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Electronically FILED by Superior Court of California, County of Los Angeles on 06/19/2020 12:20 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Boyadzhyan,Deputy Clerk
1 WILLIAM G. MALCOLM #129271
BRIAN S. THOMLEY #275132
2 MALCOLM ♦ CISNEROS
A Law Corporation
3 2112 Business Center Drive, Second Floor
Irvine, California 92612
4 Telephone: (949) 252-9400
Telecopier: (949) 252-1032
5
Counsel for U.S. Bank National Association, as Trustee for the RMAC Trust, Series 2016-CTT
6 and Rushmore Loan Management Services, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF LOS ANGELES – VAN NUYS COURTHOUSE EAST
10
11 BETH S. FIELD, an individual Case No. LC107408
12 Plaintiff Hon. Theresa M. Traber
13 vs. SEPARATE STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF
14 U.S. BANK NATIONAL ASSOCIATION, MOTION FOR SUMMARY JUDGMENT
as Trustee for the RMAC Trust, Series
15 2016-CTT; MTC FINANCIAL INC., a (Notice of Motion and Motion for Summary
16 California corporation, dba Trustee Corps; Judgment and Declarations of Brian S. Thomley,
CAPITAL ONE, NATIONAL Deeana Hamilton and Cathe Cole-Sherburn filed
17 ASSOCIATION, as Successor in Interest concurrently herewith)
Upon Merger with ING Bank, FSB;
18 RUSHMORE LOAN MANAGEMENT Date: September 21, 2020
SERVICES LLC, a Delaware limited Time: 8:30 a.m.
19
liability company; and DOES 1 through 50, Dept: U
20 Inclusive,
Complaint Filed: June 19, 2018
21 Defendants. Trial Date: November 30, 2020
22
23 Defendants U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
24 RMAC TRUST, SERIES 2016-CTT and RUSHMORE LOAN MANAGEMENT SERVICES,
25 LLC (collectively, “Defendants”) submit this Separate Statement of Undisputed Facts in support
26 of their Motion for Summary Judgment.
27 ///
28 ///
1
SEPARATE STATEMENT OF UNDISPUTED FACTS
1 SEPARATE STATEMENT OF UNDISPUTED FACTS
2
DEFENDANTS’ FACTS AND EVIDENCE PLAINTIFF’S FACTS AND EVIDENCE
3
4
1. On or about September 27, 2007,
5 Plaintiff Beth S. Field (“Field” or
“Plaintiff”) obtained a loan from ING
6 Bank, FSB (“ING”) by executing a
promissory note (“Note”) in the principal
7 amount of $1,120,000.00.
8
Verified Second Amended Complaint for:
9 1. Set Aside Foreclosure Sale; 2. Breach
of Written Contract; 3. Cancellation of
10 Trustee’s Deed; 4. Quiet Title; 5.
Accounting (“SAC”) ¶ 8; Declaration of
11 Brian S. Thomley (“Decl. Thomley”) ¶ 2
12 & Ex. A No. 1; Decl. Thomley ¶ 3 & Ex.
B No. 1; Declaration of Deeana
13 Hamilton (“Decl. Hamilton”) ¶ 2 & Ex.
A.
14
15 2. The Note was secured by a Deed of Trust
16 encumbering the real property located at
4370 Park Monte Nord, Calabasas,
17 California 91302 (“Property”).
18 SAC ¶¶ 1, 9; Decl. Thomley ¶ 2 & Ex. A
No. 2; Decl. Thomley ¶ 3 & Ex. B No. 2;
19 Decl. Hamilton ¶ 3 & Ex. B.
20
21 3. The Deed of Trust names ING as
beneficiary and Fidelity National Title
22 Company (“Fidelity”) as trustee.
23
SAC ¶ 9; Decl. Thomley ¶ 2 & Ex. A No.
24 2; Decl. Thomley ¶ 3 & Ex. B No. 2;
Decl. Hamilton ¶ 3 & Ex. B.
25
26
27
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2
SEPARATE STATEMENT OF UNDISPUTED FACTS
1
4. Defendant Capital One, N.A. (“Capital
2 One”) is the successor by merger to ING
3 as Lender.
4 SAC ¶ 4; Decl. Thomley ¶ 2 & Ex. A No.
3; Decl. Thomley ¶ 3 & Ex. B No. 3;
5 Decl. Hamilton ¶ 4.
6
7 5. Capital One acquired beneficial interest
in the Deed of Trust from ING.
8
Decl. Hamilton ¶ 4.
9
10
6. At all relevant times prior to December
11 1, 2017, Capital One serviced the loan.
12 Decl. Thomley ¶ 2 & Ex. A No. 10; Decl.
Thomley ¶ 3 & Ex. B No. 10; Decl.
13 Hamilton ¶ 4.
14
15 7. Capitol One substituted Trustee Corps in
place of Fidelity as trustee of the Deed of
16 Trust.
17 Decl. Sherburn ¶ 2 & Ex. A.
18
19 8. On or about January 8, 2014, Daron
Bolat, Assistant Vice President of
20 Capital One executed a Substitution of
21 Trustee and acknowledged his signature
before a notary public.
22
Decl. Thomley ¶ 2 & Ex. A Nos. 8, 9;
23 Decl. Thomley ¶ 3 & Ex. B Nos. 8, 9;
Decl. Sherburn Ex. A.
24
25
26
27
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3
SEPARATE STATEMENT OF UNDISPUTED FACTS
1
9. On February 7, 2014, MTC Financial
2 dba Trustee Corps (“Trustee Corps”)
3 recorded a Substitution of Trustee in the
Official Records of the Los Angeles
4 County Recorder’s Office.
5 SAC ¶ 10; Decl. Thomley ¶ 2 & Ex. A
No. 9; Decl. Thomley ¶ 3 & Ex. B No. 9;
6
Declaration of Cathe Cole-Sherburn
7 (“Decl. Sherburn”) ¶ 2 & Ex. A.
8
10. The Substitution of Trustee contains the
9 name of the original lender (ING),
trustee (Fidelity) and borrower (Field),
10
the book and page where the Deed of
11 Trust is recorded (Instrument No.
20072266588), and the name and
12 address of the successor trustee (Trustee
Corps, 17100 Gillette Ave., Irvine, CA
13 92614).
14
Decl. Sherburn ¶ 2 & Ex. A.
15
16 11. In or about April of 2015, Field and
Capital One executed a written Mortgage
17 Loan Modification Agreement which
18 modified the loan.
19 Decl. Hamilton ¶ 5 & Ex. C.
20
12. Thereafter, Field defaulted on her
21
monthly payments on the loan.
22
SAC ¶ 12; Decl. Hamilton ¶ 6.
23
24
13. The loan is due for the September 1,
25 2015 payment.
26 Decl. Hamilton ¶ 6.
27
28
4
SEPARATE STATEMENT OF UNDISPUTED FACTS
1
14. On June 9, 2016, Trustee Corps recorded
2 a Notice of Default and Election to Sell
3 Under Deed of Trust (“Notice of
Default”), stating that Field had
4 defaulted on her payments on the loan
and that the loan was due for the
5 September 1, 2015 payment.
6
SAC ¶ 12; Decl. Sherburn ¶ 3 & Ex. B.
7
8 15. On December 1, 2017, Capital One
transferred servicing of the loan to
9 Rushmore.
10
SAC ¶ 17; Decl. Hamilton ¶ 7.
11
12 16. On or about December 12, 2017, Capital
One transferred beneficial interest in the
13 Deed of Trust to U.S. Bank by executing
14 an Assignment of Deed of Trust.
15 SAC ¶ 14; Decl. Hamilton ¶ 7 & Ex. D.
16
17 17. On November 6, 2017, prior to the
transfer of servicing of the loan to
18 Rushmore, Field had submitted a
complete application for a loan
19 modification to Capital One.
20 SAC ¶ 17; Decl. Hamilton ¶ 8 & Ex. E.
21
22 18. Capitol One never issued a written
decision on the application.
23
Decl. Thomley ¶ 4 & Ex. C Nos. 9, 10;
24 Decl. Thomley ¶ 5 & Ex. D Nos. 9, 10;
25 Decl. Thomley ¶ 6 & Ex. E Nos. 9, 10;
Decl. Thomley ¶ 7 & Ex. F Nos. 9, 10;
26 Decl. Hamilton ¶ 8 & Ex. E.
27
28
5
SEPARATE STATEMENT OF UNDISPUTED FACTS
1
19. On December 27, 2017, after the transfer
2 of servicing of the loan to Rushmore,
3 Marshall Field, who is apparently Field’s
husband, called Rushmore to inquire
4 about the status of the review.
Rushmore advised him that it had
5 received a letter from Capitol One that
the application was complete. Rushmore
6
advised him that it was still reviewing
7 the application.
8 Decl. Hamilton ¶ 9 & Ex. E.
9
20. At no time did Rushmore request that
10
Field begin a new loan modification
11 review.
12 Decl. Hamilton ¶ 9.
13
14 21. On or about December 28, 2017,
Rushmore determined that Field was
15 ineligible for a modification of the loan
because her income was insufficient.
16
Decl. Hamilton ¶ 10 & Ex. F.
17
18
22. On or about the same day, Rushmore
19 sent Field a letter informing her of the
decision.
20
Decl. Hamilton ¶ 10 & Ex. F.
21
22
23. On May 29, 2018, Trustee Corps
23 recorded a Notice of Trustee’s Sale,
scheduling a trustee’s sale of the
24
Property for June 26, 2018.
25
SAC ¶ 15; Decl. Sherburn ¶ 4 & Ex. C.
26
27
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6
SEPARATE STATEMENT OF UNDISPUTED FACTS
1
24. On June 26, 2018, Trustee Corps
2 conducted a trustee’s sale of the Property,
3 and U.S. Bank acquired the Property.
4 SAC ¶ 20; Decl. Sherburn ¶ 5.
5
25. On July 5, 2018, Trustee Corps recorded
6
a Trustee’s Deed Upon Sale.
7
SAC ¶ 20; Decl. Sherburn ¶ 5 & Ex. D.
8
9
10 Dated: June 19, 2020
11
12 MALCOLM ♦ CISNEROS, a Law Corporation
13
By:
14 BRIAN S. THOMLEY
Attorney for U.S. Bank National
15 Association, as Trustee for the RMAC
Trust, Series 2016-CTT and Rushmore
16 Loan Management Services, LLC
17
18
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20
21
22
23
24
25
26
27
28
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SEPARATE STATEMENT OF UNDISPUTED FACTS
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 06/19/2020 12:20 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Boyadzhyan,Deputy Clerk 1 WILLIAM G. MALCOLM #129271 BRIAN S. THOMLEY #275132 2 MALCOLM ♦ CISNEROS A Law Corporation 3 2112 Business Center Drive, Second Floor Irvine, California 92612 4 Telephone: (949) 252-9400 Telecopier: (949) 252-1032 5 Counsel for U.S. Bank National Association, as Trustee for the RMAC Trust, Series 2016-CTT 6 and Rushmore Loan Management Services, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES – VAN NUYS COURTHOUSE EAST 10 11 BETH S. FIELD, an individual Case No. LC107408 12 Plaintiff Hon. Theresa M. Traber 13 vs. SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF 14 U.S. BANK NATIONAL ASSOCIATION, MOTION FOR SUMMARY JUDGMENT as Trustee for the RMAC Trust, Series 15 2016-CTT; MTC FINANCIAL INC., a (Notice of Motion and Motion for Summary 16 California corporation, dba Trustee Corps; Judgment and Declarations of Brian S. Thomley, CAPITAL ONE, NATIONAL Deeana Hamilton and Cathe Cole-Sherburn filed 17 ASSOCIATION, as Successor in Interest concurrently herewith) Upon Merger with ING Bank, FSB; 18 RUSHMORE LOAN MANAGEMENT Date: September 21, 2020 SERVICES LLC, a Delaware limited Time: 8:30 a.m. 19 liability company; and DOES 1 through 50, Dept: U 20 Inclusive, Complaint Filed: June 19, 2018 21 Defendants. Trial Date: November 30, 2020 22 23 Defendants U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE 24 RMAC TRUST, SERIES 2016-CTT and RUSHMORE LOAN MANAGEMENT SERVICES, 25 LLC (collectively, “Defendants”) submit this Separate Statement of Undisputed Facts in support 26 of their Motion for Summary Judgment. 27 /// 28 /// 1 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 SEPARATE STATEMENT OF UNDISPUTED FACTS 2 DEFENDANTS’ FACTS AND EVIDENCE PLAINTIFF’S FACTS AND EVIDENCE 3 4 1. On or about September 27, 2007, 5 Plaintiff Beth S. Field (“Field” or “Plaintiff”) obtained a loan from ING 6 Bank, FSB (“ING”) by executing a promissory note (“Note”) in the principal 7 amount of $1,120,000.00. 8 Verified Second Amended Complaint for: 9 1. Set Aside Foreclosure Sale; 2. Breach of Written Contract; 3. Cancellation of 10 Trustee’s Deed; 4. Quiet Title; 5. Accounting (“SAC”) ¶ 8; Declaration of 11 Brian S. Thomley (“Decl. Thomley”) ¶ 2 12 & Ex. A No. 1; Decl. Thomley ¶ 3 & Ex. B No. 1; Declaration of Deeana 13 Hamilton (“Decl. Hamilton”) ¶ 2 & Ex. A. 14 15 2. The Note was secured by a Deed of Trust 16 encumbering the real property located at 4370 Park Monte Nord, Calabasas, 17 California 91302 (“Property”). 18 SAC ¶¶ 1, 9; Decl. Thomley ¶ 2 & Ex. A No. 2; Decl. Thomley ¶ 3 & Ex. B No. 2; 19 Decl. Hamilton ¶ 3 & Ex. B. 20 21 3. The Deed of Trust names ING as beneficiary and Fidelity National Title 22 Company (“Fidelity”) as trustee. 23 SAC ¶ 9; Decl. Thomley ¶ 2 & Ex. A No. 24 2; Decl. Thomley ¶ 3 & Ex. B No. 2; Decl. Hamilton ¶ 3 & Ex. B. 25 26 27 28 2 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 4. Defendant Capital One, N.A. (“Capital 2 One”) is the successor by merger to ING 3 as Lender. 4 SAC ¶ 4; Decl. Thomley ¶ 2 & Ex. A No. 3; Decl. Thomley ¶ 3 & Ex. B No. 3; 5 Decl. Hamilton ¶ 4. 6 7 5. Capital One acquired beneficial interest in the Deed of Trust from ING. 8 Decl. Hamilton ¶ 4. 9 10 6. At all relevant times prior to December 11 1, 2017, Capital One serviced the loan. 12 Decl. Thomley ¶ 2 & Ex. A No. 10; Decl. Thomley ¶ 3 & Ex. B No. 10; Decl. 13 Hamilton ¶ 4. 14 15 7. Capitol One substituted Trustee Corps in place of Fidelity as trustee of the Deed of 16 Trust. 17 Decl. Sherburn ¶ 2 & Ex. A. 18 19 8. On or about January 8, 2014, Daron Bolat, Assistant Vice President of 20 Capital One executed a Substitution of 21 Trustee and acknowledged his signature before a notary public. 22 Decl. Thomley ¶ 2 & Ex. A Nos. 8, 9; 23 Decl. Thomley ¶ 3 & Ex. B Nos. 8, 9; Decl. Sherburn Ex. A. 24 25 26 27 28 3 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 9. On February 7, 2014, MTC Financial 2 dba Trustee Corps (“Trustee Corps”) 3 recorded a Substitution of Trustee in the Official Records of the Los Angeles 4 County Recorder’s Office. 5 SAC ¶ 10; Decl. Thomley ¶ 2 & Ex. A No. 9; Decl. Thomley ¶ 3 & Ex. B No. 9; 6 Declaration of Cathe Cole-Sherburn 7 (“Decl. Sherburn”) ¶ 2 & Ex. A. 8 10. The Substitution of Trustee contains the 9 name of the original lender (ING), trustee (Fidelity) and borrower (Field), 10 the book and page where the Deed of 11 Trust is recorded (Instrument No. 20072266588), and the name and 12 address of the successor trustee (Trustee Corps, 17100 Gillette Ave., Irvine, CA 13 92614). 14 Decl. Sherburn ¶ 2 & Ex. A. 15 16 11. In or about April of 2015, Field and Capital One executed a written Mortgage 17 Loan Modification Agreement which 18 modified the loan. 19 Decl. Hamilton ¶ 5 & Ex. C. 20 12. Thereafter, Field defaulted on her 21 monthly payments on the loan. 22 SAC ¶ 12; Decl. Hamilton ¶ 6. 23 24 13. The loan is due for the September 1, 25 2015 payment. 26 Decl. Hamilton ¶ 6. 27 28 4 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 14. On June 9, 2016, Trustee Corps recorded 2 a Notice of Default and Election to Sell 3 Under Deed of Trust (“Notice of Default”), stating that Field had 4 defaulted on her payments on the loan and that the loan was due for the 5 September 1, 2015 payment. 6 SAC ¶ 12; Decl. Sherburn ¶ 3 & Ex. B. 7 8 15. On December 1, 2017, Capital One transferred servicing of the loan to 9 Rushmore. 10 SAC ¶ 17; Decl. Hamilton ¶ 7. 11 12 16. On or about December 12, 2017, Capital One transferred beneficial interest in the 13 Deed of Trust to U.S. Bank by executing 14 an Assignment of Deed of Trust. 15 SAC ¶ 14; Decl. Hamilton ¶ 7 & Ex. D. 16 17 17. On November 6, 2017, prior to the transfer of servicing of the loan to 18 Rushmore, Field had submitted a complete application for a loan 19 modification to Capital One. 20 SAC ¶ 17; Decl. Hamilton ¶ 8 & Ex. E. 21 22 18. Capitol One never issued a written decision on the application. 23 Decl. Thomley ¶ 4 & Ex. C Nos. 9, 10; 24 Decl. Thomley ¶ 5 & Ex. D Nos. 9, 10; 25 Decl. Thomley ¶ 6 & Ex. E Nos. 9, 10; Decl. Thomley ¶ 7 & Ex. F Nos. 9, 10; 26 Decl. Hamilton ¶ 8 & Ex. E. 27 28 5 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 19. On December 27, 2017, after the transfer 2 of servicing of the loan to Rushmore, 3 Marshall Field, who is apparently Field’s husband, called Rushmore to inquire 4 about the status of the review. Rushmore advised him that it had 5 received a letter from Capitol One that the application was complete. Rushmore 6 advised him that it was still reviewing 7 the application. 8 Decl. Hamilton ¶ 9 & Ex. E. 9 20. At no time did Rushmore request that 10 Field begin a new loan modification 11 review. 12 Decl. Hamilton ¶ 9. 13 14 21. On or about December 28, 2017, Rushmore determined that Field was 15 ineligible for a modification of the loan because her income was insufficient. 16 Decl. Hamilton ¶ 10 & Ex. F. 17 18 22. On or about the same day, Rushmore 19 sent Field a letter informing her of the decision. 20 Decl. Hamilton ¶ 10 & Ex. F. 21 22 23. On May 29, 2018, Trustee Corps 23 recorded a Notice of Trustee’s Sale, scheduling a trustee’s sale of the 24 Property for June 26, 2018. 25 SAC ¶ 15; Decl. Sherburn ¶ 4 & Ex. C. 26 27 28 6 SEPARATE STATEMENT OF UNDISPUTED FACTS 1 24. On June 26, 2018, Trustee Corps 2 conducted a trustee’s sale of the Property, 3 and U.S. Bank acquired the Property. 4 SAC ¶ 20; Decl. Sherburn ¶ 5. 5 25. On July 5, 2018, Trustee Corps recorded 6 a Trustee’s Deed Upon Sale. 7 SAC ¶ 20; Decl. Sherburn ¶ 5 & Ex. D. 8 9 10 Dated: June 19, 2020 11 12 MALCOLM ♦ CISNEROS, a Law Corporation 13 By: 14 BRIAN S. THOMLEY Attorney for U.S. Bank National 15 Association, as Trustee for the RMAC Trust, Series 2016-CTT and Rushmore 16 Loan Management Services, LLC 17 18 19 20 21 22 23 24 25 26 27 28 7 SEPARATE STATEMENT OF UNDISPUTED FACTS