Preview
iling # 95758668 E-Filed 09/16/2019 01:50:41 PM IN THE CIRCUIT COURT OF TIN AND FOR MIAMI-DADECASE NO:BANK NATIONAL TRSTEE FOR AMERIQUEST3 -BACKETSERTES 2004~- MORTGAGE SECURYPASS-THROUGH CERTRS, IPICAT! Plaintiff,VS.WAYNE P. BLAGROVE A/K/A WAYNEBLAGROVE; UNKNOWN SPOUSE OF WAYNE P.BLAGROVE A/K/A WAYNE BLAGROVE,Defendant(s}. iVERIFIED COMPLAINT FOR FORECLOSURE OF MORTCAGEPlaintiff, Deutsche Bank National Trust Company, as Trustee for Ameriqueat Mortgage Secusitesinc., Asset-Backed Pass-Through Certificates, Series 2004-R5 (hereinafter referred io as “Plaintifi?}, suasthe Defendants, Wayne P. Blagrove a/k/a Wayne Blagrove and Unknown Spouse af Wayne ®. Blagrove a/k/a Wayne Blagrove, (hereinafter referred to as “Defendants”, and alleges: COL (ORTGAGE FORECLOSURELR This is an action to foreclose a mortgage on real property in Miami-Dade County, Florida.2. Court has jurisdiction over the subject matter. 3. ‘On or about April 10, 2004, Wayne P, Blagrove a/k/a Wayne Blagrove executed and delivered apromissory note (hereinafter referred to as the “Note”) in favor of Ameriquest Mortgage Company, in theprincipal sum of $167,006.00. Acopy of the Lost Note Affidavit in compliance with Florida Statute Section702.015(5) is attached hereto as "Exhibit A".4. Qn or about April 10, 2604, Wayne P. Blagrove a/k/a Wayne Blagrove executed and delivered a mortgage (hereinafter referred to as “Mortgage”) securing payment of the Note ta Ameriquest MortgageCompany. The Mortgage was recorded on May 3, 2004, in Official Record Book 22259, at Page 4074, ofPage | of 5File #: 19-400083the Public Records of Miami-Dade County, Florida, and encumbered the property described in theMortgage then owned by and in possession of the mortgagor. A copy of the Mortgage is attached hereto as“Exhibit BY.3. Said Mortgage was assigned to Dewische Bank National Trust Company, as Trustee for,Ameriquest Morigage Securities Inc. Asset-Backed Pass-Through Certificates, Series 2004-R5, under thePooling and Servicing Agreement dated June 1, 2004, by virtue of an Assignment of Mortgage recorded onFebruary 17, 2009, in Official Records Book 26754, at Page 3120, of the Publ: Records of Miami-DadeCounty, Florida, a copy of which is stiached hereto as “Exhibit C*.6. Said Mortgage was modified by virtue of a Loan Modification Agreement recorded Qetober 9,2515, in Official Record Book 29809, at Page 3554, of the Public Records of Miami-Dade County, Florida,& copy of which is attached hereto and iIncorpomted herein as “Exbibit B".7. Said Mortgage was modified by virtue of a Loan Modification Agreement effective January {,2018, a copy of which is aitached hereto and incorporated herein as "Exhibit BE",8. ‘The Mortgage of Piai Jf is a Hen superior in dignity to any prior or subsequent right, title, claim, lien or interest arising out of mortgagor(s) or the mortgagons)' predecessorts) in interest,9. Platiff is not in possession of the Nate but is entitled to enforce it,18, PHH Mortgage Corporation ("PHH") is the loan servicer for this particular loan, Plaintiff hasdelegated PHH Mortgage Corporation successor by merger to Ocwen Loan Servicing, LLC the authorityto service the loan on its behalf pursuant to a Pooling and Servicing Agreement. A copy of the Pooling andServicing Agreement is being attached hereto as "Exhibit F". ue Defendant(s) have defauked under the Note, Mortgage and Loan Modifivation(s) by failing to paypayment dus as of December 1, 2018, and all subsequent payments. The foan remains in a continucus state of default,12. Phintiff declares the full amount payable under the Note and Mortgage to be due, except to theextent any part of that amount is or would be subject to a statute of limitations defense.Page 2 of SFile #: 19-40008313. Defendant(s) owe Plaintiff $178,018.43, which inchades a deferred principal balance in the amountof $35,312.87, that is due and owing on principal on the Note and Mortgage, plus interest from and afterNovember 1, 2018, and title search expenses for ascertaining necessary parties to this action, pursuant tothe documents attached, except for those defendants who have been discharged in bankruptcy.14, inorder to protect its security, Plaintiff may have advanced and paid Ad Valorem Taxes, premiumson Insurance required by the Mortgage and other necessary costs or may be required to make such advancesduring the pendency of this action, Any such sum so paid will be duc and owing to Plaintiff,18. ‘The property is now owned by Defendant(s} Wayne P. Blagrove a/k/a Wayne Blagrove, and therecord legal title to said mortgaged property is now vested in Defendant(s} Wayne P. Blagrove a/k/a WayneBlagrove.16. Ail conditions precedent to the acceleration of this Mortgage Note and foreclosure of the Mortgagehave ocearred,» Plaintiff is Vy, Plaintiff is obligated to pay Plintiff's attorneys a reasonable fee for their serventitled to recover its attorneys’ fees pursuant to the express terras of the Note and Mortgage.48. Plaintiff alleges that the claims of the remaining Defendants are secondary, junior, inferior andsubject to the prior claim of Pizintiff.19, Defendant, Unknown Spouse of Wayne P. Blagrove a/k/a Wayne Blagrove, may have or claim aninterest in the property thatis the subject ofthis foreclosure action by virtue of homestead rights, possessionor any right of redernption, or rnay otherwise claim an interest in the property, but any such right, title orinterest in and to the real property is junior sabordinate, and inferior to the lien of the Plaintiff's Mortgage.26. Any and all unknown parties claiming by, through, under, and against the herein named individualdefendant(s} who are not known to be dead or alive, whether said unknown parties may claim an interestas spouses, heirs, devisees, grantees, or other claimants are joined as defendants herein. The claims of saiddefendants are subordinate, junior, and inferior to the interest of Plaintiff.Page 3 of §File #: 19-400083WHEREFORE, Plaintiff demands judgment forscinsing the Morgage, for costs (and, when applicable, for attorneys’ fees), and, if the proceeds of the sale are insuffic fPs claim, a deficiency judgment. Request that subject ic any applicable statute of limi Ss, that the Court ascertain: the ammount due to Pisintiff for principal and interest on the Mortgage and Note and for late charges,abstracting, iaxes, expenses and costs, including attorney's fees, plus interest thereon; that if the sums duePisintiff under the Mortgage and Note are not paid immediately, the Court forectose the Mortgage and theClerk of the Court sell the Property securing the indeltedness uy satisfy the Plaintiff's Mortgage lien inaccardance with the provisions of Florida Stanstes §45.031 (2G11)}; that the rights, and Interest of anyDefendant, or any party claiming by, through, under or against any Defendant named herein or hereinafierPe ga made a Defendant be forever barred and forectosed; that the Court app a receiver of the Property andof the rents, issues, income and profits thereof, or in the akernative, order sequestration of rents, issues,income and profits pursuant t Florida Statutes §697.07 (2006), and that the Court retain jurisdiction of thsaction to make any and all further orders and judgments as-msy be neceseary and proper, including theissuance of a writ of possession and the entry of a deficiency judgment decree, when and if such deficiency IE appear proper, if borrower{s) has not been discharged in bankruptcy.COUNT UL RERSTARLISHMENT OF PROMISSORY NOTEis an action to reestablish a Promissory Note pursuant to Section 71.011 and 673.3091, Florida 22. Plaintiif reaffirms and realleges paragraphs } through 20 hereinabove as if set forth more fullyherein below.23. Plaintiff knows of'no parties other than those named in this Complaint who are interested for or against reestablishment of the subject Note. ‘ed, Plaintiff was the holder of the Original Note s 24, When loss of possession occ: red by the Mortgage.28. Plaintiff did not transfer the Note or lose possession of the Note as the result ofa law fid seizure.Page 4 1G-40008326. Plaintiff cannot reas: ly obtain possession of the Note because the instrument was lost,27. ‘The Plaintiff will agree to entry of a Final Judgment of Foreclosure wherein it will be required toindemnify and hold harmless Defendant(s), Wayne P. Blagrove a/k/a Wayne Blagrove, from any loss theymay incur by reason of a claim by another person to enforce the fost Note.WHEREFORE, Plaintiff prays this Court reestablish said lost instrument so that the copy filedherein will have the effect of the original document. Plaintiff further prays that the court will grant suchother relief as may be just and equitable in the circ*mstances.FLA.RCI PB LLsle) VERIFICATIONUnder penalty of perjury, [declare that { have read the foregoing, and the facts alleged therein are trueand correct to the best of my knowledge and belief.Executed on this ae@dpdsy of _dkgltin thi.» 2019, geDeutsche Bank Nagias Trustee for Amer. Agset-Backedficates, Series 2004-R5RE: Borrower: Wayne P. Blaprove afiva Wayne BlagroveAddress: 419 NW 41 Street, Miami, FL 33127File #: 19-400083DESIGNATION OF PRIMARY E-MAIL ADDRESSTn accordance with Fla. R. Jud. Admin, 2.516(b}(1 (a), the undersigned attorney for the Plaintiff hereby designates FLpleadings@mowc-law.com as their primary e-mail address. , Weisberg & Conway, LLCAustrafian Avenue, Suite 1006Beach, FL 3340161) 73-1400 / Bax: ($61) 713-1401Primary Renal: FLpleadings@mwc-law.com5Ye * gFlorida Bar No. 195121Page 5 of $File #: 19-400083Exhibit “A”LOST NOTE AFFIDAVITSTATE OF FLORIDACOUNTY OF PALM BEACHBEFORE me, personally appeared Oswald Powell who, being of lawful age and afterbeing fiest duly sworn, deposes and says:J.T am an Authorized Signer of Ocwen Loan Servicing, LLC ("Qowen™), servicer forDeutsche Bank National Trust Company, as Trustee for Ameriquest Morigage Securities Inc.,Asset-Backed Pass-Through Certificates, Series 2004-25, Plaintiff in this action. In this capsecityihave personal knowledge of the facts and matiers stated herein based on my review of thebusiness records defined below, and I am authorized to execute this Affidavit on behalf ofOcwen.2, The iaformation contained in this affidavit is based on my personal knowledge from myreview of the information contained in the records maintained by Gewen. The records referencedor summarized herein constitute records or data compilations (“the Records”) of transactionsCthe Transactions”) relating tm the servicing of the mortgage loan at issue in this foreclosureaction, The Records were made at or near the indicated time based on information transmittedby, or from 2 person with knowledge of the Transactions. The Records are kept in the course ofQewen’s regularly conducted business activity. In the course of my regular job duties I haveaccess to and am familiar with these Records, and I reviewed and relied upon these Records inexecuting this Affidavit,3. This Lost Note Affidavit is made in connection with a promissory note (“Note”), datedApril 10, 2004, in which Wayne P Blagrove (“Borrower”) promised to pay to AmeriquestMortgage Company the sum of $167,000.00 (the “Loan”). A true and correct copy af the Noteis attached hereto as Exhibit A.4, According to the Records attached hereto as Exhibit B, Plaintiff was in possession of theNotes when loss of possession occurred.5. According ts the Reeords, on October 25, 2017, a diligent search for the original Notewas conducted. Afler conducting the sesrch, the original Note could not be located and Plaintiff”cannot reasonably obtain possession of the original Note.6. The original Note has been inadvertently lost, misplaced, or destroyed, or is in thewrongful possession of an unknown person or a person thet cannot be found or is not amenableio service of process.9. The original Note is not in the custody and control of the Plaintiff,8. According fo the Records, the Note has not been paid, satisfied, pledged, transferred orlawdully seized.9, Plaintiff hereby agrees to indermnify Borrowers against loss that might occur by reasonof a clair by another person to enforce or foreclose under the Mote.or penalties jury e h goingstated in it are true and correct. é2Dated: OCT 2 6 207 Signature: ftecd. —Print Name: Oswald Powell‘Title: Authorized SignerOcwen Loan Servicing, LLC, as servicer forDeutsche Bank Nati ‘rust Cormpany, as Trastee forAmeriquest Mortgage Securities Inc., Asset-Backed Pays-Through Certificates, Series 2004-R5 STATE OF FLORIDACOUNTY OF PALM BEACHThis record was signed or attested before me this BE day of October, 2017, by Oswald Powell,who is personally known to me. ,PodeReet tee =e Racers Publ Suste of FlorinSignstare of ‘Notary Publ aes i, Kells NesbitKettia Nesbitt mee f ERE ninExhibit AADJUSTABLE RATE NOTE@UBOR index - Rate Cape}THE STATE QOOCKRENTARY TAN DUE Gh THIS NOTE HAS BEEN PAID AND THE PROPER STAMBS HaVE REEIEAPRESS TD THE MOR TROSE naveTS BUTE CONTAINS PROVISIONS ALLOWING FOR CHANGES NN MY INTEREST RATE AND BY MONTHLY.SAYMENT, THES NOTE LOAMTS THE AMOUNT MY INTEREST RATE GAN CHANGE AT ANY ONS TIME AND THEMARISUM BATE MUST PAV. THES LOAN HAS & PREPAYMENT PENALTY PROVISION, Aged %, 2008 crarge cA{tek ent fiat)Ax0 NW 43 Seat, Miami, Fk. HETPropecty Adem}4, BORROWE PROSOSE TO BAY "fe rua 3 aes ha hae raced pramioe to pay A AEROSOLES this acount ie exited “helnaipaly, plas.imonst, 16 te oder nfite Lender, The Lorie Is Aemertquast Rertpage Company| uncomtana teat the Liveter omy trmafer this Mia The Lersioror anyone wha takes this Diode by tensor and sabe iseniBiad & recubor peysineeds under this Nee ie oatled the: Noms Maken?3, RTERESTrennet a8 hey Ciemed on uonall seinediad antl the As gerqee of panokal has heen f*ck, | WS pay intend aoready SE ARR. This intecost rote | wil pay may Gunge be acroicance wih Sect 4 ofthe Mets, TheSeneost rate moguleed Sy this Sostion tang Section ¢ of thy Note is tha rate Cll pay bolts before zed after any dafautSaecrani is Section 1465) Of he Now,4% BAYMENTS{Ai Time and Place of Paymentsll pay prioeipal and inferest by making payments every marth,fis make my monthly payntants or the fist dsy of cach mam bagknning on June 4, 2004 4 wi make thesepaymarts every month undil { Rave pall of af tee principad are interest and any olin: taayes desmnber helow tatJenay swe wrsiertive Note, by monetly mayments wet be apstion ts Interest betore prkvoipal. tL on May 4, 2034 ,3 882 Go aenounts undey this Note, twill gry those smoustet Ire Rill art thot date, which ig calles! the munity date.Soil: make my payments 26, SBS City Paskaay What, Salle 100, Crange, CA S2B6Eco at a different place if wexilced by the Note Halder,{8} Amount of My initint Monty Paymentsach of my inkist monthly payments wil ba Inthe amourd aS. $4,022.83. Thke amuunt may changes,fC} Monihty Payment ChangesChanges In my moithiy payroem will ceftent changes in the umpakt princioal oF my loos ant tn thdost nay. The Note Nobid «itdaterming my new emarest sale and he changes omount of my monthty payee. inaecemanoe wat Section 2 of thts Note,4, INTEREST RAYE AND MONTHLY PAYMENT GHARGES:{Ay Change Datoscate wil pay may change an ia firt day of May, 2kHG . are on that day every obth monthihersatter, Bach dite on which my interest rae could change fs cated a "Change bate”{8} The tndox"deat with ter Gist Change Civte, my tact vate vil Oe bwed ean Index ‘The “inde G the avenge afIeferbane stores mates for Siemon BLS. calterctendnineted depesit 4A the Landon smagkat CLUBORS, asesstiine i The Yat Seat tomal The agit recoat index Soe Syafawle op of the dae 48 dove Helcen theChanges Date ls caihes tha “Currwet tnideu.”Mat cay pede 3 Xitom tho iden 18 ng kaagee avaable, the Mae Haider wa chouse a new inden that Is wazed upon spurparstan infeenstors THA Bate Hater aa give ma noe ofthis ctales,$0) Galculatan at Changes‘eekirs each Changin Dum, he tite Roblet wit iluubtin my Row habiiet cite Ry adiing sie posentage pain] ¢ S002 te} lo the Curent fivlax, The Ning Colder yall te moved the reaudt of this adtban ta the nearest ceeolginsa is GAICON EL IEG). Sekact to the Emits shed # Savion AY below, this mumiad gontust wil be rey sow‘tered! tote unl us next Chaoge Oat, The Hate okie wil Ben daWwatne the nivouel if the emsihlp paymanéRat Bee be cuOseat ts sopay tha wnpakt seinetpel shat taco aenected Bowe wi te Change Date in Nidan sheMaturky Oats at ey naw joterast rate in aubstzetialy equal paysnents, The raswt of this catcubion wi\ be the nawSteak C2 EXSY 3wow LIBtots, ARMAND GSOZP RMctroenenatmee® asFes sera a § as bal Ak pay oe rot hang Date sit rst be geester HSI 8.280 8 98 teas thaRSGO%, Thorman, 3 seers rae il paar ta INCENSE or GOCE ah sey Onple Tecage Dale by moreLOSES) Sm Do sate of heen) ae Eo paying fy the preosding a Tanta,Brats SeeRy waren te Taper Se prominy than 12.200 of igse thon &.2081 Efartive Gaps ai Changes« Diy tate snares Fie Ht Bpoome wRREdN On tach Charge Dake # wil pay the omowd OF shy sew monlypayne. bareetag se the Test my fopmels date afer the Charge Kate anit the ememant xf ny marcthey:peymene changes aga.4F} Motice of Changer,‘Fhe Rote tinier wii deliverad Bk a 3 patios of any sienge In BY Inidieat rate and the ammount a my monshtypaymnat deine tt alloction date si aay cstge, The antioe wil inctude lntaeation aquired by Bw fe for ght snoGnd aiso the 886 and telephone number of 8 person whe wil answar any question F nay have cegamting tre notlea. 8, PRERAYMENT PRAALEGELemay spay a! or say pect of the pinapal balance af this Hols in acouslance with ihe tome of Os Sachin, A“prepayment” % omy ammount knat | pay In excess of sty reguisly scheduled payments cf prindpal art inteseot that‘the Lender wit apply 1a reduce the oustonding orncipal balance on dis Mote in gocantance wih this Section,{4} Bropayment Made Three {3.00} prar{s) After the thete af this tateadit net ive to Day & prepayment charge BI casks & prepsymert on the Theee (3.00) year anniversary of thes datethis Note & oneruted, 27 8 aeiy tere18) Prepayment Mada Within Ths (3.06) yeurfa} of Bre Dabs of this NoteEwe pay Lonter 3 pepaymam charge Yin wy teeive (12) manth poled bekee ver fhme GLOQP years)aepeensny 9 the dale iis Noles axecatod, } gevpey skaee than LO oF the ovigies prnopal Galanos af thie Note,‘The pronayment chage wit be eb (6) monty: inaresd, at the sate Uurs In elect on this Hate, an dhe eran! Iaexcess of 20% ofthe ongieal peintipal bsionoe tak | prepay witin suck 8 meunih period,{63 Apsaication of Fasias| agren that when | indicata in weling that Fam making ® prepayment, the Lender sha apply funds # meosives frstes fay Sy propaymand change and next ih accielsnes with the order of apptcstion of payments set sth in Saction2 ofthe Seasity insiunect.{D} Manthty PaymentsWi make 2 prepayment of ae amount fess than the amount veeded to completely repay aA arnounts dive under thisDate and Secuflty instrument, my fequlaty sehedited payers of principet and interest will sot change 33 2084% LOAN CHARGESif 2 haw, which angdiag t this joan and whicd sets maximum losn charges, i finally Itarpreted ya thet the iMerest or‘other ion chores ocacinn os be awlected ih eonnsrtion ath tide toa eens Us prcrmten Ami, them saySec He he SN reper ene cay Fe ee 6 Se He peemitad Bet and (haySorts simety cetfened Pomp me which axoceded purhesd dette ot be refunded ip me, The Note Mokise maychenne to make this nmiard by makeing the prinmgal { nee onder this inte ar by making a direct poptrent to me. 13refund redunns thy pencigal, the reduction will be treated as & paral prepayment,7. BORROWER'S FAILURE TO PAY AS REQUIREDAh} Late Charges for Qvardue Saymertithe Note Holder has nut eecehied tae Bet Smound AF xey mast: paymons dy thes ered at fillern calendar Hays.fer Ge date KS don, 1 vet pay a fate charge ts the Pate Heder. “The aru of the ctueye wil be 6.060% af myovals paynent of psncipat ard Enerest. 1 will pay thi: ine charge orompdy but ony once an each tate© Sige es ag ig Fa seu af esch manihly payment on ine date K fe due, 1 will be tn datouk,2 fam in dofan, the Note Halder may send me a wrtion malice taling me mat 11 do not pay tha sveniueaengund by 3 osetain date, the Note Hokie may caging me ia gary Inmudiately the f*ck amount of principal whichLRA nat bao past ad 26 the knorert that b owe on that amcurt, The dete rust he at least 50 days afer theSgtegn which the nobos is delrored or mailed ts me,{OD} Ro Walser by date Holderet 9 te tant SAR, the ol Heda de tra oe heroeny ta Ral osSeenribed abaee, the Notes Roker wil oi howe the dptee so so Fl am in totaus at 3 beter time,45} Faymass of fase Holder's Cents and Exponses,Hf tho Bisia Hedtor has roqutnd! ene th pay immediately in tal as degedbedt above, the Nols Maker wit have theright to be pad back by me Sor ait of ts vosts ai eapences in enfercing this Note ta the exctact not peobitited byapplicable low, Those exporses inciuds, for example, makonaoks wilomoye toes,& GIVING OF NOTICES‘Unies, anyilcable tow requires 9 dilferer mothod, airy notice that must be ghen fe me under thes Nore wat begies by aeienring iar by mabing & by Bat chess mad kx me at the Property Addinss chow ot 2k 3 affocentares # thn nate Maidan a Ponce of my dense setesa.Any atiee thorl must he giver 16 the Note Holder under this Note wit be piven by mailing X hy frst case mak i theNote Holier wt tho address xtated tn Sattion S{A} above ar at 2 different address Ht am glen ratios of thetRunt addres,2888©& OBLIGATIONS OF PERSONS UNDER THs NOTE eeReiote Dige one pevsnn says kk Bate, Gen permed k Lbs ang gersonaly obfgated 10 hay i oF tha probesrode & thik Rowe, ihdhiiag Sus posites 1 pay she Ai amount eure. Any pean who & 8 guanceene, sorely HFsosternes af this Nike & shes oltigated to de these digs. Aety peraan who takes over diese altgntinns, lacudinythe obigitews Of 8 guarantor, surety of Ordomseral the Note, ky afin ebdguint i Keap sal of the promdaes made lnthix Now, Tis Note hnlas enay onkeron Be righes under ther Roig. agninst each nemun seliveiaay ay agaist a6 of$6 DoQeSie. THE mrEsAee tha shy see Maes May Se emioied bo pay al of the arenes camel under thik Hoke,) WAIVERSSai any ater panuin iain fas obtstines unar this Dios waive the sights of pregentmont ont nation wf diatinon,“Prensintnent mente the sige in roquire the tate Sukinr ia demand payment of aE dom, Mutlos of Oghonie”soars the ght os eatere the Nate Manlec to give gosta ke eter pense het nisunts ve Baws tt Baan pak,UNIFORRE SECURED NOTE“Wits hom is ¢ unitomclnsnarant wah Eran varkations in soasy furibstictions. th diidititn, t@ the placings gharte theo Pate Miabiee uecloc this Nox, 3 Mentgege Dead at Tria ar Geouily Dost Ghia Senwily Beoumeh duelwhe Laine Se this Rote, gasects the Kate fader stom gesaitis fasees which sight rases OF thy Ag Keep thespeneniies that | pao i Bs ake, That the Gecully mabasent desnttbes tow aid unter what vedios t may kesfadub et bs mite Brenedioge payment i (2 oF Se genase Powe under this Koka. Gomi af tule candions areResniibed 9% Ldaws:Franshee of tis Proney org Boawinks Ines ls Goryees, Wa or any nant Of the Pranenty ar any Inuyedt keiJs solt a7 tunsionad ior # kaneielal Intent 51 Benes Gnd ve fronaietted amt Bonawar fs not 8 natePerson] wAlmGs Ae LemWor’x peigy sh*tian winseM, Lender mmty, ak 2 Spon, Feutie atte SOPROALIG Ru OF 88Sees goes Ry Ms Senunty sonisanent. However Se option shalt net he exaust ny Lender # oxereiee foprobitinad by Pottaral oe op of the dole of hs Sacesiy testers, Launder ale shal mk seemhe this antion I {3Hanowes ceeses 2 be adhcalitest Wp lender intormateatt taguired by Lander io euaiunts te inieaded tnarokares 20-8ih tire Don wars being mde dy Pen Woodie; and {b} Landes caasonudtte iderminns that Lasders semxtty wil nokss ixipelrad by the son aesumrdion amt what the risk af 2 Srench of any ROWAN oF agroernend RAAB SeountyHnstnsiners wERpiakta fo Leetag‘To the mdtent pemvent ay axptindie law, Lundee way cage 8 reactnulte fae ax 9 contin af Lemte’sTENOR D De Ken teatETon. Lem way ake maube te bansioree @ ais an esteanptiut agroenmnt that f&ALORRIADAg 10 ieevlew and That Sitigglen the dacesdatets in Kody all the Heiner ord auetnerente minds § the Niteaad in tis Securty leew. Bosoreg? wih contin to De obliged undlar the Role and this Soucy astranentshor Lenten sstaken Baars it RBG.B Lander suarcizes the option t esquire Iminediate Roymend br ful, Lender hall give Bongwer natios ofavorteaiin. The notice weil provide a perand of not tos ign 30 days from ihe date the nofica bs dalivamd oFsoit WHER WHER thy Korrower smash Day aR sunkt necered by this Secuily tnstemait, NW Boercos fais ae reyshes aang feier Ib the expialkes of ths peed. Lender may gavoke any stomedina pramitted by the SeouttySroitimen intend Sather noice of decree on Barrer.On agreements, peamtuns of conmatiusnds te fond money, extend rest, ar farbour fear arlereing repayrtetOF a debt, Including pecmigas to satus, modify, sane oF walvy such dein, are nat enlomeatla, “This writtenapigement eontaing a1 the farms the Borawmsis} and the Lander tus agreed to. Any stihsecusnth ayreattare,betwnen us ragarding thie Note or the Instrument whieh secure this Note, mut be ii 2 olgned witing to befogaily anforceabie,WITNESS THE HAND{S) AND SEAL(S) CIF THE UNDERSIGNED,APB 8:78 AREExhibit BAMERIGUEST MORTGAGE SECURITIES INC,BepositorAMERIQUEST MORTGAGE COMPANYMaster ServicerandDEVISCHE BANK NATIONAL TRUST COMPANY‘Trustee POOLING AND SERVICING AGREEMENTDated as of Fane 1, 2004 Asset-Backed Pass-Through Certificates.Series 2004-RSETP NVLEGALHIS766.6] HOBNT-00K94 EADS BOAPe pe Aaton De ie oe Blagrase WeMe 2 | aaa 19 Ny aT.Se pete FO eh eeeeco? wR By eideherke Riva tibdker Gen By. SystemBias [bPeow Gan Witet Pescene B apn coom ineDaas: [77 P view es warningsacueftt sey foc [” tsp Stat ares Costacerad Bile Follow Ue fsanent> Fike released to BOREBARD REEDAER ESELIASIRL ITS:aMDRUTIAL FAS AMURICAS BES an QB/LL/2OGS vis £Date: September 15, 2009 KAHANE & ASSOCIATES PAAttn: KAHANE & ASSOCIATES, P.A.PETERS RD, SUITE 2006BLANPATION FL 33324Re: Lean Yo, esBorrower Last Name: W ? BlagroveProperty Address: @15 Nw 41 Street Miami FL 33127 Dear Six/Madam:American Home Mortgage Sexvicing, Inc. (ABMSI) in its capacity as servicergubsexviesy for various guner/investors hersby requests that ‘you commenceami prosecute 2 foreclosure action on the above-referenced loan, Inhomecthion with such forktinevge aenivities, the original docomentssatay below thereinafters Documents! gra being delivered to. you.éPromissory Note Lost) wade Heed of Trust MortgageBy signing this latter below where indicated, {a} you confirm receiptof the Documents, {b} you certify that you shall take all reazoneblemeasures to protect und presexve the Documents while they are in yourpossession, {a} you ag that you will institute and contisue todiligently prosecute foreclosure procendings as instructed by the ANMELLegal Actions Department, {@} you certify that neither you nor yourlaw £Zixw has any security interest in the Doswments and agree te waiveany interest you or your law firm may anguire therein ab any time,whether arising pursuant to law or otherwise and fe) you agree te returnuments to AMMST to the address stated below via overnight ored mail, within 30 days of the date they are no longer necessaryfox the prosecution of the matter, and (£} you ee that a copy of thislettar may he use oy ali purposes ag if it were the original. Once the foreclosure is complete, please send the original documentsback to Amexican Home Mortgage Servicing, Inc. F3-FC,4875 Selfork Road, Suite 230, Jacksonvil|i. By: Pox gure Start Date: 04-08-09 Please sign and Seload the Bailee Letter to Document Management{formally knowns ag New Tmage Express}.i hereby acknowledge receipt of the Documents as listed abeve andAGREE TO ACT AS BATLBER on the terms set forth shove, Signatixe LINE Wane and TieisMowand Witte, Docueeme Clerk' Kahane & Agsaciates, P.A.8201 Pewss Ra. o Snite 300), & oeMoroes be Ae, Plantation, FE 33324CFM BSNPhRoL EosDh tk sess Pa Tae aa)Reaver eared BeeWhor Reosnted Return To: avEY RIVER, CLERK BF CURTAMERICAN HOME MTO SERVICING TRAIT oepe Rawr FLoRTeACA RPC F300 Alt 49 North aPai Hacbor #3 ee CusteddbassBktective Wate: CLOTASSIGNMENT OF MORTGAGEFOR GOGH AND VALUABLE CONSIDERATION, the sulficivary af which is hereby sekrowledgot, heundersigned, CLY3 RESIDENTIAL LENDING FNC, AS ATp*rnEY-IN-EACT POR AMERIQUESTMORTGAGE COMPANY, WHOSE ADDRESS 18 1860i B. 6TH STREET , RANCHO CUCAMONGA, CAPATER, {OBSIGNORY, by thewe prexenis does roswey. grant. sel, aseign, Gonsler sod a over tha deserted‘omtgage togeaher withthe certain rotets} deseribed therein topmticr wich all Eniccean eocured Why. at Hana, enedany rights diss ur io becomes duc thereoa tc DEUTSCHE BANK NATIGNAL TRUST COMPANY, AS‘TAUSTES POR, AMERIQUEST MORTGAGE SECURITIES 0C, ASSET-BACKED PASS-THROUGHCERTUNCA TES, SERIES DMS.RS, UNDRA THe POOLING AND SERVICING AGREEMENT DATED’ JUNE 3, 2004, WHOSE ADGRESS 15 1961 EAST ST. ANDREW PLACE , SANEA ANA, CA 3E7ER-2936,TASSIGNERY Seid Morgege was made by WAYNE P. BLAUROVE ant wat resend in Official Records of the‘Chev of he Ciematt Court of BADE County, Fiatida, in Book 22259, Page 41704 or Insts € 2MROSITILEpun the psoperty sitnaved in said Stain and Conta a2 more fully descxited in said movigage. Barads BURWR09?CATE RESIDENTIAL LENDING INC, AG ATEORMEVANFACT FOR AMERIQUEST MORTGAGESUMPANY Uy neinCRYSTAL Vick riser‘Wien scdess int HOE E. GLH GTREEX, KANCRG CUCAMONGA, CA 91730 ‘Winneases: !on Z:‘us DHURATA DORGlei weFLORID,25 OF PINELLAS¥ CERTEPY thet ca this dey, before me, an officer duly authorized in the State and Counsy aforesaid 19take ackeowlodgement speared CRYSTAL MOORE, personaly known o me ma be the VICE PRASIDENT ofCUURESWDENTIAL, LENDING INC, 4S ATTORNEY-IN-PACT FOR AMERIQUEST MGRTOADECOMPANY, canporation, and that shafts scksooedied executing the saris Seedy and voluntarily onda sukooityuly vested in hisnace by said eorporction. WITNESS my hued ond official sal in the Canty and Stade festshereaais THIS BOT DAY OF JANUARY IN THE VEAR 2009BRYAN J. BLY Notery: ott‘My coramissinn axpiregst2002 Becement ¥ Sento TC ZIG AM. 19 Marth, Palm Hachor, BE 38683 GOOH4S-9E82 ieMiami-Dade Official Records - Priat Document Seay pa ae aPerm To: ‘HREOC esa 4 19205Beacae ant turn x. Ele set aeRemrkguent Montgage Commany — Prlarlty Title, Ine. aoF bn 7B.O, Bon 22! S741 Crangs Dive Htastoonae chutes eae ante ame, OA ALTLL Davie, Fi. agate “this donument was prepated ty: Amer tquect Mortgage Company Folie RanssaoBS, Univacadty pz., F922 Plantation, FL 33374 renter ings zest Fhe Zt Ber Recon DafMORTGAGE DRPLATIONSWords ascd fn oultipie sections of document ae delived Malow asd other wards are defined in Sections 3, V4, 13, 18, 20 ang 21, Censiz mice rewarding the page af wurde used in his Gavismest axe also providingia Section 36,(8) "Security Irstreavent™ meins this dactatent, which ie dad Roehl 16, 2004 .together with wi Bidor 1a tie sevuszentGi Baeraen eReyon F Blagreve, A dingle ManBurcu fr the mortgagor under this Secusity tnstrement,{Q) "Lanter" is Amarlguant Maxtgage Company FLAG Single Kaos ects MaaiF adie Shaw MRIFORM INSTRUMENTBSALEIZODS 8:50: 82a WRPage 308 sane 1a sagen dooce ENGI AE Book22256/Page4074 Page 1 of 28 fimww2 aniami-dadeclerk convofficialrecords/PrintDocument. YaoUfOmn... 10/26/2017https: www2.miami-dadeclerk com/officialrecerds/PrintDocument.aspx?QS= Yaol fz.Miami-Dade Official Records ~ Print Document Page 2 of 19Losier isa Compezetioncegnizel and casting walter the laws of DelavareLondes'y addons: is 1100 Toon and Gountzy Road, Waite 250 Orange, OA 92868Lender fs the mortgages under this Geourity Instrument,£2) “Note” moans the promissny ante signed by Borrower and dites April 18, sooThe Nove states shat Borrower qwes Lender Ons handred aixty-reven theweand and 06/100.DallasRES, S 267 920,85 } plus Setorent. Burraneer bas peomised to pay this debs in segaiar PestndicPogevente snd to pay she debs in fotl wat later tin May &, GEER(5) “Properey mena tha yeopany Wad ka described below under the heading “Transfer of Kiphte fo heBropenty.”Gy haan’ vixens the debe evidenced ey the Nove; phasIneact sny prgepusent charges and late chargerdue gader ths Note, aud ait suns dae unser ihe Security tantramenn, plas iment,(G} "Rlders™ means all Riders to this Sncvciey Instrument dhs ore executed by Beowen, The satlowingRiders we io be cxncuted by Hnetnwer fehtck bow at applicable}: CB) Adiuaubie Rate Rider [7] Condumnininm Biter mf Stoaed Poune RiderBalloon Rider ET] Blonsed Unk Development Rider tenV8 Rider Biweakly Payment Rider {95 “Applicable Law" means all ronuoiling spplicable tedees!, stale and acu! statutes, regulations,sedinancas ard acuivistsative rules aod arses {that have the eifecr of tas} ax well se all apgizahte fissi,non-appaaiahie judicial o;O "Commmalty asielation Duet, Fees, and Astenrments means af dacs, foes, assessments and otherchuges tha ae imposed on Fanawer of the Propety by 8 condominlum asteciation, wnnecwnersaKsoeiation ov similar atganizatiou.@) "Rlsctronic Funda Transfer” means any transfer of finds, other than a traazaciian originales by alec,deaf, a mila paper Sestuasenty wh 38 iuatedviseagh an electrons termina. etophonic incwamenkoxanigttes, OF ssagzctie ye x paste carder, ins! nalltusius 2 Houscil institetion to datit or oceetit anaecemh Sek tore 5, Be AS BOR ied ie, polnvoaste Casctor, auimenated teller monkisevasgactions, iano tied by fess, sad autconated clvarinpisouse traasters,(05; "Escrow Pema” means tha. ins SectioG) "Miscellaneous Pracesds" means any compensaion, xcitherann, awwd af damages, us proceeds auldby any third party (ober tion irawrance prncendy paid wader the covwrages described ts Section 5} tie: Ui}sana fd EBa ww—Q4/30/2084 9280528 Baok22259/Pages075 Page 2 of 26Miami-Dade Official Records - Print Docurnent Page 3 of 15dsmago-to. 2 Seavesiiow of Ne Props GD tosdenmation oe chee whiny af atl oe wy pit of teePampers, (88) cogeepance Xe Roy af sentavateionc wr he) amimprescaiatens 86 ar eindviowt as 3s, theveshan aaadidy econtinn o7 dhe frepesty. .» we SBtodgage Lomarence means iusereare protecting Lander apslont de sonpeyment af ae slefiett 03, IN; Raslovite Pupuernt™ ssas the segulasly acheriniod mount das for 8) peineipst and interop andar thsMois, ghis E83 any arnunence writer Gestigr 2 sof thie tiecariiy tastes,SES RESEA” means ter Real Ruraic Sattiorncat Prendnres Act (12 USL Saekisin 2H ct gen } wet dtstuaptesiending dogetation, Rogelsdg Xt CER, Fat S800), as they agit he anontod flows ime w ine,358 Soy a Monn! ve seatanior Iegisladien a3 cegohetion Wed gavesns the sume mbjest musa be uted (NESoencity teiinemans, "RESPA® enters 16 98) tapuinctisente woe sentrcsisas hes wee Soaponss in eager 3“foter ys sehntol ssantgage tose” vere I the Laan docs rot quality as a Zodaratiy rebated manstgage toda”woh BESTA.(F) "Saxeesias th Letenent of Baccoyer ones say sauty Yaak hae taba die to the Praporty, whelhsr oruot thas party hes ecsuawed Borteweee's ati gatiow, uniter the Mote anuilar Xie Seausity lastrumist:‘YRANMPSR OF RIGHTS (hv THE PROPERTY‘This Sorarity ustraracnt seewres to Lender? {i} the kegayaimé of the Lown, sat all mauewals, cxtezsionsmodifications of the Nots, and (8) ths perfassuance of Bonowery cowmans and egreemies undeSacusity Tasteusient and the Meee. Por this purpoze, Borrower docs hereby mortgage, grunt enk convey 10 Lendes, tke Sailnwing dasasdiad mmopety loosted in the County Direct Roronding Suet}of CIA DATE, Neen wf neon Suet:Legs? Uesertation Attached Herato and Hade 3 Part Nereet. GBAIGSROS4 F: Book22259/Paged076 Page 3 of 26 ‘Ozer... 10/26/2! Jectark.coni/officialrecords/PrintDocument.aspx’ jarni-d. https:/Awww.Miami-Dade Official Records - Print Document Page 4 of 15 Barcel D hews whick curmedly hag the address of219 NW AL Steest Saeed]Bima (igh Fonda 33327 lip Cone}PPrapesty Addsess"}:YOUTHER WITH ak the ingroremants sow oy hereafter wesind om the grugety, oad aff enseoneats,ROSCOE, BOS Bahco 26+ V8 ROR 9 Bond WE HN: Opec Adbzeglncumenis and editisiana sisall sinobasoveed ty ahs Secniigy taawrmeatnd. AH of thon fiers -vafeurad ts fis his Sequnity tenrontast as hese"ZORROWER COVEMANTS lat Regower iz bwrially wast of de evtate hereky auntewyed and baswhe right oy chayses, ara and Loaves she Toupery asd phat ths Popory is usosmlanbsered, exnegt forcseumbrnnm ef raced Rocowsr Wurm and aN dafooe generally the BNE to Ae Aeeperty agains attsialeey ed Aevs tects, swiciont xo sory casuraanances of tetas,THIS SECURITY FNSTRUDONT. combines snlfaem covenants for alloral neo sad wigenastirmeeeeeuside wich Umiind alas ay Jarkdictlen 4 ommatiinte a uniform senrily iostrammt omvesing realFerre FORM COVENANTS. Bamawer sd Lender covenant ated agree a follows:2. Payacene of Exinaleal, Joterasr, Larrow Weias, Prepapment Chung, and Laie Charge.Yloraner Rall pay wlien dae the peincips! of ant fetesent 29, the webs evbdmnend ley she Note aad weyproponent chasgis eh lute chases Soe manly se Nese, Hanover ahr ais pay Sends fas Borrow Hainpruomsant % Sector 2 Saymeme dan ender tke Nowe wed thi Security beomeimemt atl ke made it US.Rumney’. Homaves, & exp obo’ ox othar tramumont rentived by Leeder as payscemt wer the Nota ae ileSeiaaity ievkeumend is ntaauset @ Cancer anpsid, Landes may mauice that auy a als evdsoguent payeeGua sndes the Mente wat this Sosurity Incteuznentt Yo auadt bs Sow uF more af the Zoowing Some, As sehsCheSby Lender: {2} ewds 29) mecey sober; @) verified ahead, Dank check, Clam chek oe cute reek,proeidid any sich cdexk & dewwn spor on favthetlea Whnse vxpoatr atk azar by 9 Foal speney,inxanemeaaty, ag nabityy or 6} Biontauie Pracis Trauster, :Payers Bu ean’ seorinod iy Lender whos seneived at the location desigaatad ie the Nite or atsuels sabes hnosidnes a8 suay ba dealzwatod ay Center ip sscmncbinge seth the natiae pmisims in Section 15,Lanne: way foes doy pkytoN a partial paysient If the payment us partial paymods sre insuffichan toeing ste Lass auesni. Lander map uccept any payment of partial payreent famusticions te bring the LaceSerre, wicboo! wader af any sighs hercuader oF prejadiew wy Sy sights w valued sch msymcot or gaetalpayments i tbe future, kus Lauder hat obligmcd or apply much payments othe ae seek aeymanss srepomnpios if cach Paes Paymamt is applied as af fis srluodtied den date, wen Leader neok nex pry iatensstSosmappiied finds Lender mney RUC aeeS onanplied furl uxt Borrower soaker payment ta bring tha LoanGuten. aE Boncounee Boar aot da ys withie 2 eeascaable petted of tine, Lender still ekher apply mth Hundtwe cohen thom w Senowse Host apabad earlier, moh fonds will be suplieg me tbe guiswindiog principalSaiauce srder the Note kemesintely priot in forscicaure, No oflual or sis wine Bosower relate haepoe of in the fhewe agains Leader ball relieve Narrower finan neaking paymoms due wader tr Mie extise Seweity lonraascer of pertooaing Sue covenaats an sgrermenss recwed by hes Beauethy eaten,son iB RE meee BA/IN/PDOS GSC 2k Book22259/Page4077 Page 4 of 26(26)hittpa:/Awow2 miami-dadeclerk.com/officialrecords/PrintDocument.asps7QS=Va0oUiOzxr... LsMiami-Dade Official Records - Print Document Page 5 of 13 % Apgiteallis of Payments or Peoceads. Kites as wherelic dxaribed i thi Becta 4, 30payeonats scnated and apoliad by J.ender chal be appBeal fa the toltowing cubes af peiptiiy: Ge) naeeert diyunder the Pats 0) geienigal Gaz onder Be Nobe, &) amounts chte wider Sestion 3, Stuok poymente wal beapalied te sock Botolin Pagrecat oo the silat in schlehs A hocaene dom Any temining amosnes Sel! beapplied Gea so hate charge. seal 18 amy vilies aainanrs den iene Wile Seorty lactrmment, vad then ftsoakes Seaprincipa Ralace ef it Nose: .HY Lander enceions a payers Soot. Remover tor x délinguod Paaitin fayainad whieh inakades apg Fiedent ammusskd in pay Mey eee abasge ans, the payment may be sghled ty the deliuignenn pigmten? and Nee‘tate chore, fits than ome Berlodic Paymoms b exaeadion, Lanter olny ap aly any payment reenived nargrower ty the sepupssnnt nf Bix Ponlndic: Payismaus i atl to the cxtast Bei anak payment caw be guid ie‘fal Te tos Kies test sexy mendes enlvee wher the pigroenst ix upped mn. Cee fil gaymest of ane ef wisseFerindin. Magmments, sowh epnexe aay oe upplied to gay tne clnages din Uohinney pespayments sholl Se‘sells Simet x amty prepayenass shamges 368 thax 46 Seoavhed dn the Note,‘Aug appikation of pupmmis, eawaene proceels, ar Miscaliinenus Frosnets to principal dueander theeNike iat int exrprad @ Hurtpnae den dus dare, ne ehungs she mnsainl, wt dey Portals Payssensa,3. Fie for Beers Name, Borrower shall pay @ Leder na ths tay Pedic Payments aco dae wllthe Mong, anil te Netw Se eal Se Bl, 9 sues fhe “Purdis"s to provide thr noynitat of ansunts die 0 (8guaex aad armaments and ndber fare wall han sittin geluriiy aver this Bomicley Fectmmumt og x the otameuadhrance si tha Paopenty, 2) lexssbold puymenlz or grand ranis us the Praperty, Hany; (2) prntiamasKer way sa 6B iwsarsnne revs ky Lender aner Soatign 2. and (0) Mortgage Leuranne crominny, fay,es any auras gapasle fy Barewese si Levies ie fixe af the guymadt ef Morsgage bmammate premaivnsaorordsacs with the providions of Sexton 40, Tho haus are exdtel “Rnaww Home” At uelyiutina we aaap. tree Basing the tem 67 Bn Caco, Lendir inay myuise Gar Camesanity Asmcntion Tins, Po xdpastasaens, Jf any, Me astaswed by Rememer, a8 auch ders, thes. ant ssxouscaemmty shal be ah Bareshex Bore shalt crompsiy Teesich to Lender at aiticay of amoiats $9 by pid wodet dis Roxtlos.Bonswer shat gey Lender the Fuad fhe Estee ltenu salam Landes walens Borns ahhthe Ponds for are wv off Becen locas. Lender rey teaive Sorsowers abligation co pay 0 Lander Funds Sitsey ar ah Bare Tears at aay Hong. Aay teh water may only bie in writiag. ie iis overt of auch waiver:Besrown shall vay dieculys whee aed where payable, the murans dun fos ony Brccow ewe Jet wispayed of Paads bax tena waived Sy Lemler and, Wf Lender topties, sfall Tarmish an Lonuder receiptsEvideneing such payment whhle cioh Base porttel a Losche iuay rcqaita, Hocmwer's obligation to makesou payments and ts provkés rorsiots shalt fur aff puxporex ke deemed £3 be # cvental and aprementpauses We sige Soxuitye nsiransan, ax Ths planse “hovesnnt an ayseomont® & asod in SectionBonowen ie abligmot to pay Eecrow Kemet ditecity, warmiant to 3 waiver sad Sersrwer filbs © pay shewanonet doe Boe ao Escreos tong, Lider may ceswlee its righty andes Sentieg 9 ang pay such smo, andDomower thal Geos bh obligated anda: Section 9s enpay &2 Lradey any wach monet, Lauder oxy nerakeshe waierr oe 10 any 3e old Bnew Hoes ai may time by x oatice ween by arceodmioe with Serdion 13 xs,pan sash rescetios, Bandwer dull pay to Lindet all Ruods, ond fo muck kanawnts, that ace he regparadunder this Section 3.om “enOasA/EdGs 9280-22 oeoo Book22259/Page4 073 Page § ofs/ferore'Leuami-dadecterk.convofficialrecorda/PrintDocument. aspx ?7QS=¥a0UfOzx LOM26/2017Miami-Dade Official Records - Print Doc*ms Page 6 af 15Loiniier may, a aay Gene cattect and fold nds bao axonal fa) aufttstent ts genralt Lender to applydhe Bands a: the the specified ander REAR, and Oh} not fe pucoed thy masintum aniront a beniler catsoquiig. aude SERPS. Kander Soll acibaets the amuget of Sandy due on. tos barls of ponent date ondssacnsbiy Bsicone tues wiandonad tie Bisperty, dee Lander owy de ant pay day whadover ispeuawable oF agnraptine te goxsies Leudads intoreat ia the Reaperty ash sights sine thie Reewitylnstcemam, Wehvling seatreting andr sareosing the wales af ter Propely wel securing andor cxpairing theRropeny, Lende's stieny eas iectute, bit avo ner dievhes tos ja) paylog any sions. zenuses ky 2 Glen whinh‘nag poise av thls Bocasity tastrauieas, OD appearing it roost: wd tc} paying eracomabie anemeys Leespvenet ti satarest indie Propony wadior Nights embes dis Senusigy Lecawnent, imchading #8 neanced posiiomsde ston Seuzamy granending. Soruring the frperty includes, fot {wi lisied ia, suserley dhe Progetysuse septs, shuage locks, slave or hosed up sloors and windews, dist veer Hse pipan tliaoatsballding er mar kode vigheoms or dangerins ondinions, wad Bava adliting ties wu-ee Oi AbbaaghLuedler way aby arden vite: they Section 2, Lender dows wat have in do sn. and iy ao: ander say &Piliguion (9 da so. Hele opraed thos Loader incusg oo sbility Bir wet raking any a8 al acters sudsorised‘aude this Scotia 2“Any amount: Sidbureed Dy Lowdur ander this Sestion 2 shall become addidiomal debe of Remmesaucond hy uy Sseusly taseumenr Thest dmeunts shalt beer interest at tie Note rate Gow the dure afdhtunamest and soot Oe payable, WR sick interes, went Ratibe fom Lender 19 Beamer enquestingpasgeni,“of has Ganadiny leserument ison x heawaold, Remower mall korepiy with all Die provideas of the tess.Ir Rewrmeee aespelves fee tite to Oe Progany, the Inssehold awd the [as tle shall not cpeepe walleae Lenderayes be Tho ace ger IR woRtisig,16 Murégage Roaesven Of Lendte required Mortgage lanimmice ax # condition of makingBorcowar sald pay the peamniacis required tn mauiudh the Mangage temianee te effet ffthe Morigage laseranoe novesoge voywinad Ry Leader covsss te te avnildhte foam the wietigegs Wesiees thaiseu LOEB. O4(EO/2004 9250222 Book22259/Page4082 Page 9 of 26jerk. convofficialreconds/PrintDar oLaspx?QS=YaoUfOasr.., 10/26/21i-Dade Official Records - Print Document Page 10 0f 18provioudy penvided such iscurmce and Borrower was required to make separately designated paynent«toward tie prsnlams for Mortgage lnseraine, Borrower shell pay the grauniums wauired tp obtals coveragesobsientiaily ogsivalen th vA Manigage Insuraaine previously ie affict, a¢ a cast eabehistially agifowlent 2dhe cost io Bormwer of 18K Marigegs Juquitian peevignsly In effect, fram an alirnate mnngige bearosekenien iy Lender IPodhstentially equivalent Mosiyage tnsarstes novernge 8 not avallable, Bissowes shallsoutaes dopey te Linde dis aemnes of Ree acparataly deelgaatad prpermats that wore dee hor thefasarerce sewerage aamad Xe bow de athe Lender will roel, wo ned mish these pigments as 2aonsefeadable tose tose in Hos of Mongage laswance. Guch loss reserve atuall he nov-refandatle,nedwithstonding the (eet Gist the Loan 32 wilmetdy pid in Goll, and Lender stall nov be required to payBorrawer any taerest or eamings of such lose reserve. Lender can oo fonges tonquie toss seseeve paycucats ffMostgage Incaranes caverage (ie the umount anid for the periodtha Letter caguitee) provided by si histreeselected by Leder open Becomzs avaitsble, is obtained, and Leader requires sepomately designatedpayment, igwsrl the prembuer She Mortgage Inmunmce, if Lender rognirad Moryage insersaee as 8rondition afmsking te Loar and Bomswe was mequired to make supersiely deviated payments tewardthe prowiume for Monyage foceraus, Bewewer shall pay the praniom required to mualnisin MortgageIanutance in affect, of io provide 3 concofuoduble toss rexerve, untit Lender's eogsiremant for MongazeInsurance onds is aveantonce widh aay webis: agreement betwaes Bomewer und Leader providing for aneltermination or ensil tosufnation fe requlred by Agplisatls Law, Noting te vile Seotion 19 wllerte Somrawersvbligation we rag interest wt the nse pravikfor in the Note.Dovtyags insiesuce seimmmutses Lanter for way enthty thet purchases the Note) fer certain looses ft mayJaxer Hf Zenraser dane oe topey the Loan ws agrens!, Borwwer is nat a pay us she Mongage foxuaere,Mosgsge domrers reaaate sein Svist 9K ga afl mick Remmsoes ws fares dum ds ta Nin, wad mayartless gerconnens ANB aifier Gives shal diary ax modify heir rixk, o meduro txts, Tug egrommenisem teoman and omediGenr that are xatisivotory te the wsostgage iaxuser and the other party or patties) taSore gyrenmunis. Thee agers may mquire the y inaerer SO mabe payns iy Ray ATE‘of finds iol she marigige fiswser ay have availtiate {which may inclede fits ebisicos Som Monaagetesuranoe press.As a result oF diese agtoenuatty, Lender, any purchase ofthe Note, anodic: insures, uy ceinsuser, ayonghar emity or any atlas of any of the foreyning, wiay eneedve Ginestly 41 hhetiectly} amaunir thes deriveSues foe eign Ge huartorived a2} o penton of Rorown’s muymasy fer Mongage x ecclinagefor rhadeg ar wosilying tie monasge Rance’ sith, or reduning leases IT sachs specemant geotldes tak 38sUilste of Loads tabes & suse oF fhe anonrer's cisk ih exchange fee a shave of t
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52 HOMESTEAD REALTY LLC VS RAIQUEL FERRIA ET AL
Aug 23, 2024 |SD 05 - South Dade 05 - Judge Gonzalez-Paulson, Michaelle |Evictions - Residential |Evictions - Residential |2024-166235-CC-26
Ruling
VANYSHA MARIE THOMPSON, ET AL. VS TONY HUY LIM, ET AL.
Sep 03, 2024 |24LBCV00396
Case Number: 24LBCV00396 Hearing Date: September 3, 2024 Dept: S25 Procedural Background On February 26, 2024, Plaintiffs filed a complaint against Defendants Tony Huy Lim, Margaret Chung and Does 1 to 20, alleging: 1. Breach of Contract 2. Breach of Warranty of Habitability 3. Breach of Covenant of Quiet Enjoyment 4. Wrongful Eviction 5. Violation of California Civil Code §1940.2 6. Violation of Long Beach Municipal Code § 8.101.030 7. Violation of California Civil Code § 1946.2 8. Negligence Plaintiffs allege that they were lawful tenants at a real property located at 6902 Eastondale Avenue, Long Beach, California (property) that they believe was owned, operated, managed and/or maintained by Defendants. (Compl., ¶ 6.) Plaintiffs also allege that the property leased to them by Defendants was an illegal, unpermitted unit. (Compl., ¶ 14.) Plaintiffs further allege that on February 23, 2022, the City of Long Beach Code Enforcement Bureau inspected the property and noted various violations of the Long Beach Municipal Code; also on or about March 10, 2023, Defendatns were issued a citation warning notice by City of Long Beach Development Service, Code Enforcement Bureau. (Compl., ¶¶ 15, 16.) Plaintiffs assert that during their tenancy at the property, they experienced substandard conditions at the property, including but not limited to damaged portions of the roof and eaves and mold in several areas of the property. (Compl., ¶ 17.) Plaintiffs state their tenancy was terminated so Defendants could do construction on the Property and that they moved from the property on or about July 28, 2023. (Compl., ¶¶ 19, 20.) On April 19, 2024, the Court granted Plaintiffs applications for appointment of Guardian Ad Litem for minors Zamarion Weldon Thompson and Zekhi Blessing Thompson. On July 8, 2024, Defendants filed the instant Demurrer as to the 1st, 2nd, 4th, 5th and 6th Causes of Action and a Motion to Strike Portions of the Complaint. As of August 28, 2024, no opposition has been filed. Legal Standards Demurrer A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no speaking demurrers). A demurrer is brought under Code Civ. Proc., § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50, subd. (a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code Civ. Proc., § 430.10, subd. (e) if insufficient facts are stated to support the cause of action asserted. Per Code Civ. Proc., § 430.10, subd. (a), a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as plead in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Motion to Strike A party may move to strike matters from an opposing partys pleading if it is irrelevant, false or improper. (See Code Civ. Proc. §§ 435, 436, subd. (a).) Motion to strike may also target all or any part of pleadings not filed or drawn in conformity with the applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) A Motion to Strike is the proper procedure for testing the adequacy of a punitive damages allegation because punitive damages are not a cause of action. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 164.) Meet and Confer The meet and confer requirements of Code Civ. Proc., § 430.41(a) and Code of Civ. Proc., § 435.5 have been satisfied. Tentative Ruling 1st Cause of Action Breach of Contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) If [an] action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Alternatively, the plaintiff may also plead the legal effect of the contract. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The complaint does not state any details of the alleged lease agreement entered into, when Plaintiffs moved into the property and contractual provisions that Defendants allegedly breached. Plaintiffs have failed to attach the lease contract to their complaint. Plaintiffs only supporting allegation is that portions of the property were cited by the City of Long Beach on February 23, 2023, but even that does not identify the entire unit as being unpermitted or uninhabitable. (Compl., ¶ 15.) 2nd Cause of Action Breach of Warranty of Habitability [T]here is a warranty of habitability implied in residential leases in California. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296.) [A] tenant may bring suit against the landlord for damages resulting from such breach. (Id. at p. 1297.) The elements of such an affirmative claim are the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. (Ibid.) [A] tenant may maintain a tort action against his landlord for damages suffered by way of annoyance or discomfort or for injury to his personal property caused by the landlord's failure to keep the premises in a habitable condition. (Id. at p. 1298.) Plaintiffs have not identified in what way there was a material defective condition affecting the propertys habitability. Plaintiffs have also not alleged when they notified Defendants of the material defective condition(s) and that reasonable time was given for Defendants to correct the deficiency. The claim fails to state sufficient facts for a breach of warranty of habitability cause of action. 4th Cause of Action Wrongful Eviction The law provides both statutory and tort remedies for wrongful eviction. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1037.) Under the tort remedies, a person in peaceable possession of real property may recover, in an action sounding in tort, damages for injuries to his person and goods caused by the forcible entry of one who is, or claims to be, the lawful owner or possessor.... (Id. at 1039.) The two requirements to establish the tort are (1) peaceable possession of the premises by the plaintiff, and (2) forcible entry by the defendant. (Id. at 1039-1040.) The complaint does not state sufficient facts to determine what the parties rights were pursuant to the lease agreement. Specifically, Plaintiffs fail to reference any lease provision and fail to attach the lease agreement to the complaint. Without the lease agreement, the rights of the parties are not properly alleged in the complaint. 5th Cause of Action Violation of Civil Code Section 1940.2 Civil Code section 1940.2 generally prevents landlords from using forceful, threatening, or menacing conduct that interferes with a tenant's quiet enjoyment of the premises. Plaintiffs have not sufficiently alleged facts to support the 60-day notice was inappropriate or wrongful. Further, allegations that Defendants sent a 60-day notice, failed to maintain the property in a habitable condition and failed to address citations issued by the City of Long Beach were forceful, threatening or menacing conduct that interfered with Plaintiffs quiet enjoyment of the property. 6th Cause of Action Violation of Long Beach Municipal Code Section 8.101.030 Long Beach Municipal Code § 8.101.030 provides that: No owner shall: B. Acting in bad faith, (i) fail to timely perform repairs and maintenance required by a rental agreement or by Federal, State, County or local housing, health or safety laws; (ii) fail to exercise due diligence in completing such repairs once undertaken; (iii) fail to follow appropriate industry repair, containment, or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts; or (iv) conduct elective renovation or construction of a rental housing unit for the purpose of harassing a tenant. D. Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, misrepresentation, intimidation or coercion, which shall include threatening to report a tenant to the United States Department of Homeland Security. G. Take action to terminate any tenancy, including service of any notice to quit or other eviction notice, or bring any action to recover possession of a rental housing unit, based upon facts which owner has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to owner. M. Commit other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of a rental housing unit and that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a rental housing unit to vacate such rental housing unit or to surrender or waive any rights in relation to such occupancy. (Long Beach Municipal Code section 8.101.030.) Plaintiffs have pled insufficient facts to support this claim. It is unclear whether Plaintiffs alleging that the entire property is illegal and uninhabitable. There are no facts alleged to support Plaintiffs assertion that the 60-day notice to vacate was illegal. Further, Plaintiffs do not allege that they complained about conditions during their tenancy or that Defendants refused to perform repairs after Plaintiffs requests. The demurrer as to the 1st, 2nd, 4th, 5th and 6th is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have 20 days from the date of this ruling to amend. In light of this courts ruling, Defendants motion to strike is moot.
Ruling
DEAN E. THAYER, TRUSTEE OF THE DEAN E. THAYER TRUST DATED 5/24/2011 VS VINCENT FLAHERTY, AN INDIVIDUAL, AND AS SUCCESSOR TRUSTEE OF THE KHG TRUST, ET AL.
Aug 27, 2024 |6/18/2022 |23SMCV06010
Case Number: 23SMCV06010 Hearing Date: August 27, 2024 Dept: I The court has received the motion to quash. An untimely opposition was filed on August 22, 2024. Plaintiff claims that the opposition should be considered because the proof of service of the motion is false; in fact, the defense claims, the papers were never served. The court has considered the opposition, but will give defendant an opportunity to submit a reply, as defendants have requested. In the reply, defendant should be sure to consider (among other things) plaintiffs position that the motion is moot because defendant moved to disqualify Judge Young pursuant to CCP section 170.6. That challenge was made on April 22, 2024, and it was granted the next day. Plaintiff might or might not be right about service of the complaint in general, but the court thinks that plaintiff has a point about the 170.6 challenge. That act constituted a voluntary general appearance. Generally speaking, if a defendant makes a general appearance, all defects of service are waived and jurisdiction is established. The court also notes that on May 23, 2024, defendants prior motion to quash was denied for issues relating to service, but without prejudice to bringing a new motion to quash and set aside the default. The court notes that plaintiff offered to stipulate to set aside the default if defendant was willing (1) to agree that service was complete as of that date and (2) answer within five days (the amount of time permitted normally in a UD case). Defendant refused to accept that proposal. In light of those proceedings and issues, the court stayed the writ of possession, but only until August 1, 2024. Plaintiff moved for reconsideration of the courts order, but the motion for reconsideration was denied on July 3, 2024. On July 29, 2024, defendant moved again to quash the summons, which is the motion now before the court. From this point forward, all service will be either electronically to the address that the court will obtain from the parties today or, if the parties will not stipulate to electronic service, then there will be a courtesy copy served electronically. In the instant case, plaintiff contends that he did not receive the electronic service of defendants motion. With the reply, defendant will submit the metadata from the email application that shows when the email was sent and delivered to the defense. The nice thing about email is that there is an electronic metadata stamp that will prove when it was sent and delivered. The failure to be able to produce that information will be deemed conclusive evidence that the email was never sent and that there was no service. On the other hand, if that information is produced, then it would demonstrate conclusively to the court that plaintiff is being untruthful with the court regarding service. This endless fighting about something as straightforward as proper service will end, and it will end now. For now, this hearing is continued for one week to September 3, 2024, at 9 am. Defendant will have until Thursday, August 29, 2024, at noon to file and serve the reply. The current reply will therefore be superseded by the new reply and will not be considered further by the court. Defendant should provide the court with a courtesy hard copy at the same time so that the court can be sure it will see it in time to consider the document before ruling. The court will discuss the fee waiver issues in camera.
Ruling
Aug 29, 2024 |18STCV10154
Case Number: 18STCV10154 Hearing Date: August 29, 2024 Dept: 1 18STCV10154 YOUNG CHOW DAI vs FELDMAN & ROTHSTEIN, P.C., et al. 1. Application for Order to Vacate Prefilijng [sic] Order and Remove Plaintiff Judicial Council Vexatious Litigant List Form VL-120 and First Amended Application for Order to Vacate Prefilijng [sic] Order and Remove Plaintiff Judicial Council Vexatious Litigant List Form VL-120 TENTATIVE RULING: The Application for Order to Vacate Prefiling Order and Remove Plaintiff Judicial Council Vexatious Litigant List (Form VL-120) and First Amended Application for Order to Vacate Prefiling Order and Remove Plaintiff Judicial Council Vexatious Litigant List (Form VL-120) are DENIED. Counsel for Defendant Anthony Ranieri to give notice. On December 31, 2018, Young Chow Dai filed 18STCV10154 against Feldman & Rothstein P.C., Anthony Ranieri, Mauro Fiore, Jr. APC, Krystal Rosal, and Marsha Mao. On November 22, 2022, the court entered an order dismissing the action. On April 8, 2024, Commissioner Latrice A. G. Byrdsong formally declared Young Chow Dai a vexatious litigant in Los Angeles Superior Court case 18STCV10154 Dai v. Feldman & Rothstein, P.C. Under this order, Dai became subject to a Code of Civil Procedure section 391.7 prefiling requirement that requires Dai to obtain the permission of the presiding judge to file new litigation. Permission is granted only if it appears the litigation has merit and is not being filed for purposes of harassment or delay. (Code Civ. Proc. § 391.7(b).) In the Los Angeles Superior Court, the Presiding Judge has designated the Supervising Judge of the Civil Division (sitting in Dept. 1) to exercise this authority and responsibility. (See Code Civ. Proc. 391.7(e).) Discussion In the May 31, 2024 and June 5, 2024 filings, Dai seeks to vacate the prefiling order. Pursuant to Code of Civil Procedure section 391.8(a), an application to vacate a prefiling order shall be made before the judge who entered the order if that judge is available; otherwise, the application shall be made before the presiding judge or his or her designee. The Supervising Judge of the Civil Division, who sits in Department 1, is the designee of the presiding judge under this statute. (Code Civ. Proc. § 391.8(a).) However, Commissioner Latrice A. G. Byrdsong remains available in Department 8 of the Stanley Mosk Courthouse. Accordingly, Dai must submit any application to vacate the prefiling order directly to Commissioner Byrdsong for review. (Code Civ. Proc. § 391.8(a).) Because Dais application to vacate prefiling order is not properly before Department 1, the application is DENIED without prejudice as procedurally improper. In the June 5, 2024 filing, Dai also provides a letter listing causes of action and reference enclosed exhibits that were not filed. To the extent Dais filing seeks to file new civil litigation, the request is procedurally improper. A request to file new litigation should not be filed in an existing case. In the Los Angeles Superior Court, vexatious litigants should submit their requests to file new litigation at the filing window in the Stanley Mosk Courthouse. The documents will then be forwarded to Department 1 and be addressed in due course. Moreover, Dais request is insufficient to demonstrate any proposed new litigation has merit and has not been filed for the purposes of harassment or delay. (Code Civ. Proc. § 391.7(b).) When requesting leave to file new litigation, the litigant must provide a copy of the proposed pleading to be filed as well as evidence supporting the claims asserted therein. Though Dais submission refers to a formal complaint and supporting exhibit evidence, (Mot. at 4), Dais submission is not accompanied by a proposed complaint or evidence supporting the claims asserted. 2. Plaintiffs Motion for Order (Request to File New Litigation by Vexatious Litigant Form VL-110) TENTATIVE RULING: The Motion for Order (Request for File New Litigation by Vexatious Litigant Form VL-110) filed June 5, 2024 is DENIED. Counsel for Defendant Anthony Ranieri to give notice. Background On December 31, 2018, Young Chow Dai filed 18STCV10154 against Feldman & Rothstein P.C., Anthony Ranieri, Mauro Fiore, Jr. APC, Krystal Rosal, and Marsha Mao. On November 22, 2022, the court entered an order dismissing the action. On April 8, 2024, Commissioner Latrice A. G. Byrdsong formally declared Young Chow Dai a vexatious litigant in Los Angeles Superior Court case 18STCV10154 Dai v. Feldman & Rothstein, P.C. Under this order, Dai became subject to a Code of Civil Procedure section 391.7 prefiling requirement that requires Dai to obtain the permission of the presiding judge to file new litigation. Permission is granted only if it appears the litigation has merit and is not being filed for purposes of harassment or delay. (Code Civ. Proc. § 391.7(b).) In the Los Angeles Superior Court, the Presiding Judge has designated the Supervising Judge of the Civil Division (sitting in Dept. 1) to exercise this authority and responsibility. (See Code Civ. Proc. 391.7(e).) Discussion In the June 5, 2024 filing, Dai requests to file new litigation against the Defendants. The request is procedurally improper. A request to file new litigation should not be filed in an existing case. In the Los Angeles Superior Court, vexatious litigants should submit their requests to file new litigation at the filing window in the Stanley Mosk Courthouse. The documents will then be forwarded to Department 1 and be addressed in due course. Moreover, Dais request is insufficient to demonstrate any proposed new litigation has merit and has not been filed for the purposes of harassment or delay. (Code Civ. Proc. § 391.7(b).) When requesting leave to file new litigation, the litigant must provide a copy of the proposed pleading to be filed as well as evidence supporting the claims asserted therein. Dais submission is not accompanied by a proposed complaint. Finally, Department 1 denied Dais June 5, 2024 request to file new litigation against Feldman & Rothstein P.C., Anthony Ranieri, Mauro Fiore, Jr. APC, Krystal Rosal, and Marsha Mao on August 7, 2024. Once the vexatious litigants request to file has been denied because the proposed complaint lacks merit or is designed to harass or cause delay, he or she cannot simply try over and over again. (Colombo v. Kinkle, Rodiger & Spriggs (2019) 35 Cal.App.5th 407, 412.) As stated in the Courts August 7, 2024 order and argued by Defendants, Dais claims appear barred by all applicable statutes of limitations. Plaintiffs motion lacks merit and is DENIED.
Ruling
MAHRT vs Cornerstone et al
Aug 30, 2024 |SCV-270601
SCV-270601, MAHRT v. Cornerstone et al. RLI’s request for judicial notice is GRANTED. The demurrer to the first cause of action isSUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the second cause of action isSUSTAINED WITH LEAVE TO AMEND. Macario’s cross-complaint is severed from case no. SCV-270601. It will proceed under thecaption David Macario DBA Macario Insurance Group v. RLI Insurance Company, Moes 1 through 50,inclusive, with a new case number to be assigned by the clerk. RLI’s counsel is directed to prepare a written order consistent with this tentative ruling andcompliant with California Rules of Court, rule 3.1312.I. Factual background In July 2021, Garry and Gillian Mahrt (collectively “Plaintiffs”) entered into an agreement topurchase a 158-acre ranch for $2.6 million. Defendant Cornerstone Land Co. (“Cornerstone”) was the realestate broker representing both Plaintiffs and the seller in the transaction. On August 16, 2021, Plaintiffswired the full purchase price according to transfer instructions they had received by email purporting to befrom Gabriel Foster (“Foster”), an agent with Cornerstone. Unfortunately, the email was a fraud sent bydefendant Yang Liu, one of the principals of defendant CASL International, who had hacked into computersin California and learned enough about Plaintiffs’ upcoming real estate transaction to enable him to createthe fraudulent email. As a result, Plaintiffs’ $2.6 million went into CASL’s account at defendant JPMorganChase Bank, from which it has since been withdrawn. Cross-complainant David Macario (“Macario”) was Cornerstone’s insurance broker. Cross-defendant RLI Insurance (“RLI”) was Cornerstone’s errors and omissions (“E&O”) insurer, a relationshipthat began in 2018. On August 17, 2021, Cornerstone, with Macario’s assistance, filled out an applicationto renew the E&O policy for the twelve months beginning on September 17, 2021. Question 9 on theapplication asked whether Cornerstone had “any knowledge of any incident, a circ*mstance, an event, orunresolved fee dispute that may result in a claim.” Cornerstone responded “no.” The application also statedthat if Cornerstone learned of any information that would change that answer prior to the effective date ofthe coverage, September 17, 20201, Cornerstone would notify RLI in writing of that information. Macariosent the renewal application to RLI on August 18, 2021. RLI alleges that Plaintiffs informed Cornerstone of their loss on August 20, 2021, that Cornerstonenotified Macario of the loss on August 23, that Plaintiffs’ attorney informed Cornerstone of an investigationinto the loss on December 6, and that on or about December 15, Macario instructed Macario to file a formalclaim with RLI. However, Cornerstone first apprised RLI of the loss on March 15, 2022. On April 29 andagain on May 12, RLI denied coverage on the basis that Cornerstone had failed to inform them of Plaintiffs’potential claim prior to the beginning of the coverage period on September 17, 2021.II. Procedural background The underlying lawsuit was initiated on April 14, 2022, when Plaintiffs filed a complaint againstCornerstone, Foster, JPMorgan Chase Bank, Yang Liu, and several other entities. On October 5, 2023, RLI sued Cornerstone in the Eastern District federal court, RLI Insurance v.Cornerstone (no. 2:23-cv-02265), seeking rescission of the 2021-2022 insurance policy on the grounds ofCornerstone’s misrepresentation that did not know of any pending claims. On December 19, 2023, Cornerstone cross-complained in the case at bar against Macario forprofessional negligence for failing to notify RLI of the potential claim when he became aware of it, and forequitable indemnity. On March 8, 2024, Macario filed a cross-complaint (“Cross-complaint”) against RLI for declaratoryrelief and equitable indemnity. RLI demurred to the Cross-complaint on June 4, 2024, and moved, in thealternative to sustaining the demurrer without leave to amend, for severance of Macario’s cross-action fromthe underlying lawsuit. This matter comes on calendar for hearing on that motion.III. Judicial notice RLI requests judicial notice of the First Amended Complaint, Cornerstone’s cross-complaint againstMacario, Macario’s cross-complaint against RLI, and RLI’s complaint against Cornerstone in the EasternDistrict federal court. The request is granted pursuant to Evid. Code § 452(d).IV. Demurrer A. Governing law A demurrer tests whether the complaint sufficiently states a valid cause of action. (Hahn v. Merda(2007) 147 Cal.App.4th 740, 747.) Complaints are read as a whole, in context, and are liberallyconstrued. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Stevens v. Superior Court (1999) 75Cal.App.4th 594, 601.) In reviewing the sufficiency of a complaint, courts accept as true all material factsproperly pleaded, but not contentions, deductions, conclusions of fact or law, the construction ofinstruments pleaded, or facts impossible in law. (Rakestraw v. California Physicians’ Service (2000) 81Cal.App.4th 39, 43; see also South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)Matters which may be judicially noticed are also considered. (Serrano v. Priest (1971) 5 Cal.3d 584,591.) If a demurrer is sustained, leave to amend should be granted where the complaint’s defect can becured by amendment. (The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 852.) A court abusesits discretion by denying leave to amend where there is any reasonable possibility that the plaintiff canstate a valid cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) However, “[l]eave toamend should be denied where the facts are not in dispute and the nature of the claim is clear, but noliability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)The burden is on the plaintiff to show how the complaint can be amended, and how that amendment willchange the legal effect of the pleading. (Goodman, supra, at p. 349.) B. First cause of action: declaratory relief In the Cross-complaint, Macario seeks “a declaration that [RLI is] obliged to indemnify the actionherein on behalf of [Cornerstone], and [Cornerstone] has a present right to receive a defense from [RLI].”(Cross-complaint, Prayer ¶ 1.) That is, in his first cause of action, Macario seeks this Court’s declarationthat RLI is required to honor the terms of its insurance policy with Cornerstone, despite not having beentimely informed of Plaintiffs’ potential claim against Cornerstone. “Any person interested . . . under a contract [may] bring an original action . . . for a declaration ofhis rights and duties in the premises, including a determination of any question of construction or validityarising under such instrument or contract.” (CCP § 1060.) RLI argues that Macario lacks standing toseek this relief because he is not a party to the insurance policy under which he seeks to compel RLI’sperformance, and therefore not “interested . . . under the contract.” The Court agrees that a non-party to acontract lacks standing to seek a declaration of rights under that contract. (See, e.g., Fladeboe v.American Isuzu Motors (2007) 150 Cal.App.4th 42, 55; Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)Macario argues in response that has standing to seek declaratory relief because he was paid a commissionfor brokering the policy and is therefore a third-party beneficiary of it, and therefore has standing to sue toenforce it. (Oppo at pp. 5-6.) A third party may bring a cause of action on a contract only when three conditions are met: thethird party would in fact benefit from the contract; “a motivating purpose of the contracting parties was toprovide a benefit to the third party”; and “permitting a third party to bring its own breach of contractaction against a contracting party is consistent with the objectives of the contract and the reasonableexpectations of the contracting parties.” (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.) “Allthree elements must be satisfied to permit the third party action to go forward.” (Ibid.) The contract at issue here, the insurance policy issued by insurer RLI for the benefit of insuredCornerstone, appears as Exhibit B to Exhibit D of RLI’s request for judicial notice. Nothing about itsuggests that a motivating purpose of RLI and Cornerstone was to provide Macario with a commission.Macario avers that “the contract explicitly includes Macario’s commission as part of the consideration.”(Oppo at p. 6.) Macario does not point out where in the contract that explicit inclusion is to be found, andit is not obvious to the Court. Nothing in the policy mentions a commission, or payment to a broker forarranging the policy, or anything along those lines. RLI’s response to Macario’s contention that thepolicy “explicitly includes Macario’s commission as part of the consideration” is that “It does no suchthing.” (Reply at p. 2, fn. 1.) The Court sees no basis to disagree with that assessment. Moreover, even if Macario were a third-party beneficiary, his ability to enforce the policy wouldextend only to the benefits he stood to receive. A third party suing on a contract “bears the burden ofproving that the promise he seeks to enforce was actually made to him personally or to a class of which heis a member.” (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348-349.) If the policy contained aprovision that Macario was to be paid a commission – which, again, it does not – Macario could sue tocollect that commission if it was not paid, but he would still not be entitled to sue to enforce a promisemade by one of the contracting parties to the other one, because that would be a promise not made to himpersonally. The demurrer is sustained with respect to the first cause of action. Since Macario could notpossibly allege anything that would change the fact that he is not a party to the contract he seeks toenforce, leave to amend is denied. C. Second cause of action: equitable indemnity The principle of equitable indemnity “permit[s] the equitable sharing of loss between multipletortfeasors.” (American Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578, 597; GemDevelopers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 426.) The operative wordis “tortfeasors.” Equitable indemnity is a tort concept. Cornerstone is suing Macario for professionalnegligence, so there is no question that he is alleged to be a tortfeasor. (RJN, Exh. B at p. 9.) Thequestion, then, is whether RLI is a joint tortfeasor; that is, whether Cornerstone’s damages, which consistof exposure to potential liability for Plaintiffs’ claims with no insurance coverage, are caused by RLI’stortious conduct, in addition to Macario’s alleged tortious conduct. RLI’s argument, in summary, is thatRLI cannot possibly be a joint tortfeasor because its relationship with Cornerstone is based purely oncontract, specifically on the insurance policy. Macario argues that his “involvement in the alleged wrongful acts, including misrepresentation ofthe Policy requirements, when combined with RLI’s subsequent actions denying coverage, does establisha basis for tort liability.” (Oppo at p. 10.) He does not explain how it establishes that. However, thesecond paragraph in the equitable indemnity cause of action comes close: “Therefore, CROSS-COMPLAINANT would be entitled to complete or partial equitable indemnity from CROSS-DEFENDANTS if the damages and relief claimed are covered under the any [sic] policy issued byCROSS-DEFENDANT.” It is possible for an insurer to wrongfully deny coverage and incur only liabilityfor breach of contract; if that were the situation, RLI’s (hypothetical) wrongful action would not makeRLI a joint tortfeasor, and RLI could, therefore, not be liable for equitable indemnity. However, if RLI’sdenial of coverage were not only wrongful, and not only breach of contract, but also a tort, then RLIwould arguably be a joint tortfeasor. An insurer’s denial of coverage can be a tort if it is done in bad faith. “An insurer is said to act in‘bad faith’ when it not only breaches its policy contract but also breaches its implied covenant to dealfairly and in good faith with its insured.” (Jordan v. Allstate Insurance Co. (2007) 148 Cal.App.4th 1062,1071.) “When the insurer unreasonably and in bad faith withholds payment of the claim of its insured, itis subject to liability in tort.” (Frommoethelydo v. Fire Insurance Exchange (1986) 42 Cal.3d 208, 214-215.) Thus, in theory, Macario and RLI could be joint tortfeasors if Cornerstone’s injury resulted from acombination of Macario’s professional negligence and RLI’s bad faith denial of Cornerstone’s claim.(See, e.g., National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1078.) Since the second cause of action incorrectly alleges that Macario would be entitled to equitableindemnity from RLI in the case of any wrongful denial of coverage, the demurrer is sustained as to thatcause of action. However, leave to amend is granted. Macario may amend the second cause of action toallege that he would be entitled to equitable indemnity if RLI is found to have denied Cornerstone’s claimin bad faith. The Court takes no position on whether Macario could prove such an allegation, but thatquestion does not arise at the demurrer stage.V. Severance of the cross-action A. RLI is not an appropriate party to this lawsuit “Generally an insurer may not be joined as a party-defendant in the underlying action against theinsured by the injured third party. The fact that an insurer has agreed to indemnify the insured for anyjudgment rendered in the action does not make the insurer a proper party. Liability insurance is not acontract for the benefit of the injured party so as to allow it to sue the insurer directly.” (Royal SurplusLines Ins. Co. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200, citing Rutter Group, Cal. PracticeGuide: Insurance Litigation ¶ 15.11.) This principle springs from Evid. Code § 1155, which provides thatevidence that a defendant was insured at the time of an injury “is inadmissible to prove negligence orother wrongdoing.” RLI argues that this principle requires the Court to either sustain the instant demurrerwithout leave to amend or sever Macario’s cross-complaint against RLI from the case at bar. The Court agrees. The point of this rule is to avoid the trial of a personal injury action and anaction against the defendant’s insurer before the same jury, because in such a trial, “the fact of [thedefendant’s] liability insurance would . . . be disclosed to the jury which would be determining the issuesinvolved, a circ*mstance which is generally held a matter of prejudice.” (State Farm Mutual Auto. Ins. v.Superior Court (1956) 47 Cal.2d 428, 432.) The holding to which the court referred became a statutoryrule when Evid. Code § 1155 took effect in 1967. “A joint trial against the insured for negligence andagainst the insurer for violating its duties under [Ins. Code § 790.03(h), which prohibits unfair claimssettlement practices] would obviously violate both the letter and spirit of [Evid. Code § 1155].” (RoyalGlobe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 891.) Moradi-Shalal v. Fireman’s Fund (1988)46 Cal.3d 287 overruled Royal Globe on the issue of whether there is a private cause of action againstinsurers for unfair settlement practices, but cited the above-quoted passage from Royal Globe withapproval as authority for sustaining the insurer’s demurrer. (Id. at p. 306.) In State Farm, supra, the insurer brought a declaratory relief action against its insured, Collins,seeking a determination of whether the automobile accident in which Collins had been involved wascovered by the policy. (State Farm, supra, 47 Cal.2d at p. 430.) While that action was pending, severalpeople who had been involved in the accident sued Collins. (Ibid.) The trial court consolidated theactions, resulting in a case involving both a tort action against Collins and a coverage action betweenCollins and the insurer. (Ibid.) Our Supreme Court held that the consolidation was an abuse of discretionand ordered the two actions severed. (Id. at p. 433.) In Royal Globe, supra, the plaintiff sued both thefood market where she had fallen and its insurer. (Royal Globe, supra, 23 Cal.3d at p. 884.) Althoughthe Supreme Court agreed with the plaintiff that “a third party claimant may sue an insurer” for violationsof the statute prohibiting unfair claims practices, it held that such a lawsuit must be separate from thepersonal injury action against the claimant. (Ibid.; again, the former holding was subsequently overturnedby Moradi-Shalal, supra.) The situation here differs slightly. State Farm and Royal Globe both involved a single individualwho was the defendant in the underlying tort action and also engaged in a dispute with the insurerregarding his own coverage (as a plaintiff in the case of Royal Globe and as a defendant in the case ofState Farm). Here, in contrast, the cross-defendant in the cross-action for malpractice, Macario, has suedthe insurer, RLI, over its coverage of someone else, the cross-complainant Cornerstone. That would be acrucial distinction if the cross-action were the entire lawsuit. The evil that the rule under discussion seeksto avoid is a jury learning that a defendant has insurance coverage, which Evid. Code § 1155 forbids thejury from knowing. All the jury would learn at a trial of the cross-action is that Cornerstone has insurancecoverage, which could not prejudice them in favor of granting damages to Cornerstone and againstMacario since Cornerstone would not be a party. However, the cross-action is not the entire lawsuit. The case at bar is, at its core, an action by theMahrts against Cornerstone. That is, in addition to being a cross-complainant, Cornerstone is also adefendant. Therefore, under Evid. Code § 1155, the jury is not permitted to know that Cornerstone hasinsurance that might arguably cover the plaintiffs’ damages, even under the circ*mstance that the insurerdisputes coverage. If this lawsuit proceeds as currently structured, the jury would inevitably learn that.Therefore, RLI is not an appropriate party. B. The authorities cited by Macario are not to the contrary. Macario states that his “situation is distinguishable because his claim involves professionnegligence and the need for equitable indemnity,” and that his “claims against RLI involve allegations ofprofessional negligence and the handling of the insurance claim.” (Oppo at pp. 12, 13.) (To be clear, it isCornerstone’s claim against Macario that involves allegations of professional negligence.) As authorityfor the proposition that these facts change anything, Macario cites to Otay Land Co. v. Royal IndemnityCo. (2008) 169 Cal.App.4th 556, characterizing it as an example of “situations where insurers have beenincluded due to their significant involvement in the underlying issues.” (Oppo at p. 13.) In Otay, theinsurer was included because it was the defendant: Otay is a simple two-party lawsuit by an insuredagainst its insurer for a declaratory judgment regarding coverage. (Id. at p. 558.) It does not address theissue presented here of an insurer and its insured both being sued by someone else in the same lawsuit. Macario also asserts that “[t]his almost precise scenario was presented in” Royal Surplus, supra,100 Cal.App.4th 193. (Oppo at p. 14.) “Almost precise” is not the same as “precise”; Royal Surpluscomes somewhat closer than Otay to being on point, but is distinguishable on its facts. There, a generalcontractor and its insurer (respectively Ocean and Royal Surplus) sued a subcontractor and its insurer(respectively Ultimate and Ranger) for indemnity after tenants of an apartment complex built by Ocean,with framing work done by Ultimate, sued Ocean over habitability issues. (Id. at pp. 196-197.) The trialcourt “sustained Ranger’s demurrer without leave to amend solely on the ground of misjoinder in that itwas improper to name both the insured and insurer in the same action.” (Id. at p. 198.) That is, the trialcourt dismissed the case on the same grounds upon which RLI urges this Court to dismiss Macario’scross-complaint. The reviewing court reversed. However, the reason for the reversal was that Ocean and Ultimatehad an explicit indemnification agreement “that required Ultimate to defend and indemnify Ocean forclaims arising out of Ultimate’s work,” and also required Ocean to be named as an additional insured onUltimate’s policy with Ranger. (Royal Surplus, supra, 100 Cal.App.4th at p. 196.) Therefore, this wasnot a so-called third-party case where an injured party sues both the party that injured him and that party’sinsurer; it was a first-party case where an injured party sued its own insurer, which is what Ranger waswith respect to Ocean under the indemnification agreement. (Id. at p. 200 [“If Ocean is an additionalinsured, then it is a first party”].) No such agreement exists here. In contrast to Royal Surplus, this is purely a third-party actionwhere a party (Macario) not in contractual privity with the insurer (RLI) is contesting the insurer’scoverage decision regarding a third party (Cornerstone). Thus, Royal Surplus does not contradict RLI’sargument that it will be severely prejudiced, in precisely the manner Evid. Code § 1155 is intended toprevent, if it is forced to litigate RLI’s claim in the same case as the Mahrts’ action against RLI’s insuredCornerstone. Finally, Macario avers that in Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d1266, “the court acknowledged that insurers could be included in actions where their involvement in theunderlying issues was significant.” (Oppo at p. 15.) Omaha involves a lawsuit by landlords againsttenants who had damaged the landlords’ rental property, as well as against Omaha, the tenants’ insurer.(Id. at p. 1269.) Omaha demurred on the basis that the tenants “were not parties to the contract ofinsurance and, therefore, had no standing to pursue a claim for declaratory relief.” (Id. at pp. 1269-1270.)(That is, on the same basis upon which RLI demurs to Macario’s first cause of action.) The trial courtoverruled the demurrer; correctly, as the reviewing court determined, because just as in Royal Surplus, theinsurance policy was “for the mutual benefit of landlord and tenant.” (Id. at p. 1269.) Therefore thelandlords were “the intended beneficiaries of the insurance policy. . . . In such instances, an action fordeclaratory relief is appropriate.” (Id. at pp. 1269, 1270.) However, this did not satisfy Omaha, which insisted that despite being in contractual privity withthe landlords, “it would suffer prejudice should the lawsuit against both itself and the [tenants] goforward.” (Omaha, supra, 209 Cal.App.3d at p. 1270.) As RLI has done here, Omaha had moved in thetrial court, as an alternative to sustaining their demurrer, to sever the declaratory relief action against themfrom the tort lawsuit against the tenants. (Ibid.) The trial court had denied that motion. After severallitigation maneuvers not relevant here, the reviewing court agreed that the actions needed to be severed inorder to avoid prejudice to Omaha, and issued a writ of mandate ordering the trial court to grant themotion to sever. (Id. at p. 1275.) As with Royal Surplus, the reviewing court’s ruling on the demurrer was based on the point thatthis was a first-party lawsuit; that is, that the plaintiffs were in contractual privity with the insurer. Again,that is not the situation here. However, as discussed next, the Omaha’s holding that “the trial courtabused its discretion when it denied Omaha’s motion to sever,” is highly relevant here. (Omaha, supra,209 Cal.App.3d at p. 1271.) C. Macario’s cross-complaint for equitable indemnity is severed from the underlying action. “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will beconducive to expedition and economy, may order a separate trial of any cause of action, including a causeof action asserted in a cross-complaint.” (CCP § 1048(b).) “[A] complaint and a cross-complaint are, formost purposes, treated as independent actions. [Citations.] It is within the discretion of the court to ordera severance and separate trials of such actions [citations], and the exercise of such discretion will not beinterfered with on appeal except when there has been a manifest abuse thereof.” (McLellan v. McLellan(1972) 23 Cal.App.3d 343, 353, citing McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727.) RLI requests that in the event the Court does not dismiss Macario’s cross-complaint altogether, itsever the cross-action from the underlying lawsuit by the Mahrts against RLI’s insured Cornerstone.(MPA at pp. 18-19; Reply at p. 9.) Macario expresses a preference for proceeding in the current action,but provides no authority for the proposition that he is entitled to do so. (Oppo at p. 15.) His commentthat “without the inclusion of RLI in this action, there is . . . the possibility that the rights of Macario maybe essentially adjudicated in a proceeding in which he is not a participant (i.e. – the federal court action)”presumably refers to the point that his cause of action for declaratory relief in the instant case is anattempt to resolve the same question that is before the Eastern District in the RLI Insurance v. Cornerstonecase: whether the RLI/Cornerstone insurance policy is active and enforceable. But as discussed above, thatis between RLI and Cornerstone irrespective of what court it is litigated in or who else is a party to thelitigation. The Court agrees that the severance RLI requests is the best way to permit Macario to go forwardwith an action for equitable indemnity without prejudicing RLI by disclosing to the Mahrt v. Cornerstonejury that it is Cornerstone’s insurer. (Evid. Code § 1155.) Accordingly, the Court orders that Macario’scross-complaint against RLI be severed, and proceed as a separate lawsuit.VI. Conclusion The demurrer to the first cause of action is sustained without leave to amend. The demurrer to thesecond cause of action is sustained with leave to amend. Macario’s cross-complaint is severed.
Ruling
HYSON vs SELECT PORTFOLIO SERVICING INC.
Aug 31, 2024 |CVPS2403212
HYSON vs SELECT PORTFOLIO Motion to be Relieved as Counsel forCVPS2403212SERVICING INC. LINDA HYSONTentative Ruling: Grant. Moving counsel is ordered to lodge with the Court within 5 days a revisedproposed order including all upcoming hearing dates. Counsel is reminded that they are not relieveduntil they have filed with the Court proof of service of the signed order upon their client.
Ruling
KATRINA ALLEN, ET AL. VS AMCAL LAS BRISAS FUND, LP, ET AL.
Sep 03, 2024 |23STCV23501
Case Number: 23STCV23501 Hearing Date: September 3, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT KATRINA ALLEN, etc., et al., Plaintiffs, vs. AMCAL LAS BRISAS FUND, LP, etc., et al. Defendants. CASE NO.: 23STCV23501 [TENTATIVE] ORDER RE: MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, FORM INTERROGATORIES, SET ONE, REQUESTS FOR PRODUCTION, SET ONE, AND FOR AN ORDER THAT THE TRUTH OF THE MATTERS SPECIFIED IN REQUESTS FOR ADMISSIONS, SET ONE BE DEEMED ADMITTED Date: September 3, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendants, Amcal Las Brisas Fund, LP, Amcal Multi-Housing, Inc., Las Palmas Foundation, The John Stewart Company, Percival Joseph Vaz (collectively, Defendants) RESPONDING PARTY: None The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) BACKGROUND This action arises out of a real property habitability claim for rental property. On June 20, 2024, Defendants filed motions to compel responses by Plaintiffs to certain discovery requests (collectively, the Discovery Requests), consisting of special interrogatories, set one(SIs); form interrogatories, set one (FIs); and Requests for Production, set one (RFPs), and for an order that the truth of the matters specified in Requests for Admissions, set one (RFAs) be deemed admitted (collectively, the Motions). Plaintiff also seeks an award of monetary sanctions in the amount of $2,460 as to each motion, except as to the RFAs, where the request is for $3,060. DISCUSSION Legal Standard Interrogatories Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2030.290, subd. (a).) The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.) Requests for Admissions When a party fails to serve a timely response to an RFA, the party propounding the RFA may move for an order to deem the genuineness of any documents and the truth of any matters specified in the requests admitted. (Code Civ. Proc., § 2033.280, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2033.280, subd. (a).) Requests for Production of Documents When a party fails to serve a timely response to an RFP, the party making the demand may move for an order compelling a response thereto. (CCP § 2031.300, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2031.300, subd. (a).) Defendants Motions In the Motions, Defendants seek orders compelling Plaintiffs to provide responses to the Discovery Requests. Defendants served the Discovery Requests on Plaintiffs on January 18, 2024. (Declaration of Harry Safarian[1] (Safarian Decl.), ¶¶ 4-6.) Although they received two extensions of time, as of the filing of the Motions Plaintiffs had failed to provide any response to the Discovery Requests, the final deadline for which was March 27, 2024. (Id., ¶¶ 5-7.) Defendants request that all admissions be deemed admitted, all objections be waived, and Plaintiffs be compelled to answer all Discovery Requests, and produce all documents responsive to the RFPs. Defendants Motions are unopposed and they are GRANTED. The Court orders that Plaintiffs serve Code-compliant, full and verified answers to the SIs, FIs and RFPs, without objection, on Defendants within twenty days of the date of this Order. All documents responsive to the RFPs are ordered to be produced to Defendants within twenty days of the date of this Order. The Court further orders that the RFAs are deemed admitted. The Court also finds that monetary sanctions are warranted against Plaintiffs in the reasonable sum of $1,440, consisting of 2 hours total for the preparation of the Motions at $600 per hour, plus four $60 filing fees. This amount is to be paid to Defendants within twenty days of the date of this Order. Moving party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 3d day of September, 2024 Hon. Holly J. Fujie Judge of the Superior Court [1] A separate declaration of Harry Safarian was submitted with each motion; however, each reference to service is almost identical. Therefore, the Court refers to the Safarian Decl. in the singular. Although the motion to compel as to the SIs referenced the service of the FIs, the Court understands that the declaration is related to the SIs.
Ruling
NEELY vs DUNN, JR.
Sep 01, 2024 |CVSW2311070
DEMURRER TO COMPLAINT BY FIRSTCVSW2311070 NEELY VS DUNN, JR.AMERICAN TITLE COMPANYTentative Ruling: SUSTAN the unopposed demurrer without leave to amend. GRANTthe request for judicial notice.
Ruling
R Scott Turicchi et al vs Randy Quaid et al
Sep 09, 2024 |Judge Colleen K. Sterne |19CV06268
Tentative not yet posted.
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