Fax(877) 661-7891 Toll Free Faxattyemail@lsrlaw.comThe undersigned hereby certifies that an examination of thepublic records of Montgomery County, Ohio has been made todetermine the ownership of the subject real estate and allparties who may claim an interest therein, and that, in theopinion of the undersigned, all such parties have been named asparties to this action, stating as exceptions any interestedparties not so named./s/ Carson A. RothfussCarson A. RothfussEXHIBIT ACUYAHOGA COUNTY RECORDERi LILLIAN J GREENE - 3Recording Requested By and aWhen Recorded Mail to: DEAF 9/3/2009 11:36:00 AMWashington Mutual Bank 200909030149Office of the Corporate Secretary1301 2nd Ave., WMC3501Seattle, WA 98101 Space Above for Recording InformationAFFIDAVIT OF THEFEDERAL DEPOSIT INSURANCE CORPORATIONI, Robert C. Schoppe, having been first duly sworn, hereby make this Affidavit and saythat:1 J am an authorized representative of the Federal Deposit Insurance Corporation,an agency of the United States government (the “FDIC”).2. On September 25, 2008, Washington Mutual Bank, formerly known asWashington Mutual Bank, FA (“Washington Mutual”), was closed by the Office of ThriftSupervision and the FDIC was named receiver.3. As authorized by Section 11(d)(2)(G)(i)(I) of the Federal Deposit Insurance Act,12 U.S.C § 1821(d)(2(G)G)(ID, the FDIC, as receiver of Washington Mutual, maytransfer any asset or liability of Washington Mutual without any approval, assignment, orconsent with respect to such transfer.4. Pursuant to the terms and conditions of a Purchase and Assumption Agreementbetween the FDIC as receiver of Washington Mutual and JPMorgan Chase Bank,National Association (“JPMorgan Chase”), dated September 25, 2008 (the “Purchase andAssumption Agreement”), JPMorgan Chase acquired certain of the assets, including allloans and all loan commitments, of Washington Mutual.SE As aresult, on September 25, 2008, JPMorgan Chase became the owner of theloans and loan commitments of Washington Mutual by operation of law.Executed this Quo day of October, 2008 in Seattle, King County, Washington. rt C. SfhoppeTitle: Receiver In Charge for FDIC asReceiver of Washington Mutual BankDOCSSEA/186745.v1-lNOTARY’S ACKNOWLEDGMENTSTATE OF WASHINGTON )) SS.COUNTY OF KING )I certify that I know or have satisfactory evidence that Robert C. Schoppe is theperson who appeared before me, and said person acknowledged that he signed thisnt andinstrument, on oath stated that he was authorized to execute the instrume:acknowledged it as the Receiver In Charge of the Federal Deposit Insurance Corporation,as Receiver of Washington Mutual Bank to be the free and voluntary act of such party forthe uses and purposes mentioned thercin.Dated his day of October, 2008. SOYSS UNE wl i Notary Public in andif4 % Washington, residing inZé My commission expires: _/© sR207 SERCEwasnssTANS 4 4,Oy neehy“ge ateDOCSSEA/186745.vi9093466!Return-Address>- E aWashington Mutual BankOffice of the Corporate Secretary1301 2nd Ave., WMC3501Seattle, WA 98101 300 9020 08100: 44.00PAGE-091B A3:tBAe coun, GAPlease print or type information WASHINGTON STATE RECORDER’S Cover Sheet _(acw 65.04)Document Title(s) (or transactions contained therein): (all areas applicable to your: document must be filled in)Affidavit of the Federal Deposit a oe1. urance Corporation i 3. 4. Reference Number(s) of Documents assigned or released:Additional reference #’s on page of document Grantor(s)_ Exactly as name(s) appear on documentWashington Mutual Bank, formerly known1. _ag Washin: Mu: FAFederal Deposit Insurance2. Corporation e——Additional names on page of document. Grantee(s) Exactly as name(s) appear on document1, JeMorgan Chase Bank, National Association2. ,Additional names on page of document, ALegal description (abbreviated: i.e. lot, block, plat or section, township, range) Additional! legal is on page of document,Assessor’s Property Tax Parcel/Account Number D Assessor Tax # not yetassigned The Auditor/Recorder will rely on the information provided on this form, The staff will not read the documentto verify the accuracy or completcness of the indexing information provided herein. { am signing below and paying an additional $50 recording fee (as provided in RCW 36.18.010 andreferred to as an emergency nonstandard document), because this document does not meet margin andformatting requirements. Furthermore, I hereby understand that the recording process may cover up orotherwise obscure some part of the text of the original document as a result of this requestSignature of Requesting Party [Note to submitters Do not sign above nor pay additional $50 fee if the document mecis margin/formatting requirements . Return To:LERNER, SAMP:PO Boxstap onCINCINNATI OH 45273-6236800 364147aucUST 16, 1995 DAYTON » “onto{Dats} ici] {Sins}3611 CLEVELAND AVENUE,DAYTON, OHIO, 45410Propecty Addcess]1, BORROWER'S PROMISE TO PAY ;Tn return for a loan that I have received, [ promise to pay U.S. $ 57,750.00 (this amount is called“principal"), plus interest, to the order of the Lender. The Lender isPARAMOUNT MORTGAGE COMPANY INC. AN O&IO COMPANYTunderstandthat the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled toreceive payments under this Note is called the "Note Holder."2. INTEREST‘ Taterest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interestat a yearly rate of 7.875 %.‘The interest rate required by this Section 2 is the rate J will pay both before and after any default described inSection 6(B) of this Note.3, PAYMENTS(A) ‘Time and Pluce of PaymentsIwill pay principal and interest by making payments every month.1 will make my monthly payments on the 1st day of each month beginningon OCTOBER 01»1995 - 1 will make these payments every month until I have paid all of the principal and interest and any othercharges described helow that I may owe under this Note, My monthly payments will be applied to interest beforeprincipal. If, on SEPTEMBER G1, 2025 ; Istill owe amounts under this Note, I will pay thoseamounts in full on that date, which is called the "Maturity Date."J will make my monthly payments at 1153 N. PAIRPIELD RO ATTN: CASHIER‘S DEPT.BEAVERCREEK, OHIO 45432 or ata different place if required by the Note Holder.(B) Amount of Monthly PaymeatsMy monthly payment will be in the amount of U.S.$ 428.734, BORROWER'S RIGHT TO PREPAYThave the right to make payments of principal at any time before they are due. A payment of principal only is‘known as a "prepayment." When I make a prepayment, I will fell the Note Holder in writing that I am doing so.I may make a full prepayment or partial prepayments without paying any prepayment charge. ‘The Note Holderwill use all of my prepayments (o reduce the amount of principal that I owe under this Note. If | make a partialprepayment, there will be no changes in the due date or in the amount of my monthly payment unless the NoteHolder agrees in writing to those changes.5. LOAN CHARGESIf a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that theA interest or other loan charges collected or to be collected in connection with this loan exceed the permitted Ithe any such loan charge shail be reduced by the amount nacessiry to reduce the charge to the permitted limit;and Gi) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note7 Holder may choose to make this refund by reducing the principal T owe under this Note or by making a directpayment to me, If a refund reduces principal, the reduction will be treated as a partial prepayment, 6. BORROWER'S FAILURE TO PAY AS REQUIRED(A) Late Charge for Overdue PaymentsIf the Note Holder has not received the full amount of any monthly payment by the end of 15calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be5.00 % of my overdue payment of principal and interest. I will pay this late charge promptly butonly once on each late payment.{B) DefaultIf do not pay the full amount of each monthly payment on the date it is due, J will be in default,(©) Notice of DefaultIf] am in default, the Note Holder may send me a written notice tclling me that if 1 do not pay the overdueamount by a certain date, the Note Holder may require me to pay inunediately the full amount of principal which hasnot been paid and all the interest dhat I owe on that amount. ‘That date must be at least 30 days afler the date onwhich the notice is delivered or_nmiled to me.(D} No Waiver By Note HolderEven if, at a time when I am in dofaull, the Note Holder does not require me to pay immediately in full asdescribed above, the Note Holder will still have the right to do so if J am in default at @ later time.(E) Payment of Note Holder’s Costs and ExpensesIf the Note Holder has required me to pay immediately in full as described above, the Note Holder will have theright to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited byapplicable law. ‘Those expenses include, for example, reasonable attorneys? fees.MULTISTATE FIXED RATE NOTE - Single Family - FNMA/FHLMG UNIPT Ps: terprenacarr Form 3200 72/83QD, # ormnerWw ORYance Fons (2taiza20100- Wookie 281 tila2 bi8D0600 2o-} ey ?fn ill #100py ® @ omy v0. 7. GIVING OF NOTICESUnless applicable law requires a different method, any notice that must be given to me under this Note will begiven by delivering it or by mmiling it by first class mail to me at the Properly Address above or at a differentaddress if I give the Note Holder a notice of my different address.Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mailto the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of thatdifferent address.8. OBLIGATIONS OF PERSONS UNDER THIS NOTEIf more than one person signs this Note, each person is fully and personally obligated to keep all of the promisesmade in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or* endorser of this Note is also obligated to do these things. Any person who takes over these obligetions, including theobligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in thisNote. The Note Holder may enforce its rights under this Note against each person individually or against all of ustogether. This means that any one of us may he required to pay all of the amounts owed under this Note.9. WAIVERS1 and any other person who has obligations under this Note waive the rights of presentment and notice ofjonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. “Notice ofdishonor” means the right to require the Note Holder to give notice to other persons thal amounts due have not beenpaid. 10. UNIFORM SECURED NOTE: ‘This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protectionsgiven to the Note Holder under this Note, 2 Mortgage, Deed of Trust or Security Deed (the "Security Instrument"),dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keepthe promises which 1 make in this Note, ‘That Security Instrument describes how and under what conditions I may herequired to make immediate payment in full of all amounts I owe under this Note. Some of those conditions aredescribed as follows:Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or anyinterest in it is sold or transferred (or if @ beneficial interest in Borrower is sold or transferred andBorrower is not ¢ nuturel person), without Lender’s prior written consent, Lender may, at its option,require immediate payment in full of all sums secured by this Security Instrument, However, this optionshall not be exercised by Lender if exercise is prohibited by federal law as of the dats of this ScourityInstrument.If Lender exercises this option, Lencler shall give Borrower notice of acceleration. The notice shallprovide a period of not less than 30 days from the date the notice is delivered or mailed within whichBorrower mst pay all sums secured by this Security Instrument. If Borrower fails to pay these sums priorto the expiration of this period, Lender may invoke any remedies permitted by this Security Instrumentwithout farther notice or demand on Borrower,WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. KATHLEEN A. MARTIN eee “Borrower SISTANT TREASURER:ct }OLINA, AS!i iAN GAGE CORPORATIONCHASE MANHATIAN MORTGAGE | (Sign Original Only)BEAVERCREEK, OHIOPAY TO THR ORDER OF CHASE MANHATTAN MORTGAGE CORFORATION WITHOUT RECOURSE.DATED THIS 18TH DAY OF AUGUST, 1995 eo LEADOW FY WHITEEXECUTIVE VICE PRESIDENTB60 Page 2.02 Ferm 3200 12/83PMFrom: 19375869630 Page: 8/29 Date: 12/27/2007 2:11:40 30803 at JOY A. CL. :ecco eaRK ee SS AUG 24 PH IDs GyTURN iNOHTGONERY co CHIDOGHASE HANYATTAN MORTGAGE CORONATION RECORDED1500 NORTH ioTH STREET MONROE, LA 71201 °ee = ee Aare a a Por Rasa DadOPEN-END MorTGacn “=~ aD‘THIS MORTGAGE ("Security isteuaieat* is given on AVOUS? 16, 1995+ The moctgxgor isSTANLEY J. MARTIN AND KArHLiEN A, MARTIN, HUSBAND AND WIFE whose current widiling address is 3611 CLEVELAND AVENUE,DAYTON, O#TO 45910(CRonowe) This Soci Enatrumeot,giver to/ARANOUNT MORTGRGE CEPANY ING. RY OnTO couzay hich is organized! and eitcting under the taws of TuR StH7E OF OHTO ; fies is TSS" PRT aes tes STE B, BEAVERCREKK, cHTO 45492 pu vfsPXPTY SEVEN THOUAAND SEVER “UNORED FTSYY AND Sofas = ones Tender te principal ata of Dollars (U.S, $ 57,750,09Tis debt is evideaced by Borrower's note dated te stite dats as this Security Thatrwyncnt ("Rote"), which provides formonthly payments, with tho full det, APnot paid earlier, due and payable on ‘SEPYENBER 01, 7028‘This Security secures to Lender: (2) the repaymieato€ tha debt evidiaced by the Note, with faterest, and all renewals,Premaines ste modifications of the Note; (bl the payment ofall care Sans, with interest, advanced under paragcaph 7 toBrotact the security of this Scovrily Instrument; and (0) the Prrformemee of Borrawer's cavenaals and agrooments Uncle thieFenny Jostrument and the Note. Foc this porpaso, Bosrowed doce hereby martgags, gant an convey to Leador the followhngseseribed located in Honrootany (County, Objat‘StTUas ton SOUNTY OF MONTCONBRE, IN THE SEATE OF ofI0 ‘ANO IN THeCEPY OF DAYTON AND BEING LotFIFTY FIVE THOUSAND SEVEN HUNDREDGrbay 97x (55756) OF THE CONSECUTIVE Ni PARCEL 2,0, NO. R72~149-10~45, (2p cosy (Property Addrasn');on io INSTRUMENTSeana Ar cm weeseae coe MU THtories itt HayHORT 95-2406 Ea7Which has thoaddmee of 3621 CLEVELAND AVENUE, DArtONChio 45410 (Sirtad, Cty},From: 19375869630 Page: 9/29 Date: 12/27/2007 2:11:41 PM TOOBTHER WITH al the improversnts now or hertafier erectedFixtures now or hecefior « part of the property, All rplsconon oy editions shat Payment of Prinelal repayment and Late Charges. Borrower shal! promptly pay whoa ue thePeincipal of and interes on the. the Note and it and Jateas fo ca ‘anid any prepara le charges disSubject to applicable taw ar to 2 writien ‘waiver by Lender, Borrower shalt pay to, sum ("Funds") for: (a) yearly taxesaver this Security Instrument as & lien 04 Ibe Property; (b) yearly Hnacchold paynzoateearly batard or propecty instance premsitrs; (0) yeatly oud lusurance precaitins,Hums, if any; and (f) any sums payable by Bacrower ta Lender, in accordance with‘Une is not eufficlest to psy the Bserow tems when duc, Lender may so notify Borrower in writing, and, in suck caso Borrowershall pay to Lender the amount necessary to tuikc up tho deficiency. Borrever shal make wp the deficiency in oo mose thantwelve monthiy payineats, at Lendec's sole discretion.Upon paynoent in fall af all suns socured by this Security Instetment, Leader shalt Promplly refund to Borrower anyFuncis bel iy Lendee, If, uwder paragraph 21, Lender shall acquire or aell the Property, Lauder, prior to the acquisition or paleof the Property, shalt apply any Puads hall bye Lender a1 the (ime of acquisition or wile a5 @ credit against the sume secured bythis Security Instrument,3, Application of Payments, Unies applicable law provides otherwise, all payments recaived by Lendor under paragraphs1 ard 2 shall be applicd: first, w any prepayment cbarges due under the Nete: secoetl, to amounts payable wader paragraph 2;‘third, (o intorest due: fourth, to principal duc; abd last, jo any late charges dus under the Mtoe4 Liens. Boscower shall pay sll taxes, assoasments, charges, fines and impositions allributable to the Proportyhick may attain priority avoe this Security Instrum, and kasehold payments or round feats, if any, Borrower shall paythese obligations id the maanse provided iz paragraph 2, o¢ if mot pald in thet uanees, Borrower shall pay them on tinue dicectly{o the person owed payment, Borrower shall promptly furnish io Leader al) ‘stices of amocals to bo paid under thie paragraph,Ur Borrower makes these payments directly, Bo rower stall promptly fernish to Leuder receipts ovidenaing tho paytieata, form 2036 9/30By 0H 021 PortasGeel worn reneFrom: 19375869630 Page: 10/29 Date: 12/27/2007 2:11:41 PM if he restoration ¢ ropilr is economically feasible anit Lender's security Is oot lesseued. If the restoration or ps Prisérratlon, Maintennace and Protection of the Praperty; Horrower's Loan Applications Leasehotds.: Samrawee stall occupy, eslablish, and uss the Property 25 Borrower's princial residence witbin sixty days after be enecalion of(his Security Instren-ent asd shall continue 'o occupy the Property as Borrower's principal residence for at least one year aferit 1 Which consent shal! not he unreasonably withheld, or unlesssetenuating circ*mstances exist which ao beyond Borvower's control. Borrower shall not destroy, damage or ioupair theProperty, allow the Property 10 deteriorate, o commlt waste on the Property, Borrower shall be in default if any forfelturection of proceeding, beter civil or crimidal, is bagun that in Landers good faith judgment eould result in forfetune of theProperty or otherwise materially ital the lien etcatod by thik Security Insrumen of Lender's security Inerest, Borrower maycure such a default and refastats, as provider! in paragraph 18, by canting the action or proceeding (o be dismissed with a rulingti, in Lender's good faith delermination, precludes farfeluro of the Borrower's interest ka the Property or olfer eulerimpairment of the lien erated by this Securily fnstriment or Lender's securily inteyesl. Borrower stall also be in dofault if’ during the loan application process, eave matorially false of inacesieats information or statemeats to Londer (or failed(0 provide Lender with any malerial information) in connection with the [oan ovidenced by tho Note, including, but not limites!T2.Sehrestatations concerning Borrower's occupancy of the Proper” aa a prlacipal residence. FC this Security Iasicument Is 00 3{esschold, Borrower shall comply with all the provisions of the feasa. Jf Borrotver aaquires fee tile to the Property, theToaschold and the feo title shall not merge ualess Lepwat agrees to the merger in writing,7, Protection of Landers Rights in thy Property. If Borzowcr fails to perform the covenaals sad agreements eottsned inthis Security Insteumpent, or Use ig 2 legal proceeding that tay significanily effect Leader's rights itt the Property (auch ws aTwoceeding in bankrupicy, vrotate, for condimaation of forfeiture of to enfores laws or regulations), thea Lender may do andPay for whatever Is necessary {9 protest the value of the Property aud Lender’s rights i the Propety. Leader's setloaa mayinclude paying any sums stoured by a lien which has pelority over this Security Instrument, appearing in court, payingSrssonable altoraeys' foes and catesiug cu th: Property to make repairs, Allnough Lendor nay whe action todas this paregragh7, Leader does nol havo to do $6,Any amounts disbursed by Lender under this parapcagh 7 shall become additional debt of Borrawor secured by thisSecurity Instrament. Uniess Borrower and Leider agree to olbor tenns of ‘payorwnl, dese umounis shall beay intefes! from theddeio of disbursem*nt at the Note rafe and shall be gayable, with interest, upor notice from Leadee 1g Bowower requestingpaynant.8. Mortgage Insurance, 1 Lender equired mortgage insurance as a cendition of making the loan secured by this SecurityThcievmrent, Borrower slu*t! pay the premiums require! (© tuaintaia the nioeigage ineucanes in effect, Tf, for say season, themortgage insnrante coverge required by Lender lupses or ceases (a be in effect, Bocrower shall pay the promiums required tooblnin coverage substanthlly equivalent to the marigaze ineurance previously in effec, ata cast substantially equivalent to theSeat to Borrower of the aiortgage inturance proviourly in effect, froma an altemats mofigage insurer approved by Lendae. IFsubstantially equivalent mortgage Instirince caverage is not available, Boreower shall pay fo Lender each piomth a sum equal to‘ue-twelfth of the yearly mortgage fasurnace prominin being paid by Borrower When the lnsueance coverage lapsed oF ceed tobe in effect. Lendar will accopt, uso aad ratain these payuicatsas loss sesorve in liew of swortgige inatranoa, Loss reserve:Foca 8096 850 Qe em Pap sateLp YY hie MORT = -95-2408 ceoFrom: 19375869630 Page: 11/29 Date: 12/27/2007 2:11:41 PM Saud or cian for dansazes, director consequential in connected ‘with anythe Property, or for conveyance in fipy of condemnation, aro hereby assigned andtho even of fal aig of te Property the proces al be apie fo he une red by this Seewrity Instrument,\shalher or wot then due, with any excess paid to Bosrowes, a ing oF tho fi Se slid to the sume seve hy thls Secuity Intranet wither ut hatte ane oe Ihefacet is tanned by Berowe, of afler nic By Lender to Bornes tat the condennar ota to make anssracd oF seitle 4 culm for dees, Porweiver fats to cespond to Lender within 30 days alter the data the uofiee is given,Lender is authorized to. t and the proceeds, at its opting, sither (o restoration of ir of the Property or to the sums‘scoured by this Sagurity Ttasoee are not then do, =Unless Lencer and Rorsower otherwisn apres in welt, any application of procesds 10 principal shall aot exttexd OFPosipiae tie die dato of the monthly payracats referred to in paragraph 1 and 2. chango the amount of auch payments,{1, Borrower Not Released} Farbcarance By Leoder Not a Walver, Extension Of the tie for payment or modification12. Successors ancl Assigns Bowid; Joint and Severat Linbilityy Co-signers, The covenants and agreements of thiaSeverity Tusintment shall bind and benefil tbs siccemors and assigns of Lender and Borrower. sulgject to the provisions ofmake any atcottunodations with regard to the terms of this ‘Security Instrument or tho Note without that Borrower's conveut,13, Lean Charges, If the loan secured ‘by thls Security Instrument is subject to a law which sets maxlroum joan charges,‘and that Taw i, finally interpreted 50 that the latereet or other loan charges collected or ta he collected in conpection With thaJoan exceed tho permitted Hmits, thes: (2) any such loa change shall hs reduced hy the aivount necestary to reduce the charge:{a the pecasned Limit; and (4) any sums zhrendy collected from Borrower whieh exceoded pastuitted limits will be reftusdad toBorrower. Lender may choose to make this refund hy reducing the principal owel vader tho Note or by making a directPayment to Borrower. [f a rofund reduces Peiwipal, tha teductioa will be weated a3 @ Partial prepsymecot without anyPrepayinent change uner the Notc.14, Notices. Any uotica to Borsawer provided far in this Security Instrument shail be given by dativering it or 6y mailingit by firet clase msi! unless upplicahte law Fequives use of another method. Ths notices shall be directed to the Property Address:Cf kin other aukirass Rertower desiguatee by wctioa to Leaver, Any notice to Lender sball be given by first olass mail toLender's address stated herain or any other adress Lender designates by gotice to Borrower, Any notices provided for in thisSecurity Insteument shall be desnsed to have bos givan to Borrower or Lendar whom given es provided in this15. Governing Law; Severabillty, ‘This Scourity Instrument shall be governed by federal Taw and the faw of theusiticticn in whieh the Property is losated. Ia the avent that any provision or clause of eos Security Instrument or the Notoconflicts with appliceblo law, such conflict shall not sffect other provisions of this Security Inateument or tha Note whieh can bo.Biven effect without the conflicting provision. To this ond dhe provisions of this ‘Socurlty Instrument and the Novo are declaredto ba severable.1 Borrower's Copy. orrowur sll be given one caufored! copy of he Nolo sud ofthis Security lastumentFoe 9036 9/30Byes MORT —-95-a4ag oefe lan EtaFrom: 19375869630 Page: 12/29 Date: 12/27/2007 2:11:42 PM Propeety on a Peneficial Interest int Borrower, if allo OF the Property ir itfs sold'or tansferred (or [Fa beneficial tnt zpest in Borrower is cold or texisforred an Borrower ‘s not tala person) witeee cece Sate ae es Option, require immediate Payment in fult of wf] sums secured by thisSecurity Instrument, However, 10d shall not be exezeisec! by IF exerolse is probilof thi Sosa eee opti by Lender ii 415 prohibited by fecleral law as of the dataIf Lender exoveises this option, Lendor shatt sive Borower notice oF seceletation, The notice shalt ride Cid of tofess than 30 days from the date the notice a delivered or roailed within which Borrower aust pay ‘a aa eoael by thisSeourlly Insirumest. If Borrower file to psy these anne lor to tha expiration af this period, Lenuler may invoke any reinedicsi Borcawus,18, Rocrower’s Right to Reinstate. IF Borrower meets eestain conditi 8: Borrower stall have the right to have Coligations aecuied hereby shail remain filly effective az ‘fan accoleration hal occurred, Howsver, this right tx relnsate shen‘Mot apply in the ease of atooteeation under paragraph 177 ty (koown«9 the “Loan Servicer") that collects wonthiy payr also may ba one‘SF more changes of the Loan Servicer unrelated to Services, Borrower will be:‘alven written notice ofthe change in spcordaiice wih Peregraph 14 above and applicable law, The notice will sale the names antOf the new Lota Servicer and the addices to Tho notice will also contain any otbcrinformation requited by applicable law,20. i Substances. Borrowor shall not cause or + OF releate of anyHazardous Substancas on or in the Property. Borrower shall ing thoProperty that Is jn violation of wy Rnvicom we, oFstorage on the Property of small quantities of Substances thal are generally rocognizod to be approptiste 10 normal‘residential usec and to muletenance of ihe Property.Borrower stall promptly give Lender written notice Of any inveatipation, claim, demand, lawmault or other action by anySoverimental of regulatory agency or privale party involving the Property and any Eazardous Substance or Environmental LawOF whlch Boteower has actual knowledge. If Narrower loam, or is hatin by any xoverntiental or regulatory authority, thator gout ex olbor remedstion of any Hazardous Substance affecting tho Property s necessary, Blormower shall peompuly takeall necessary remedtal actions in accordance with Enviconmental Law.‘As used in (his paragraph 20, “Huzardons Substances” are. those substances defitied a5 toxic or hazenious eubstances byBavironmenta] Law and the following substances: gesoline, Kerosene, other ftanntable or toxic petrolcum producs, toxieherbicides, volaite solvents, ma‘ariats containing asbestos or formaldehyde, and radioactive stateriake. As used inthis paragraph 20, “Snyironmenta] Law" tucans fedceal Laws and Laws of the jurisdiction where the Property is located thatrelate to bealt, safety or envisonsental protection,NON-UNIFORM COVENANTS. orrowsr and Lender further covenant and agree as follows:21, wy Kesnedles, Lender shall give native to Barcavrer pclor to acceleration following Borcawge's breachof any covenant or agremuent in this Security Instrument (hat wee Priov (a acecserntion under paragraph 17 unless‘seplicabte law provides alherwise), The notice shall specify: (a) the default; (b) the action required (a cure the default;{e) a date, wot Kes than Mt days from the date ihe notice is given to Borrower, by which the default must b¢ cured; and(2) that fallare to cuze the default ou er bore the date specified in thee notice may result in acceleration of the sucisProceeding theuan-existence Of default op uny other defense of Borrower (o acecleration and Foreelosara, bt the default is wok cured ontot before the date specified in the notice, Lender, ot its option, may require iamediate payment i Tull of all eisseruwed ny this Security Ingtruinent withoaw furtier dentand and may Fereehage ye Sccurity Instrument by judlelalroccediug. Lender shall be entitled ta collect uff expanses inturred its pursuing the ronedias provided ln this paragraph21, lueluding, but not usted 40, costs of tide evidexne,S100) ann free Hh MORT 9s-e408 ety aeDate: 12/27/2007 2:11:42 PM From: 19375869630 Page: 13/29 1onh vo.‘22, Release, Upon payment of all sums seciwedl by this Security Instrument, Leader shal discharge (his Securityit a Advanocs to Protect Security. This Seoity actniment tal acre ee \wipald balance of advances made by Leades,with respect to the Propecty, foc the paymeat of taxes” ‘ssstunanty, insta prcmluins and cos’ incuetd forte presenting of24. Riders to this Security Iastrunweot, If one o¢ more riders ae executed by Borrower arut reooned togather wlth thisSeonsity Instrument, the cover-ats and agreeincats of each such rides shall be incorporated into and shall Amend cad suipstunent(Cheek pica ecient otis SeuryIsrusant a if th ies) were aps ofthis Seoul latemses,[Check applicable box(es)Adjustable Rate Rider Condominjum Rider 1-4 Family RidesGraduated Payment Rider Planned Unit Devslopment Rider Biweekly Payment RiterBalloon Rider Rate Improvement Rider Second Home Ridar {VoA. Rider Guher(s) [specify]BY SIGNING BELOW, Borrower sccepis and agrees 10 the term and sovenants contained in thie Security Lestruatéat anddn any rider{s) exccited by Borrower and recocided with it.Witnesses; (Seal)irbirgl =ebbc Miafm — $00 |hea pec i(Seal) (Beal) jBorrower sbeerseerSTATE OF O10, Greene County ssiOnthls 16th dayof August 1995 Notary Fublic in and for sald Cotmaty1 « batore me, 9and Stele, personally appeared Stanley J. Martin and Kathleon ‘A, Martin» lhe individual(s) who executed the Tocegoing instrursent and acksowledged thatthey did examine and read tho sarze and did sign the Posegoing inrtrumant, and that the anum iy Hhoir‘fee act and deed,INY SMILERIOP, Ihave hereunto sot ty hand and official seal, 4eli) te, C L EL,“ Sth nmy i RIS ©, COMM, NoteryAaiie1 aicauatapors 25 2, 1000 Prepared by: Parenount Norkgage Companyiy Canaan aSOUT Lanne Ce SITLL BONY, IIS Bn sone aso MORT Sa-B408 bie bas: tfFrom: 19375869630 Page: 14/29 Date: 12/27/2007 2:11:42 PMEXHIBIT D « aieG30804 Ler) aaa Et“Ot A GliInvestor No. ecenpe gtao PAE 2b Fa,TaD, Ko. “OH TCOME Ry co. i‘Whea Revorded Mail Ter RE CoRDRGy Sto p‘CHASE MANHATTAN KORTGACE ‘CORPORATION H‘ATTN: LOAN OPERATIONS I1500 NORTH 19TH STREET,LA 21201CORPORATION ASSIG:. T OF MORTGAGE FOR VALUE RECEIVED, — paRaoun® Mo2TanoN GOUPAHY INC. AM OTO CORPORATION‘grants, and trace to;CHASE MANHATTAN HORTOAGR GORFORATION, A DELAWARE CORPORATION4915 INDEPENDENOE PARKWAY. TRHPA, FLORIDA 33634-7540Ul beneficial interest undar that certain MORTGAGE, datedAvCUST 16, 1995 exceed bysSTANLEY J. HARTIN AND KATHLEEN A. MARTIN, HUSBAND AND WIPEoan1nd recorded concurrently bervwith 185 Docttment NoS2E)3 sia Bact PS -9 aon E079f Official Reconds in tho office of the Conaty Reserdar of yowegoacny Couaty, State ofOHIOSTTUATE JH THE COUNTY OF MONTGOMERY, IR TH STATE OF OHIO AND IN THECHTY OF DAYTON AND BEING LOT NUMBERED FIFTY FIVE THOUSAND SEVEN HUNDREDPIFTY GIX (55756) OF THE CONSECUTIVE NUMBERS OF LOTS ON THE REVISED PLOF THE CIty oF DAYTON, cUZO.Parcel 1,D, No, R72-249-10-45PROPERTY ADDRESS! 3641 GLEVELAND AVENUE.PARTOR, OBTO, 45:20MORTGAGE AMOUNT: 57,750.00FREANEAEOED NONETE2OHBABIOOIBSIEL762 waar re tareMART «—oS-B4ND AD 1Date: 12/27/2007 2:11:43 PMFrom: 19375869630 Page: 15/29 ‘ aInvestor No.=‘Percel No.Tax LD. No, ee TS See aHerat oR ih sete oF totes therein deacibed or refra toy te roney dus and to become d ‘ereon withinterest, and all sighls acceved of to accrum under ssid MORTCAOE, i itiNe Dated; 8/16/95 | By:Hi . Don F. Whiteif — Executive Vice-Prasidente ¥ Be teat SEISet tloa-2 Reino tdsi Sutecl bio County oF Greene5Go 8/16/95 befete me, the uedartignod, x Notary Pile in and for sald State, personaly appearedt Don F. White, txecutive Vice-PresidentPersonally knows to me (oF proved to me on the basis of setisfactory vidace) to be Ube pecsan{s) who execuled tho‘withia instrimestas Executive Vice-President 00 behalf oFthe corporation therein named, and acknowledgadt {0 mo that such corporation exostind the withis iastriaent parmact(to its bylaws or a zesojuthon of its board of ditectoez.WITNESS my hand and offici: sal,SeraThis dastrowent prupared by: Faramvunt Borcgage Gompatiy, tac,ree HIPICMAN, Sokeoy Putte5 a of hla 7My Coumtssian Biplecs MAY 24, 1998 WO7a2 way PagetMORT 95-2489 Aas tirRant.goy Count;ase -92-Bh3as5. 514.08 01709702 Bara? From: 19375869630 Page: 16/29 Date: 12/27/2007 2:11:43 PMPreparedEXHIBIT E uty noage neceraer FaFiched HSL Loan No. 1354618-4Poot No,Loan No.THIS DOCUMENT WAS PREPARED BYAND WHEN RECORDED MAIL TO:HOMESIDE LENDING, INC.ATIN: E. BOLATETE - MR-RA ASSIGNMENT OF MORTGAGE/DEED OF TRUSTFor good and valuable consideration, the sufficiency of which is hereby acknowledged, the undersigned,CHASE MANHATTAN MORTGAGE CORPORATION F/K/A CHASE HOME MORTGAGE CORPORATIONwhose address is 3415 VISION DRIVE COLUMBUS, OHIO 43219 (Assignor)By these presents does convey. grant, bareain, sell, assinn, transfer and set over to:MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR HOMESIDE LENDING, INC. ITSSUCCESSORS AND ASSIGNSwhose address is P.O. BOX 2026 / 4318 MILLER RD. FLINT, MICHIGAN 48501-2026 {Assignee}the described Mortgage/Deed of Trust, together with the cenain Note(s) described therein with all interest, all liens and any rights due‘or to become due thereon,Said Mortgage/Deed of Trust is recorded tn the State of OHIO, County of MONTGOMERY.’Official Records on: 08/24/1995 Original Loan Amount: $87,750.00 Mortgage Date: 08/16/1995Original Mortgagor: STANLEY J MARTIN, KATHLEEN A MARTINTrustee:Instr #: 950803 Doc #: Cort #: Book: 95-2408 Page: E07Lepal: See Attached Legal Description Mortgagee: PARAMOUNT. MORTGAGE COMPANY INC,Section: Lot: Block:Property/Tax ID # R72-149-10-48 Group # @ District #: 0Address: 3611 CLEVELAND AVENUE, DAYTON, OH 45410Date: 5/2001 CHASE MANHATTAN MORTGAGE, CORPORATION F/AK/A CHASE HOME MORTGAGEee‘EANGERINE HARRISON. oe a te PEEPSTATE of FLORIDA. COUNTY of DUVALThe foregoing instrument was acknowledged before me this (Sth day of. April, 2001 by JANET E. KOENIG, VICE PRESIDENT ofCHASE MANHATTAN MORTGAGE CORPORATION F/K/A CHASE HOME MORTGAGE CORPORATION, 3415 VISIONDRIVE, COLUMBUS, GHIO 43219, 4 NEW J 'Y Corporation, on behalf of the corporation. He/She is Personally known tome anya € %GAIL L. BROOKS, Notary PublieState of FLORIDA at Large, My Commission Expires: Cc ‘é Gait L B-ooksY COMMISSION # CC767225 EXPIP:Novembe: 1, 2002BONDED THEY TROW FAIN INSURANCE INC. MIN: 1000109+0006825979 MBRS PHONE: 1-888-679-63771122172001 GWEN AUSTIN Batch # 2 SulelIp: CHSOdt MORT @2-0252 EQSOOFrom: 19375869630 Page: 17/29Date: 12/27/2007 2:11:43 PMBEING LOT NUMBERED FIFTY FIVE THOUSAND SEVEN HUNDRED FIFTY SIX (353756) OF THE CONSECUTIVE NUMBERS OF LOTS ONDAYTON, OHIO.PARCEL LD. Na, R72-(49-10-451121/2001 GWEN AUSTINTHE REVISED PLAT OF THE CITY OFMORT O2-ae53 EQ7Si EXHIBIT F} ‘LseR Now: 200758641Loan No.: StaitePIDN No.; R72-14910-0045F ASSIGNMENT OF MORTGAGE KNOW ALL MEN BY THESE PRESENTS, that the undersigned,Mortgage Electronic Registration Systems, Inc., whose address isP.O. Box 7814, Ocala, FL 34478-7814, does hereby sell, assign,transfer and set over unto Washington Mutual Bank, whose addressis 7255 Baymeadows Way, Jacksonville, FL 32256, a certain mortgagefrom Stanley J. Martin and Kathleen A. Martin, husband and wife toParamount Mortgage Company Inc., dated August 16, 1995, recordedAugust 24, 1995, in Volume 95-2408, Page E07, in the office of theMontgomery County Recorder, together with the Promissory Notesecured thereby and referred to therein; and all sums of money dueand to become due thereon, and secured by the following realestate:Situate in the County of Montgomery, in the State ofOhio and in the City of Dayton and being Lot NumberedFifty-Five Thousand Seven Hundred Fifty Six (55756) ofthe Consecutive Numbers of Lots on the revised plat ofthe City of Dayton, Ohio.PROPERTY ADDRESS:3611 CLEVELAND AVENUEDAYTON, OH 45410i IN WITNESS WHEREOF, Mortgage Electronic RegistrationSystems, Inc. has set its hand this= day of __tremler, 2007.Mortgage ElectronicRegistratign Systems, Inc.Recorder48247AyM -08-002183 0002 Willis &. Blackshear$28.00 01/10/08 08Montgomery Countyii easieriSTATE OF AG) eaeeecees* ss.i ;” couNTY OF _Teakolaon f fal| § beforetate of + personally appeared, NF, )=opersonally knownto me (or proved té\me on the basis of satisfactory evidence) toeae be the person(s) whose name(s) is/are subscribed to the within: instrument and acknowledged to me that he/she/they executed thesame in his/her/their authorized capacity(ies), and that byhis/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executedthe instrument. fo WITNESS my hand and official seal.A ~- Notary PublicMy Commission expires: Yoo eo2 SHOUA MOUA iNOTARY PUBLIC-MINNESOTA #MY COMMISSION ’EXPIRES JAN. 31,2012 This instrument was prepared by:LERNER, SAMPSON & ROTHFUSSA Legal Professional AssociationP.O. Box 5480Cincinnati, OH 45201-5480
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Case Number: 24SMCV02338 Hearing Date: August 8, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 PACIFIC PANORAMA, LLC, Plaintiff, v. KWALA, LLC, et al., Defendants. Case No.: 24SMCV02338 Hearing Date: August 8, 2024 [TENTATIVE] ORDER RE: DEFENDANT KWALA, LLCS MOTION TO EXPUNGE LIS PENDENS BACKGROUND This case arises from protracted litigation relating to the foreclosure of a residential property located at 17000 W Sunset Blvd in Pacific Palisades (the Property). The relevant facts are as follows. Gregg Corlyn (Corlyn) acquired title to the Property pursuant to a Grant Deed recorded on June 29, 2001 (the Grant Deed). (Request for Judicial Notice (RJN) No. 1; Dicecca Decl. ¶ 5, Exh. 1.) In 2007, Corlyn borrowed and promised to repay the amount of $3,697,500 pursuant to an Adjustable Rate Note dated April 6, 2007 (the Note) secured by a Deed of Trust dated April 6, 2007 (the 1st Deed of Trust) against the Property. (RJN Nos. 3-5; Dicecca Decl. ¶ 6, Exh. 2; Compl. ¶ 14.a, Exh. 3.) He also entered into a revolving credit agreement secured by a Deed of Trust and Assignment of Rents dated April 6, 2007 (the 2nd Deed of Trust). (RJN No. 9; Compl. ¶ 14.b, Exh. 4.) The Deeds of Trust have the same legal description as the Grant Deed. (RJN Nos. 6 & 9.) In 2009, the 1st Deed of Trust was assigned to Wells Fargo Bank, National Association as Trustee for the Certificate holders of Structured Asset Mortgage Investments II Inc. Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007-AR-4 (WF Bank). (RJN No. 10; Dicecca Decl. ¶ 7, Exh. 3; Compl. ¶ 15.) Corlyn quitclaimed title of the Property to Plaintiff Pacific Panorama LLC on October 10, 2008 by way of a Quitclaim Deed that sets forth the same exact legal description as the Grant Deed. (RJN No. 11; Dicecca Decl. ¶ 8, Exh. 4; Compl. ¶ 11, Exh. 1.) The Quitclaim Deed identifies that title was quitclaimed to Pacific as a GIFT. The Quitclaim Deed did not include any provision for the assumption of the Note or 1st Deed of Trust by Pacific. (RJN No. 12.) Two days after recording the Quitclaim Deed, on January 29, 2010, Pacific filed its first Chapter 11 bankruptcy in Nevada, with Case No. BK-S-10-11464-MKN, to delay WF Banks foreclosure. In that case, the court granted WF Banks motion for relief from the automatic stay. The court eventually dismissed the case on April 19, 2012. (RJN No. 13; Dicecca Decl. ¶ 35, Exh. 30 (Memorandum Decision, at p. 3).) On June 12, 2014, a notice of default and then, on October 3, 2014, a notice of trustees sale, each identifying only Corlyn as the borrower, were recorded against the Property based on the 1st Deed of Trust. (RJN Nos. 14-15; Dicecca Decl. ¶¶ 9-10, Exhs. 5-6.) On October 17, 2014, Corlyn filed a lawsuit against WF Bank and its loan servicer Select Portfolio Servicing, Inc. (SPS), with Case No. SC123281, to enjoin the foreclosure. (RJN No. 16; Dicecca Decl. ¶ 11, Exh. 7.) Corlyns complaint asserted claims based on the borrower-protection statutes and alleged he submitted several loan modification applications between February 2013 and July 2014, but they were repeatedly denied or ignored by WF Bank and SPS. (RJN No. 17; Dicecca Decl. ¶ 11, Exh. 7 (Corlyns 2014 Compl. ¶¶ 17-50).) Then, on June 28, 2019, Corlyn filed another lawsuit against WF Bank and SPS, with Case No. 19SMCV01180, to again enjoin the foreclosure, in which he asserted: Gregg Corlyn was and is an individual and the borrower on all liens on the property and Mr. Corlyn has standing to sue because, though he does not live at the subject property, he is still the borrower on the loan. (RJN Nos. 18-19; Dicecca Decl. ¶ 12, Exh. 8 (Corlyns FAC ¶¶ 1 & 36).) After another notice of default and sale were published, Pacific filed its second Chapter 11 bankruptcy on June 28, 2021, with Case No. 2:21-bk-15239, to again stop the foreclosure. The U.S. Trustee moved to dismiss the case for bad faith, as evidenced by the filing on the eve of a foreclosure sale and Pacific having only one asset and no income. The court granted the lenders motion for relief from stay and the U.S. Trustees motion to dismiss, with a 180-day bar to refiling, finding the case was filed in bad faith just to delay the secured creditor from enforcing its rights. (RJN Nos. 21-23; Dicecca Decl. ¶¶ 13-14 & 35, Exhs. 9-10 & 30 (Memorandum Decision, at p. 5).) On April 4, 2022, the 1st and 2nd Deeds of Trust were assigned to Defendant KWALA LLC (Kwala). (RJN Nos. 24-26; Dicecca Decl. ¶¶ 15-16, Exhs. 11-12; Compl. ¶ 16, Exh. 7.) Five months later, in September 2022, Plaintiff and Corlyn sought Kwalas consent for Pacific to assume Corlyns loans. (Doss Decl. ¶¶ 4-5.) Kwala denied the request. (Doss Decl. ¶ 5, Exh. A.) Thus, Corlyn remained the sole borrower on the loans. On October 3, 2022, a notice of default (NOD) was recorded against the Property based on the 1st Deed of Trust. (RJN No. 28; Dicecca Decl. ¶ 18, Exh. 14; Compl. ¶ 18, Exh. 9 (NOD).) On December 2, 2022, Pacific filed an action against Kwala entitled Pacific Panorama, LLC v. KWALA, LLC et al., with Case No. 22STCV37755 (the Prior Action), seeking to enjoin foreclosure, despite the fact that Plaintiff had never assumed the loan. (RJN No. 29; Dicecca Decl. ¶¶ 19-20, Exhs. 15-16.) That complaint asserted the same legal description for the Property as set forth in the Grant Deed and Quitclaim Deed. (RJN No. 30; Dicecca Decl. ¶ 20, Exh. 16.) In response to a demurrer, Pacific filed a first amended complaint (FAC) alleging the NOD falsely represents that as of September 30, 2022 there were unpaid payments due Defendants and each of them in the sum of $208,394.55, when in fact that representation was materially false and misleading and was burdened with claims which were not due and not supported. (RJN No. 32; Dicecca Decl. ¶ 22, Exh. 18; see Compl. ¶ 25.b, at 10:6-9.) On or about January 4, 2023, Kwala caused its foreclosure trustee California TD Specialists to record a notice of trustees sale and scheduled the sale for January 31, 2023. (RJN No. 31; Dicecca Decl. ¶ 21, Exh. 17.) Following an ex parte application, the court issued a temporary restraining order (TRO) on January 23, 2023 enjoining the sale and setting an OSC Re Preliminary Injunction. On March 29, 2023, the preliminary injunction hearing went forward, and on April 17, 2023, the court denied Pacifics request for preliminary injunction and dissolved the TRO, finding that Pacific had no standing to challenge the amounts owed under the 1st Deed of Trust and that Kwalas accounting as to the default amount owed was otherwise accurate. (RJN No. 33; Dicecca Decl. ¶ 24, Exh. 19 (Order Denying Request for Preliminary Injunction, 04-17-23).) Kwala filed a motion for judgment on the pleadings arguing that Pacific lacked standing to assert any cause of action in the FAC because it was not the borrower on the loans and had not assumed the loans in any writing approved by the lenders. (Dicecca Decl. ¶ 23.) On April 25, 2023, the court granted Kwalas motion for judgment on the pleadings on Pacifics FAC with leave to amend, finding that Pacific has no standing to assert any of the contractual or statutory claims in the First Amended Complaint (FAC) because Pacific is not a borrower under the two security interests held by Kwala. (RJN Nos. 36-37; Dicecca Decl. ¶ 25, Exh. 20 (04-25-23 Minute Order, p. 1).) On May 12, 2023, Pacific filed its second amended complaint (SAC) and Kwala filed another demurrer challenging standing. (RJN Nos. 39-40; Dicecca Decl. ¶¶ 19 & 26, Exh. 15.) Pacific did not file an opposition, and instead filed a notice of withdrawal of the SAC and then dismissed the action on June 8, 2023. (RJN Nos. 41-42; Dicecca Decl. ¶ 26, Exhs. 21-22.) The very next day after the court dissolved the TRO, on April 18, 2023, Pacific filed its third Chapter 11 bankruptcy, with Case No. 23-11599-mkn, seeking to stop the foreclosure. (RJN No. 38; Dicecca Decl. ¶¶ 27-28, Exhs. 23-24.) Then, the day after the voluntary dismissal of the Prior Action, on June 9, 2024, Pacific removed the Prior Action to the bankruptcy court. (RJN No. 43; Dicecca Decl. ¶¶ 19 & 27, Exhs. 15 (Civil Docket, at p. 1) & 23 (BK Docket, Doc 35 at p. 5).) Kwala filed a motion for relief from stay and a motion to remand the Prior Action back to the state court, which were both granted. (RJN Nos. 44-48; Dicecca Decl. ¶¶ 29-31, Exhs. 25-27.) In its ruling on the motions, the bankruptcy court found that Pacific engaged in quintessential forum shopping to avoid the adverse rulings from the Prior Action and that Pacific would be unable to effect a reorganization with Kwalas loans because its not their debt and because they have no money. (RJN No. 46; Dicecca Decl. ¶ 29, Exh. 25 (Transcript at pp. 59-60 & 62-64, italics added).) The bankruptcy courts order granted Kwala leave to foreclose on the Property and to enforce the security under the First Deed of Trust. (RJN No. 47; Dicecca Decl. ¶ 30, Exh. 26.) Kwalas trustee then scheduled the foreclosure sale for October 17, 2023. (Dicecca Decl. ¶ 32). The day before the sale, however, a notice of a new bankruptcy case filed by 17K West Sunset, LLC (17K West), with Case No. 23-15559-GS, was served on Kwalas counsel. (RJN No. 51; Dicecca Decl. ¶¶ 32 & 34, Exh. 29.) 17K West was formed after Kwala was granted relief from stay and was assigned the junior deeds of trust before filing bankruptcy. (RJN Nos. 49-50; Dicecca Decl. ¶ 33, Exh. 28.) In response, Kwala moved for in rem bar relief in the Pacific bankruptcy and to dismiss the 17K West bankruptcy. Both motions were granted, and the bankruptcies were dismissed. (RJN Nos. 52-58; Dicecca Decl. ¶¶ 35-39, Exh. 30-34.) In granting in rem bar relief, the court found that Pacific and 17K West engaged in a scheme to hinder, delay or defraud Kwala and thwart its efforts to foreclose. (RJN No. 53; Dicecca Decl. ¶ 35, Exh. 30 (Memorandum Decision, at p. 16).) After this ruling, the foreclosure sale was scheduled for March 27, 2024 pursuant to a newly-issued Notice of Trustees Sale. (RJN No. 59; Dicecca Decl. ¶ 40, Exh. 35.) On March 4, 2024, Pacific filed an appeal in the bankruptcy and, on March 18, 2024, filed an emergency motion to stay the foreclosure sale, which was denied on March 19, 2024. (RJN Nos. 60-61; Dicecca Decl. ¶¶ 41-42, Exh. 36-37.) The next day, on March 20, 2024, Pacific filed another emergency motion for stay in the district court, and on March 26, 2024, the district court denied that motion and instructed the foreclosure sale that is set for tomorrow may proceed. (RJN No. 62; Lin Decl. ¶ 5, Exh. B (Transcript at p. 19:18-19).) In its ruling, the court noted: It is, Ill say, troubling to this Court that this proceeding is being held here today after what appears to be over 12 years of abuse of process and an attempt to manipulate court proceedings. (RJN No. 63; Lin Decl. ¶ 5, Exh. B (Transcript at p. 18:17-25).) The foreclosure sale took place the next day on March 27, 2024. The opening bid amount was $5,403,655.84. Kwala made a full credit bid for that amount plus an additional $1,174,577.24 for the highest bid of $6,578,233.08. No one for Pacific appeared at the sale or bid. No one other than Kwala bid at the sale. Kwala was the winning bidder. (RJN No. 64; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 43, Exh. 38.) After the sale, the trustee received notices of intent to bid pursuant to Civil Code § 2924m. Pacific did not submit a notice. Ultimately, no bids were received, and the sale became final on May 13, 2024. (Snyder Decl. ¶ 8.) A Trustees Deed Upon Sale was recorded on May 20, 2024 in favor of Kwala. (RJN No. 68; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 44, Exh. 39.) On April 17, 2024, 17K West filed a civil action with Case No. 24SMCV01839, which alleged that Kwala had rejected its tender of all amounts due and owing under the 1st Deed of Trust. On April 30, 2024, the court denied 17K Wests ex parte application for a TRO to enjoin the recording of the Trustees Deed Upon Sale, and on May 14, 2024, 17K West dismissed the action. (RJN Nos. 65-67; Dicecca Decl. ¶¶ 46-49, Exhs. 41-44.) Two days later, on May 16, 2024, Pacific filed the present action, asserting wrongful foreclosure and related causes of action all based on the same alleged statutory violations as the Prior Action. Pacific also recorded a lis pendens on the Property. This hearing is on Kwalas motion to expunge lis pendens. Kwala argues Pacific cannot establish the probable validity of any claim in the Complaint because it lacks standing. Kwala also seeks attorneys fees and costs in the amount of $35,810. There was no opposition filed as of the posting of this tentative ruling. LEGAL STANDARD Any party¿or a non-party having an interest in the property affected by a notice of lis pendens¿may move for expungement¿any time after the lis pendens is recorded.¿ (Code Civ. Proc., § 405.30.)¿ A lis pendens must be removed for being improper on account of the claimant not being able to establish by a preponderance of the evidence the probable validity of the real property claim.¿ (Code Civ. Proc., §§ 405.31, 405.32;¿Ziello v. Superior Court¿(1995) 36 Cal.App.4th¿321, 331-32; Urez Corp. v. Superior Court¿(1987) 190 Cal.App.3d 1141, 1149.)¿¿¿ When questioning the evidentiary merit of a claim, the claimant who filed the lis pendens bears the burden of proof.¿ (Code Civ. Proc., § 405.30.)¿ Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate the probable validity of the real property claim by a preponderance of the evidence.¿ (Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; see also Code Civ. Proc., §405.30, et seq.)¿ Only admissible evidence is permitted on the motion.¿ (Burger v. Superior Court¿(1984) 151 Cal.App.3d 1013, 1019.)¿¿ Code Civ. Proc. § 405.38 provides [t]he court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circ*mstances make the imposition of attorneys fees and costs unjust.¿ (Code Civ. Proc., § 405.38.)¿ REQUEST FOR JUDICIAL NOTICE Kwala requests judicial notice of recorded instruments, facts that can be adduced from the recorded instruments, and orders, findings of fact and conclusions of law in court records. There is no opposition to the request for judicial notice. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(d), 452(h), and 453. DISCUSSION Defendants argue that Pacifics first claim for violation of Cal. Bus. & Prof. Code §§ 10130 and 10131.1 fails because WF Bank is expressly exempt from the licensing requirements of the statute. The Court agrees. Bus. & Prof. Code § 10130 provides that It is unlawful for any person to engage in the business of . . . a real estate broker . . . within this state without first obtaining a real estate license from the department . . . . Section 10131.1(a) defines real estate broker to include a person in the business of . . . selling to, or exchanging with the public, . . . promissory notes secured directly or collaterally by liens on real property. The Complaint alleges Corylns loan was sold in violation of those provisions because WF Bank did not have a real estate broker license. (Compl. ¶¶ 16 & 25.a). As a result, the Complaint alleges the assignment should be declared void pursuant to Finance Code § 22750(b). (Compl. ¶ 25.a). Under Bus. & Prof. Code § 10133.1(a)(1), WF Bank is expressly exempt from the licensing requirements of Section 10130. (Bus. & Prof. Code § 10133.1(a) (Subdivisions (d) and (e) of Section 10131 . . . do not apply to any of the following: (1) Any person or employee thereof doing business under any law of this state . . . relating to banks.) & § 10006 (Person includes corporation, company or firm.); see also Arzamedi v. Wells Fargo Bank, N.A., (E.D. Cal. March 8, 2018) 2018 WL 1210978, at *4 (Federal banks are explicitly excluded from the definition of real estate licensee . . . . (citing Section 10133.1(a)(1))). And if it was not exempt, then the claim would be preempted by federal law, which governs banks rights to sell mortgages. (See 12 U.S.C. § 371(a) (Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate.); 12 C.F.R. § 34.4(a) (A national bank may make real estate loans under 12 U.S.C. § 371 and § 34.3 without regard to state law limitations concerning: (1) Licensing . . . (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.); see also Akopyan v. Wells Fargo Home Mortg., Inc. (2013) 215 Cal. App. 4th 120, 151-158 (state law claims against WF Bank based on violations of Bus. & Prof. Code were preempted by the National Bank Act, 12 U.S.C. § 21 et seq.).) Moreover, no authority supports that the sale or assignment is void because it was made by a non-licensed party in violation of Section 10130. Rather, the consequences for violating Section 10130 simply subject the non-licensed party to fines or citations (Sections 10139 & 10080.9) and bars that party from recovering compensation from the transaction (Section 10136). While the Complaint alleges the assignment should be declared void under Finance Code § 22750(b), no violation of the Finance Code is alleged based on the assignment, nor could there be since WF Bank is expressly exempt from its provisions pursuant to Finance Code § 22050(a). In relevant part, § 22050(a) states this division [Finance Code §§ 22000-22780.1] does not apply to any person doing business under¿any law of any state . . . relating to banks. Aside from the claim that the assignment is void, the Complaints eight causes of action are all based on alleged statutory violations relating to the Note and 1st Deed of Trust. However, as the court in the Prior Action repeatedly ruled, Plaintiff lacks standing to assert those claims because it is not the borrower and never assumed the loan in any writing approved by the lender, as required by both the 1st Deed of Trust and the statute of frauds (Civ. Code §§ 1624(a)(6) & 2922). (RJN Nos. 3-5; Doss Decl. ¶ 5, Exh. A; see also Green v. Cent. Mortg. Co. (N.D. Cal. Sept. 2, 2015) 2015 WL 5157479, at *5 ([A] successor in interest does not assume a borrowers obligations simply upon obtaining title to property when the deed of trust requires an assumption be made in writing and approved by the lender.); Anolik v. Bank of Am. Loans (E.D. Cal. Apr. 21, 2011) 2011 WL 1549291, at *1, *3 (property owner lacked standing as he was not the borrower on the loan and had not assumed the obligations under the loan in writing and with lenders consent, as required by the Deed of Trust).) As such, Pacific will not be able to establish the probable validity of any of its claims. (See Green, 2015 WL 5157479, at *4 (Courts thus have dismissed foreclosure-based claimslike Ms. Greens negligent misrepresentation, fraud, wrongful foreclosure, UCL, cancellation of deed, and declaratory relief claimsby persons who were not parties to mortgage loans.).) Moreover, even if Pacific has standing, its claims must otherwise fail based on the tender rule. In a wrongful foreclosure action, the plaintiff must plead and prove that it tendered the amount of the secured indebtedness or was excused from tendering. (Chavez v. Indymac Mortg. Servs. (2013) 219 Cal. App. 4th 1052, 1062.) [T]he rationale behind the tender rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower]. (Turner v. Seterus, Inc. (2018) 27 Cal. App. 5th 516, 528.) While no tender is required as to a challenge that an assignment is void, the rule applies to challenges based on other alleged irregularities, as here. (See Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919, 929 n.4.) The Complaint seeks an equitable declaration that the foreclosure sale is void as a result of a number of alleged irregularities beyond the claim that the alleged assignment is void, and as to each of those claims, the tender rule applies. (Compl. ¶ 25.b-f). But the Complaint does not allege that Pacific tendered the total indebtedness or that it was excused from doing so based on a recognized exception to the rule. Pacific never tendered, or offered to tender, any amount to Kwala prior to the sale. (Dicecca Decl. ¶ 50). Thus, even assuming Pacific has standing, its claims otherwise fail based on the tender rule. The Court next considers Kwalas request for attorneys fees. The award of attorneys fees is mandatory when a party prevails on a motion to expunge lis pendens unless the court finds that the other party acted with substantial justification or that other circ*mstances make the imposition of attorneys fees and costs unjust.¿ (Code Civ. Proc. § 405.38.) The Court concludes there is no substantial justification for Pacifics opposition, and indeed, Pacific has manipulated court proceedings to initially forestall foreclosure of the Property and now to set aside the assignment of the Property. As to the amount of fees expended, the Court starts with the lodestar which is the reasonable hourly rate multiplied by reasonable hours spent. Here, counsel has been practicing for 17 years, and his hourly rate of $650 is comparable to rates of attorneys with similar experience in the prevailing legal market. Counsel has also spent 45 hours in researching the relevant authority, reviewing the filings and rulings from all of the prior lawsuits and bankruptcies involving these parties, preparing and assembling the relevant documents, and drafting this motion, the request for judicial notice, and the corresponding declarations. Further, counsel projected he would spend an additional 10 hours to review the opposition, prepare a reply and prepare for the hearing on the motion. However, there is no opposition filed, and so the Court reduces the number of hours Kwala expects to spend by 8 hours, leaving 2 hours to prepare for and attend the hearing. Court concludes these hours are reasonable given the protracted nature of the litigation between the parties and the extensive record it produced. Kwala has also paid a $60 filing fee for this motion. Accordingly, in total, the Court awards $34,510. CONCLUSION Based on the foregoing, the Court GRANTS Defendant Kwala LLCs motion to expunge lis pendens and for attorneys fees. Plaintiff is directed to pay attorneys fees in the amount of $34,510 to Kwala within 30 days of this Order. IT IS SO ORDERED. DATED: August 8, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
Phillips vs. Murphy, et al.
Aug 05, 2024 |22CV-0201197
PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
FONGKOK ZHOU ET AL VS. MERCY HOUSING CALIFORNIA ET AL
Aug 05, 2024 |CGC20584533
Matter on the Discovery Calendar for Monday, August 5, 2024, Line 1, PLAINTIFFS FONGKOK ZHOU and SHAO ZHOU's Motion To Compel Compliance With Demand Inspection And For Monetary Sanctions. Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Hearing required regarding status of prior discovery motions. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 525 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 525. Any party who contests a tentative ruling must send an email to davididaho14@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(JPT)
Ruling
WHITRED HOLDINGS,LLC, et al. vs. THE MCCONNELL FOUNDATION
Aug 06, 2024 |CVCV21-0197415
WHITRED HOLDINGS, LLC ET AL. VS. THE MCCONNELL FOUNDATIONCase Number: CVCV21-0197415This matter was placed on calendar due to a letter received from Plaintiffs’ counsel on July 30, 2024, in whichcounsel raised concerns regarding the trial schedule. The Court intends to discuss these concerns with the partiesto come to a mutually agreeable resolution of the schedule. An appearance is necessary on today’s calendar.
Ruling
HERNANDEZ vs KRUSE
Aug 05, 2024 |CVRI2401776
Motion to Compel Arbitration byCVRI2401776 HERNANDEZ vs KRUSE ROBERT A. KRUSE, MICHELLE Y.KRUSETentative Ruling:Plaintiff Martin Hernandez, Jr. (buyer) alleges he entered into a written contract topurchase real property from Defendants Robert and Michelle Krause (sellers) in June 2023.Defendant Hani Gabriel, of Defendant Gabriel Realty Group, Inc., represented the Kruses as theirreal estate broker in the transaction subject to this matter. (Sellers' Agents.) Defendant Rita ShawBroker & Associates, Inc., is a licensed real estate brokerage and is the responsible broker forDefendant Anna Marie Nigg. Rita Shaw Broker & Associates, Inc. Anna Marie Nigg representedPlaintiff as his real estate broker in the transaction subject to this matter. (Buyer’s agents.)Buyer alleges Seller failed to execute documents necessary to close Escrow and/or failedto provide timely vacant possession of the Property to Hernandez and wrongfully refused toexecute escrow instructions cancelling the transaction and either 1) returning all of Hernandez’s$600,000 deposit or, alternatively, 2) returning all of Hernandez’ $600,000 deposit in excess of3% of the purchase price. In addition and/or alternatively, on information and belief, Sellers’ agentwrongfully withheld information regarding Sellers’ ability to close Escrow and prevented Escrowfrom closing or being cancelled with a refund of the deposit to Buyer. In addition and/oralternatively, on information and belief, Buyer’s agent wrongfully failed to procure, demand, orobtain timely close of Escrow or return of the Deposit.The complaint, filed 3/29/24, asserts: (1) breach of written contract (against sellers); (2)negligence (against all Defendants); (3) gross negligence (against buyer’s agents); and (4) breachof fiduciary duty (against buyer’s agents).Sellers move to compel arbitration pursuant to ¶31 of the sales agreement. They pointout the claims alleged in the complaint as to them are subject to arbitration.Buyer opposes the motion contending there is no supporting evidence to support theMotion including the executed sales agreement. He also argues that because the agents are notparties to the sales agreement, there is a possibility of conflicting rulings and the court may denyarbitration.In reply, Sellers acknowledge the failure to attach the sales agreement based oninadvertence and/or mistake and provide an authenticated copy of the agreement. They furtherassert there is no possibility of inconsistent rulings.AnalysisI. StandardUpon the petition/motion of a party to an agreement to arbitrate, the court must grant apetition to compel arbitration unless it finds: no written agreement to arbitrate exists; the right tocompel arbitration has been waived; grounds exist for revocation of the agreement; or litigation ispending that may render the arbitration unnecessary or create conflicting rulings on commonissues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity tocompel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co.(1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of thewritten agreement and the arbitration clause verbatim, or such provisions must be attached andincorporated by reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 88Cal.App.4th 215, 218-19.)“In ruling on a petition to compel arbitration, the trial court may consider evidence onfactual issues relating to the threshold issue of arbitrability . . . . Parties may submit declarationswhen factual issues are tendered with a motion to compel arbitration.” (Engineers & ArchitectsAssn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) In the summaryproceedings on a motion to compel arbitration, “the trial court sits as a trier of fact, weighing allthe affidavits, declarations, and other documentary evidence, as well as oral testimony receivedat the court’s discretion, to reach a final determination.” (Engalla v. Permanente Medical Group,Inc. (1997) 15 Cal.4th 951, 972.) 1There is no dispute that the California Residential Purchase Agreement and Joint EscrowInstructions has an arbitration provision. (Krause Dec. ¶ 6, Ex. 1.) It applies to the “parties,”which is defined as buyer and seller—and does not include brokers and agents. (Exhibit 1. at¶1.) Thus, it would only apply to Buyer and Sellers. While Buyer opposed the Motion becauseSellers did not attach a fully executed copy of the Purchase Agreement, with the Reply, Sellershave remedied the inadvertent mistake and provided a verified copy of the Purchase Agreement.Because Buyer does not dispute signing the Purchase Agreement and/or that it applies to theentirety of the claims alleged against the Sellers, unless Buyer raises additional arguments at thehearing, the recommendation is to consider the Purchase Agreement provided with Reply andfind a valid arbitration agreement exists between Buyer and Sellers that covers the claims alleged.The only other argument raised by Buyer is that the Defendant agents are not required toarbitrate and thus the possibility of conflicting rulings exists. CCP § 1281.2(c) provides inpertinent part that the court may deny arbitration if: “A party to the arbitration agreement is also aparty to a pending court action or special proceeding with a third party, arising out of the sametransaction or series of related transactions and there is a possibility of conflicting rulings on acommon issue of law or fact.” The right to arbitration, created by their agreement, “may have toyield if there is an issue of law or fact common to the arbitration and a pending action orproceeding with a third party and there is a possibility of conflicting rulings thereon.” (MercuryIns. Group v. Sup.Ct. (Wooster) (1998) 19 Cal.4th 332, 348.)However, as stated in Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263:When the FAA applies, it preempts any contrary state law and is bindingon state as well as federal courts. [citations.] The FAA requires courts to1There is a strong public policy in favor of arbitration agreements.” (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741.)“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including apresumption in favor of arbitrability and a requirement that an arbitration agreement must be enforced on the basis ofstate law standards that apply to contracts in general.” (Engalla, supra, 15 Cal.4th 951, 971–972.) Given the policyfavoring arbitration, “doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration.”(Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323; see alsoMoncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.)enforce arbitration provisions. (9 U.S.C., § 2.) It does not authorize courtsto stay arbitration pending resolution of litigation, or to refuse to enforce avalid arbitration provision to avoid duplicative proceedings or conflictingrulings. (9 U.S.C. § 4 [the court shall make an order directing the parties toproceed to arbitration].) The misfortune of deciding related disputes indifferent forums occurs because the FAA “requires piecemeal resolutionwhen necessary to give effect to an arbitration agreement.” (Moses H.Cone Hospital v. Mercury Constr. (1983) 460 U.S. 1, 20, 103 S.Ct. 927, 74L.Ed.2d 765.)Here, the arbitration agreement expressly states that arbitration is pursuant to the FAAand expressly states the CAA does not apply notwithstanding any language to the contrary.Accordingly, CCP § 1281.2 does not apply here. CCP §1281.4 requires a stay of proceedingswhile a matter is pending in arbitration. The court grants the motion and issues a stay as to theremaining defendants.
Ruling
ALBA NIDIA VILLAREAL, ET AL. VS WALNUT GREEK, LLC
Aug 09, 2024 |24STCV11194
Case Number: 24STCV11194 Hearing Date: August 9, 2024 Dept: 32 ALBA NIDIA VILLAREAL, et al., Plaintiffs, v. WALNUT CREEK, LLC, Defendant. Case No.: 24STCV11194 Hearing Date: August 9, 2024 [TENTATIVE] order RE: defendant motion to strike BACKGROUND On May 3, 2024, Plaintiffs filed this action against Defendant Walnut Creek, LLC alleging habitability issues. On July 11, 2024, Defendant filed the instant motion to strike punitive damages from the complaint. Plaintiffs filed their opposition on July 24, 2024. LEGAL STANDARD Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) MEET AND CONFER Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Shapiro Decl.) DISCUSSION In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code, § 3294, subd. (a).) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Id., subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (Id., subd. (c)(2).) Fraud is intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Id., subd. (c)(3).) In the habitability context, allegations that a landlord knew of defective conditions and knowingly failed to take corrective action sufficiently support punitive damages. (See Penner v. Falk (1984) 153 Cal.App.3d 858, 867; Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) Here, Plaintiffs allege extensive defects with the subject premises, such as faulty electrics, inadequate heating, dysfunctional plumbing, pest infestations, deteriorating walls, and lead hazards. (See Compl. ¶¶ 19, 29.) Despite notice from Plaintiffs and the health department, Defendant has failed to correct the deficiencies. (Id., ¶¶ 26-27.) Instead, Defendant has retaliated against Plaintiffs by entering Plaintiffs units for extended periods without making any repairs. (Ibid.) Defendant exploited Plaintiffs status as low-income, unsophisticated tenants with little knowledge of the law or access to resources. (Id., ¶ 32.) These facts go beyond the knowing failure to repair that has been held sufficient for punitive damages. The allegations demonstrate conscious disregard for Plaintiffs rights and safety and conduct imposing unjust hardship. Therefore, the complaint in this case adequately pleads a basis for punitive damages. CONCLUSION Defendants motion to strike is DENIED.
Ruling
NISHAN ABEYRATNE VS DOVENMUEHLE MORTGAGE, INC., A DELAWARE CORPORATION, ET AL.
Aug 09, 2024 |24AHCV00009
Case Number: 24AHCV00009 Hearing Date: August 9, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT NISHAN ABEYRATNE, Plaintiff(s), vs. DOVENMUEHLE MORTGAGE, INC., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24AHCV00009 [TENTATIVE] ORDER RE: DEFENDANTS NEXBANK AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.S DEMURRER TO COMPLAINT Dept. 3 8:30 a.m. August 9, 2024 Plaintiff Nishan Abeyratne (Plaintiff) filed this action on January 2, 2024. Defendants Nexbank and Mortgage Electronic Registration Systems, Inc. (collectively, Defendants) filed a demurrer to the original complaint on March 13, 2024. On June 28, 2024, the Court sustained co-defendant Dovenmuehle Mortgage, Inc.s demurrer with leave to amend. On July 29, 2024, Plaintiff filed the operative First Amended Complaint. Accordingly, Defendants demurrer is taken off calendar as MOOT. Moving party to give notice. Dated this 9th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
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