Preview
1 Jeffrey H. Lowenthal (State Bar No. 111763)
Edward Egan Smith (State Bar No. 169792)
2 Matthew W. Delbridge (State Bar No. 343636)
STEYER LOWENTHAL BOODROOKAS
3 ALVAREZ & SMITH LLP
235 Pine Street, 15th Floor
4 San Francisco, California 94104
Telephone: (415) 421-3400
5 Facsimile: (415) 421-2234
E-mail: jlowenthal@steyerlaw.com
6 esmith@steyerlaw.com
mdelbridge@steyerlaw.com
7
Attorneys for Defendant
8 United States Real Estate Corporation
9
Julian Karl Bach (State Bar No. 162421)
10 LAW OFFICE OF JULIAN BACH
7911 Warner Avenue
11 Huntington Beach, CA 92647
Telephone: (714) 848-5085
12 E-mail: julianbach@sbcglobal.net; julian@jbachlaw.com
13 Co-counsel for Defendant
United States Real Estate Corporation
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 FOR THE COUNTY OF SANTA CRUZ
17
18 JASON NEEL, Case No. 22CV01758
19 Plaintiff, DEFENDANT UNITED STATES REAL
ESTATE CORPORATION’S ANSWER TO
20 v. FIRST AMENDED COMPLAINT
21 SUPERIOR LOAN SERVICING, ASSET
DEFAULT MANAGEMENT, INC.,
22 UNITED STATES REAL ESTATE Action Filed: August 10, 2021 [Alameda Superior]
CORPORATION and DOES 1 through Trial Date: Not Assigned
23 100, inclusive,
24 Defendants.
25
26
27
28
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 Defendant United States Real Estate Corporation (“Defendant”) hereby answers the First
2 Amended Complaint (“Complaint”) of Plaintiff Jason Neel (“Plaintiff”). Pursuant to California
3 Code of Civil Procedure section 431.30, Defendant hereby generally denies each and every
4 allegation in the Complaint alleged as against this answering Defendant.
5 AFFIRMATIVE DEFENSES
6 As separate affirmative defenses to the Complaint, and the whole thereof, Defendant
7 alleges and asserts as follows:
8 FIRST AFFIRMATIVE DEFENSE
9 (Failure to State a Cause of Action)
10 1. The Complaint fails to state a claim against Defendant upon which any of the
11 relief sought by Plaintiff can be granted in law or equity, including, without limitation,
12 cancelation of the Deed of Trust given by Plaintiff as borrower and trustor, in favor of Cross-
13 Complainant as lender and beneficiary, recorded at against that certain real property located at
14 144 Palo Verde Terrace, Santa Cruz, California (“Subject Property”) on September 9, 2020, as
15 Document No. 2020-0035270 in the official records of Santa Cruz County (“USREC Deed of
16 Trust”).
17 SECOND AFFIRMATIVE DEFENSE
18 (Statute of Limitations)
19 2. Defendant is informed and believes that each of Plaintiff’s causes of action against
20 Defendant is barred by the applicable statute of limitations including, but not limited to,
21 California Code of Civil Procedure sections 318, 319, 320, 322, 328, 328.5, 336, 336(a), 336(b),
22 337, 337(1), 337(2), 337(3), 337a, 338, 338(a) 338(b), 338(d), 338(g), 338(j), 338(m), 338(n),
23 339, 339(1), 339(3) 340, 340(a), 340(b), 340(c), 340(d), 340(e), 343, 352, 352.1, California
24 Business & Professions Code section 17208, Welfare & Institutions Code section 15657.7, and
25 Title 15 of the United States Code, section 1640(e).
26 THIRD AFFIRMATIVE DEFENSE
27 (Laches)
28 3. Defendant is informed and believes that the Complaint, and each purported cause
2
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 of action contained therein, is barred by the doctrine of laches.
2 FOURTH AFFIRMATIVE DEFENSE
3 (Estoppel)
4 4. Defendant is informed and believes that Plaintiff is estopped from asserting the
5 claims alleged in the Complaint by, among other things, Plaintiff’s acts, omissions and conduct,
6 and the acts, omissions and conduct of Plaintiff’s agents, employees and representatives,
7 including appointment of Cody Molica as Plaintiff’s attorney-in-fact and guardian ad litem.
8 FIFTH AFFIRMATIVE DEFENSE
9 (Failure to Mitigate Losses)
10 5. Defendant is informed and believes that Plaintiff’s alleged loss, injuries and/or
11 damages, which are denied, were aggravated by Plaintiffs’ failure to use reasonable diligence to
12 mitigate them.
13 SIXTH AFFIRMATIVE DEFENSE
14 (Waiver and Release)
15 6. Defendant is informed and believes that Plaintiff is barred from any recovery
16 under the Complaint because Plaintiff has voluntarily and knowingly waived and released the
17 right to maintain the claims filed in this case by, among other things, Plaintiff’s acts, omissions
18 and conduct, and the acts, omissions and conduct of their agents, employees and representatives.
19 SEVENTH AFFIRMATIVE DEFENSE
20 (Acts in Concert and with Approval)
21 7. If any of the acts or omissions alleged in the Complaint was committed by the
22 defendants, which is denied, Defendant is informed and believes that Plaintiff directly or
23 indirectly acted in concert with such persons or knowingly ratified or approved such conduct, and
24 are therefore precluded from any recovery from or against Defendant based thereon.
25 EIGHTH AFFIRMATIVE DEFENSE
26 (Assumption of Risk)
27 8. Defendant is informed and believes that Plaintiff had knowledge of the risks and
28 hazards inherent in the events and activities which took place at the times set forth in the
3
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 Complaint, as well as the magnitude of those risks and hazards, and thereafter knowingly and
2 willingly assumed and accepted those risks and hazards.
3 NINTH AFFIRMATIVE DEFENSE
4 (Lack of Standing)
5 9. Defendant is informed and believes that Plaintiff lacks standing to assert the
6 matters alleged in the Complaint against Defendant.
7 TENTH AFFIRMATIVE DEFENSE
8 (Statute of Frauds)
9 10. Defendant is informed and believes that each of Plaintiff’s causes of action set
10 forth in the Complaint are barred by the statute of frauds.
11 ELEVENTH AFFIRMATIVE DEFENSE
12 (Offset)
13 11. Defendant is informed and believes that they have incurred damages and expenses
14 in an amount to be ascertained and applied as offset against Plaintiff’s claims, without
15 acknowledging that such claims have merit or provide any basis for recovery.
16 TWELFTH AFFIRMATIVE DEFENSE
17 (Unclean Hands)
18 12. Defendant is informed and believes that Plaintiff has “unclean hands” with regard
19 to the relief sought in the Complaint, therefore, Plaintiff is barred from obtaining such relief.
20 THIRTEENTH AFFIRMATIVE DEFENSE
21 (Consent and Ratification)
22 13. Defendant is informed and believes that Plaintiff has ratified, acknowledged,
23 consented to, or acquiesced in the rights of the Defendant challenged by the Complaint based on,
24 among other things, the consent, ratification and acquiescence of Plaintiff to the subject loan
25 transaction and USREC Deed of Trust through the Power of Attorney (Special), dated May 28,
26 2020, signed by Plaintiff and acknowledged before a duly commissioned California notary public
27 on May 28, 2020 (“POA”), and recorded on September 9, 2020, as Document No. 2020-0035269
28 in the official records of Santa Cruz County.
4
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Bona Fide Encumbrancer)
3 14. Defendant is informed and believes that Plaintiff’s claims are barred because
4 Defendant is a good faith bona fide encumbrancer for value under the USREC Deed of Trust,
5 without notice, who took free and clear of Plaintiff’s claims according to California law,
6 including but not limited to, California Civil Code section 1107.
7 FIFTEENTH AFFIRMATIVE DEFENSE
8 (Good Faith)
9 15. Defendant is informed and believes that Plaintiff’s claims are barred because
10 Defendant’s actions were proper and legal and Defendant acted at all times in good faith and
11 without malice.
12 SIXTEENTH AFFIRMATIVE DEFENSE
13 (Unjust Enrichment)
14 16. Defendant is informed and believes that granting Plaintiff’s demands set forth in the
15 Complaint would result in Plaintiff receiving relief, money or valuable property interests beyond
16 anything Plaintiff is entitled to receive, including Defendant’s funding of the subject loan secured
17 by the USREC Deed of Trust, the right to which relief is hereby denied.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 (No Reliance)
20 17. Defendant is informed and believes that Plaintiff did not rely on any act, omission,
21 conduct, or statement of Defendant.
22 EIGHTEENTH AFFIRMATIVE DEFENSE
23 (Outside of Scope of Agency)
24 18. Defendant is informed and believes that any of the acts or omissions alleged in the
25 Complaint committed by its agents or representatives, which are hereby denied, was outside the
26 scope of the authority of those agents or representatives and was neither authorized nor ratified by
27 Defendant, nor did Defendant create ostensible authority for such conduct.
28
5
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Privilege)
3 19. Defendant is informed and believes that the acts and omissions alleged in
4 Plaintiffs’ Complaint were privileged by, among other things, Civil Code section 47.
5 TWENTIETH AFFIRMATIVE DEFENSE
6 (Quiet Title)
7 20. Defendant is informed and believes that Plaintiff’s claims herein are barred by
8 Plaintiff’s failure to comply with California Code of Civil Procedure section 760.010, et seq.
9 TWENTY-FIRST AFFIRMATIVE DEFENSE
10 (No Cancellation)
11 21. Defendant is informed and believes that Plaintiff’s claims herein are barred by
12 Plaintiff’s failure to allege facts establishing the right to cancellation of Defendant’s security
13 interest in the USREC Deed of Trust under California Civil Code section 3412.
14 TWENTY-SECOND AFFIRMATIVE DEFENSE
15 (Lack of Equity)
16 22. Defendant is informed and believes that Plaintiff’s claims herein are barred
17 because Plaintiff has not done equity with respect to the matters alleged in the Complaint, among
18 other things, based on Plaintiff’s failure to tender and return the loan proceeds funded by
19 Defendant under the USREC Deed of Trust.
20 TWENTY-THIRD AFFIRMATIVE DEFENSE
21 (Issue Preclusion)
22 23. Defendant is informed and believes that some or all of Plaintiff’s claims herein are
23 barred by the preclusive effect of the complete adjudication of issues asserted in the Complaint,
24 including the prior appointment and authority of Cody Molica as Plaintiff’s agent and guardian ad
25 litem in proceedings before this Court.
26 TWENTY-FOURTH AFFIRMATIVE DEFENSE
27 (Judicial Estoppel)
28 24. Defendant is informed and believes that some or all of Plaintiff’s claims herein are
6
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 barred because Plaintiff is estopped to deny the authority of his duly appointed attorney-in-fact
2 under the POA by Plaintiff’s prior arguments, allegations, positions and pleadings in one or more
3 actions before this Court.
4 TWENTY-FIFTH AFFIRMATIVE DEFENSE
5 (Equitable Subrogation)
6 25. Defendant is entitled to a judgment enforcing its right to be equitably subrogated
7 to all liens, encumbrances, and obligations secured against or encumbering the Subject Property
8 that were paid off in full by Defendant’s loan proceeds funded under the USREC Deed of Trust.
9 Defendant does not intend to waive the lien of the USREC Deed of Trust or violate the
10 one action rule set forth in Code of Civil Procedure section 726 by asserting the alternative
11 affirmative defenses herein. Defendant reserves the right to amend this answer to assert
12 additional defenses that may become legally available or apparent during discovery and
13 preparation for trial.
14 WHEREFORE, Defendant prays for judgment as follows:
15 1. That Plaintiff take nothing;
16 2. For a judgment quieting title in Defendant under USREC Deed of Trust as a first
17 lien against the Subject Property as of September 9, 2020;
18 3. Alternatively, for imposition of a lien by equitable subrogation;
19 4. For costs of suit, including, were authorized, reasonable attorney’s fees; and
20 5. For such other and further relief as the Court shall deem just and proper.
21
Dated: December 12, 2022 STEYER LOWENTHAL BOODROOKAS
22 ALVAREZ & SMITH LLP
23
By:______________________________
24 Jeffrey H. Lowenthal
Edward Egan Smith
25 Matthew W. Delbridge
Attorneys for Defendant
26 United States Real Estate Corporation
27
28
7
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 Dated: December 13, 2022 LAW OFFICE OF JULIAN BACH
2
3 /s/ Julian Karl Bach
By:______________________________
Julian Karl Bach
4 Attorneys for Defendant and Cross-
Complainant United States Real Estate
5 Corporation
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
1989513.3 - NATC.JNEEL
1 PROOF OF SERVICE
Jason Neel v. Superior Loan Servicing, et al.
2 Santa Cruz Superior Court Case No. 22CV01758
3 I declare that I am over the age of eighteen years and that I am not a party to this action.
I am an employee of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, and my business
4 address is 235 Pine Street, 15th Floor, San Francisco, CA 94104.
5 On the date set forth below, I served the following document(s):
6 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED
COMPLAINT
7
on the interested parties in this action as follows:
8
Thornton Davidson Michael T. Beuselinck
9 Pamela Simmons Michael Beuselinck P.C.
Thornton Davidson, P.C. 490 43rd Street, #37
10 1195 W. Shaw Lane, Suite A Oakland, CA 94609
Fresno, CA 93711 Email: mike@lawmtb.com
11 Ph: 559-476-5064 Ph: (925) 800-3032
Fax: 559-421-0368 [Attorneys for CNA Equity Group,
12 Email: thornton@thorntondavidsonlaw.com Inc. [erroneously sued as CNA
pamela@pamelaw.com Equities Group, LLC]
13 [Attorneys for Plaintiff Jason Neel]
14
Julian Karl Bach
15 Law Office of Julian Bach
7911 Warner Avenue
16 Huntington Beach, CA 92647
Telephone: (714) 848-5085
17 E-mail: julianbach@sbcglobal.net;
julian@jbachlaw.com
18
[Co-counsel for Defendant United States Real
19 Estate Corporation]
20
21 BY ELECTRONIC TRANSMISSION. I caused a true and correct copy of the
aforementioned document to be transmitted to each of the parties at the electronic
22 notification address last given by said party on any document which he or she has filed
in this action and served upon this office.
23
BY ELECTRONIC TRANSMISSION. Per the Court’s “Electronic Filing and
24 Service Standing Order”, I caused the documents to be sent to the persons at the email
addresses listed with the Court in this matter.
25
BY FILE & SERVEXPRESS. I caused such document\(s\) to be electronically
26 served via File & ServeXpress on all interested parties at the email addresses listed
with the Court in this matter.
27
BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED. I am readily familiar
28 with the practice for collection and processing of correspondence for mailing with the
1
PROOF OF SERVICE
1908391.1 - NATC.JNEEL
1 U.S. Postal Service, to wit, that correspondence will be deposited with the U.S. Postal
Service this same day in the ordinary course of business. I sealed said envelope and
2 placed it for collection and mailing following ordinary business practices.
3 BY MAIL. I am readily familiar with my firm's practice for collection and processing
of correspondence for mailing with the U.S. Postal Service, to wit, that correspondence
4 will be deposited with the U.S. Postal Service this same day in the ordinary course of
business. I sealed said envelope and placed it for collection and mailing following
5 ordinary business practices.
6 BY HAND DELIVERY. I caused such envelope to be delivered by hand to the offices
of the addressee following ordinary business practices.
7
BY FACSIMILE. I caused such document to be delivered by facsimile transmission,
8 pursuant to Rule 2008, to the number indicated after the address(es) noted on the
facsimile cover sheet. The telephone number of the sending facsimile machine is
9 415/421-2234.
10 BY FED EX. I caused such document to be delivered by overnight mail to the offices
of the addressees by placing it for collection by Federal Express following ordinary
11 business practices by my firm, to wit, that packages will either be picked up from my
firm by Federal Express and/or delivered by my firm to the Federal Express Office.
12
I declare under penalty of perjury under the laws of the State of California that the
13 foregoing is true and correct.
14 Executed on December 13, 2022, at San Francisco, California.
15
16 Alma Caliz
17
18
19
20
21
22
23
24
25
26
27
28
2
PROOF OF SERVICE
1908391.1 - NATC.JNEEL
Preview
1 Jeffrey H. Lowenthal (State Bar No. 111763) Edward Egan Smith (State Bar No. 169792) 2 Matthew W. Delbridge (State Bar No. 343636) STEYER LOWENTHAL BOODROOKAS 3 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 4 San Francisco, California 94104 Telephone: (415) 421-3400 5 Facsimile: (415) 421-2234 E-mail: jlowenthal@steyerlaw.com 6 esmith@steyerlaw.com mdelbridge@steyerlaw.com 7 Attorneys for Defendant 8 United States Real Estate Corporation 9 Julian Karl Bach (State Bar No. 162421) 10 LAW OFFICE OF JULIAN BACH 7911 Warner Avenue 11 Huntington Beach, CA 92647 Telephone: (714) 848-5085 12 E-mail: julianbach@sbcglobal.net; julian@jbachlaw.com 13 Co-counsel for Defendant United States Real Estate Corporation 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 FOR THE COUNTY OF SANTA CRUZ 17 18 JASON NEEL, Case No. 22CV01758 19 Plaintiff, DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO 20 v. FIRST AMENDED COMPLAINT 21 SUPERIOR LOAN SERVICING, ASSET DEFAULT MANAGEMENT, INC., 22 UNITED STATES REAL ESTATE Action Filed: August 10, 2021 [Alameda Superior] CORPORATION and DOES 1 through Trial Date: Not Assigned 23 100, inclusive, 24 Defendants. 25 26 27 28 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 Defendant United States Real Estate Corporation (“Defendant”) hereby answers the First 2 Amended Complaint (“Complaint”) of Plaintiff Jason Neel (“Plaintiff”). Pursuant to California 3 Code of Civil Procedure section 431.30, Defendant hereby generally denies each and every 4 allegation in the Complaint alleged as against this answering Defendant. 5 AFFIRMATIVE DEFENSES 6 As separate affirmative defenses to the Complaint, and the whole thereof, Defendant 7 alleges and asserts as follows: 8 FIRST AFFIRMATIVE DEFENSE 9 (Failure to State a Cause of Action) 10 1. The Complaint fails to state a claim against Defendant upon which any of the 11 relief sought by Plaintiff can be granted in law or equity, including, without limitation, 12 cancelation of the Deed of Trust given by Plaintiff as borrower and trustor, in favor of Cross- 13 Complainant as lender and beneficiary, recorded at against that certain real property located at 14 144 Palo Verde Terrace, Santa Cruz, California (“Subject Property”) on September 9, 2020, as 15 Document No. 2020-0035270 in the official records of Santa Cruz County (“USREC Deed of 16 Trust”). 17 SECOND AFFIRMATIVE DEFENSE 18 (Statute of Limitations) 19 2. Defendant is informed and believes that each of Plaintiff’s causes of action against 20 Defendant is barred by the applicable statute of limitations including, but not limited to, 21 California Code of Civil Procedure sections 318, 319, 320, 322, 328, 328.5, 336, 336(a), 336(b), 22 337, 337(1), 337(2), 337(3), 337a, 338, 338(a) 338(b), 338(d), 338(g), 338(j), 338(m), 338(n), 23 339, 339(1), 339(3) 340, 340(a), 340(b), 340(c), 340(d), 340(e), 343, 352, 352.1, California 24 Business & Professions Code section 17208, Welfare & Institutions Code section 15657.7, and 25 Title 15 of the United States Code, section 1640(e). 26 THIRD AFFIRMATIVE DEFENSE 27 (Laches) 28 3. Defendant is informed and believes that the Complaint, and each purported cause 2 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 of action contained therein, is barred by the doctrine of laches. 2 FOURTH AFFIRMATIVE DEFENSE 3 (Estoppel) 4 4. Defendant is informed and believes that Plaintiff is estopped from asserting the 5 claims alleged in the Complaint by, among other things, Plaintiff’s acts, omissions and conduct, 6 and the acts, omissions and conduct of Plaintiff’s agents, employees and representatives, 7 including appointment of Cody Molica as Plaintiff’s attorney-in-fact and guardian ad litem. 8 FIFTH AFFIRMATIVE DEFENSE 9 (Failure to Mitigate Losses) 10 5. Defendant is informed and believes that Plaintiff’s alleged loss, injuries and/or 11 damages, which are denied, were aggravated by Plaintiffs’ failure to use reasonable diligence to 12 mitigate them. 13 SIXTH AFFIRMATIVE DEFENSE 14 (Waiver and Release) 15 6. Defendant is informed and believes that Plaintiff is barred from any recovery 16 under the Complaint because Plaintiff has voluntarily and knowingly waived and released the 17 right to maintain the claims filed in this case by, among other things, Plaintiff’s acts, omissions 18 and conduct, and the acts, omissions and conduct of their agents, employees and representatives. 19 SEVENTH AFFIRMATIVE DEFENSE 20 (Acts in Concert and with Approval) 21 7. If any of the acts or omissions alleged in the Complaint was committed by the 22 defendants, which is denied, Defendant is informed and believes that Plaintiff directly or 23 indirectly acted in concert with such persons or knowingly ratified or approved such conduct, and 24 are therefore precluded from any recovery from or against Defendant based thereon. 25 EIGHTH AFFIRMATIVE DEFENSE 26 (Assumption of Risk) 27 8. Defendant is informed and believes that Plaintiff had knowledge of the risks and 28 hazards inherent in the events and activities which took place at the times set forth in the 3 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 Complaint, as well as the magnitude of those risks and hazards, and thereafter knowingly and 2 willingly assumed and accepted those risks and hazards. 3 NINTH AFFIRMATIVE DEFENSE 4 (Lack of Standing) 5 9. Defendant is informed and believes that Plaintiff lacks standing to assert the 6 matters alleged in the Complaint against Defendant. 7 TENTH AFFIRMATIVE DEFENSE 8 (Statute of Frauds) 9 10. Defendant is informed and believes that each of Plaintiff’s causes of action set 10 forth in the Complaint are barred by the statute of frauds. 11 ELEVENTH AFFIRMATIVE DEFENSE 12 (Offset) 13 11. Defendant is informed and believes that they have incurred damages and expenses 14 in an amount to be ascertained and applied as offset against Plaintiff’s claims, without 15 acknowledging that such claims have merit or provide any basis for recovery. 16 TWELFTH AFFIRMATIVE DEFENSE 17 (Unclean Hands) 18 12. Defendant is informed and believes that Plaintiff has “unclean hands” with regard 19 to the relief sought in the Complaint, therefore, Plaintiff is barred from obtaining such relief. 20 THIRTEENTH AFFIRMATIVE DEFENSE 21 (Consent and Ratification) 22 13. Defendant is informed and believes that Plaintiff has ratified, acknowledged, 23 consented to, or acquiesced in the rights of the Defendant challenged by the Complaint based on, 24 among other things, the consent, ratification and acquiescence of Plaintiff to the subject loan 25 transaction and USREC Deed of Trust through the Power of Attorney (Special), dated May 28, 26 2020, signed by Plaintiff and acknowledged before a duly commissioned California notary public 27 on May 28, 2020 (“POA”), and recorded on September 9, 2020, as Document No. 2020-0035269 28 in the official records of Santa Cruz County. 4 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Bona Fide Encumbrancer) 3 14. Defendant is informed and believes that Plaintiff’s claims are barred because 4 Defendant is a good faith bona fide encumbrancer for value under the USREC Deed of Trust, 5 without notice, who took free and clear of Plaintiff’s claims according to California law, 6 including but not limited to, California Civil Code section 1107. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 (Good Faith) 9 15. Defendant is informed and believes that Plaintiff’s claims are barred because 10 Defendant’s actions were proper and legal and Defendant acted at all times in good faith and 11 without malice. 12 SIXTEENTH AFFIRMATIVE DEFENSE 13 (Unjust Enrichment) 14 16. Defendant is informed and believes that granting Plaintiff’s demands set forth in the 15 Complaint would result in Plaintiff receiving relief, money or valuable property interests beyond 16 anything Plaintiff is entitled to receive, including Defendant’s funding of the subject loan secured 17 by the USREC Deed of Trust, the right to which relief is hereby denied. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 (No Reliance) 20 17. Defendant is informed and believes that Plaintiff did not rely on any act, omission, 21 conduct, or statement of Defendant. 22 EIGHTEENTH AFFIRMATIVE DEFENSE 23 (Outside of Scope of Agency) 24 18. Defendant is informed and believes that any of the acts or omissions alleged in the 25 Complaint committed by its agents or representatives, which are hereby denied, was outside the 26 scope of the authority of those agents or representatives and was neither authorized nor ratified by 27 Defendant, nor did Defendant create ostensible authority for such conduct. 28 5 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Privilege) 3 19. Defendant is informed and believes that the acts and omissions alleged in 4 Plaintiffs’ Complaint were privileged by, among other things, Civil Code section 47. 5 TWENTIETH AFFIRMATIVE DEFENSE 6 (Quiet Title) 7 20. Defendant is informed and believes that Plaintiff’s claims herein are barred by 8 Plaintiff’s failure to comply with California Code of Civil Procedure section 760.010, et seq. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (No Cancellation) 11 21. Defendant is informed and believes that Plaintiff’s claims herein are barred by 12 Plaintiff’s failure to allege facts establishing the right to cancellation of Defendant’s security 13 interest in the USREC Deed of Trust under California Civil Code section 3412. 14 TWENTY-SECOND AFFIRMATIVE DEFENSE 15 (Lack of Equity) 16 22. Defendant is informed and believes that Plaintiff’s claims herein are barred 17 because Plaintiff has not done equity with respect to the matters alleged in the Complaint, among 18 other things, based on Plaintiff’s failure to tender and return the loan proceeds funded by 19 Defendant under the USREC Deed of Trust. 20 TWENTY-THIRD AFFIRMATIVE DEFENSE 21 (Issue Preclusion) 22 23. Defendant is informed and believes that some or all of Plaintiff’s claims herein are 23 barred by the preclusive effect of the complete adjudication of issues asserted in the Complaint, 24 including the prior appointment and authority of Cody Molica as Plaintiff’s agent and guardian ad 25 litem in proceedings before this Court. 26 TWENTY-FOURTH AFFIRMATIVE DEFENSE 27 (Judicial Estoppel) 28 24. Defendant is informed and believes that some or all of Plaintiff’s claims herein are 6 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 barred because Plaintiff is estopped to deny the authority of his duly appointed attorney-in-fact 2 under the POA by Plaintiff’s prior arguments, allegations, positions and pleadings in one or more 3 actions before this Court. 4 TWENTY-FIFTH AFFIRMATIVE DEFENSE 5 (Equitable Subrogation) 6 25. Defendant is entitled to a judgment enforcing its right to be equitably subrogated 7 to all liens, encumbrances, and obligations secured against or encumbering the Subject Property 8 that were paid off in full by Defendant’s loan proceeds funded under the USREC Deed of Trust. 9 Defendant does not intend to waive the lien of the USREC Deed of Trust or violate the 10 one action rule set forth in Code of Civil Procedure section 726 by asserting the alternative 11 affirmative defenses herein. Defendant reserves the right to amend this answer to assert 12 additional defenses that may become legally available or apparent during discovery and 13 preparation for trial. 14 WHEREFORE, Defendant prays for judgment as follows: 15 1. That Plaintiff take nothing; 16 2. For a judgment quieting title in Defendant under USREC Deed of Trust as a first 17 lien against the Subject Property as of September 9, 2020; 18 3. Alternatively, for imposition of a lien by equitable subrogation; 19 4. For costs of suit, including, were authorized, reasonable attorney’s fees; and 20 5. For such other and further relief as the Court shall deem just and proper. 21 Dated: December 12, 2022 STEYER LOWENTHAL BOODROOKAS 22 ALVAREZ & SMITH LLP 23 By:______________________________ 24 Jeffrey H. Lowenthal Edward Egan Smith 25 Matthew W. Delbridge Attorneys for Defendant 26 United States Real Estate Corporation 27 28 7 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 Dated: December 13, 2022 LAW OFFICE OF JULIAN BACH 2 3 /s/ Julian Karl Bach By:______________________________ Julian Karl Bach 4 Attorneys for Defendant and Cross- Complainant United States Real Estate 5 Corporation 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 1989513.3 - NATC.JNEEL 1 PROOF OF SERVICE Jason Neel v. Superior Loan Servicing, et al. 2 Santa Cruz Superior Court Case No. 22CV01758 3 I declare that I am over the age of eighteen years and that I am not a party to this action. I am an employee of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, and my business 4 address is 235 Pine Street, 15th Floor, San Francisco, CA 94104. 5 On the date set forth below, I served the following document(s): 6 DEFENDANT UNITED STATES REAL ESTATE CORPORATION’S ANSWER TO FIRST AMENDED COMPLAINT 7 on the interested parties in this action as follows: 8 Thornton Davidson Michael T. Beuselinck 9 Pamela Simmons Michael Beuselinck P.C. Thornton Davidson, P.C. 490 43rd Street, #37 10 1195 W. Shaw Lane, Suite A Oakland, CA 94609 Fresno, CA 93711 Email: mike@lawmtb.com 11 Ph: 559-476-5064 Ph: (925) 800-3032 Fax: 559-421-0368 [Attorneys for CNA Equity Group, 12 Email: thornton@thorntondavidsonlaw.com Inc. [erroneously sued as CNA pamela@pamelaw.com Equities Group, LLC] 13 [Attorneys for Plaintiff Jason Neel] 14 Julian Karl Bach 15 Law Office of Julian Bach 7911 Warner Avenue 16 Huntington Beach, CA 92647 Telephone: (714) 848-5085 17 E-mail: julianbach@sbcglobal.net; julian@jbachlaw.com 18 [Co-counsel for Defendant United States Real 19 Estate Corporation] 20 21 BY ELECTRONIC TRANSMISSION. I caused a true and correct copy of the aforementioned document to be transmitted to each of the parties at the electronic 22 notification address last given by said party on any document which he or she has filed in this action and served upon this office. 23 BY ELECTRONIC TRANSMISSION. Per the Court’s “Electronic Filing and 24 Service Standing Order”, I caused the documents to be sent to the persons at the email addresses listed with the Court in this matter. 25 BY FILE & SERVEXPRESS. I caused such document\(s\) to be electronically 26 served via File & ServeXpress on all interested parties at the email addresses listed with the Court in this matter. 27 BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED. I am readily familiar 28 with the practice for collection and processing of correspondence for mailing with the 1 PROOF OF SERVICE 1908391.1 - NATC.JNEEL 1 U.S. Postal Service, to wit, that correspondence will be deposited with the U.S. Postal Service this same day in the ordinary course of business. I sealed said envelope and 2 placed it for collection and mailing following ordinary business practices. 3 BY MAIL. I am readily familiar with my firm's practice for collection and processing of correspondence for mailing with the U.S. Postal Service, to wit, that correspondence 4 will be deposited with the U.S. Postal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing following 5 ordinary business practices. 6 BY HAND DELIVERY. I caused such envelope to be delivered by hand to the offices of the addressee following ordinary business practices. 7 BY FACSIMILE. I caused such document to be delivered by facsimile transmission, 8 pursuant to Rule 2008, to the number indicated after the address(es) noted on the facsimile cover sheet. The telephone number of the sending facsimile machine is 9 415/421-2234. 10 BY FED EX. I caused such document to be delivered by overnight mail to the offices of the addressees by placing it for collection by Federal Express following ordinary 11 business practices by my firm, to wit, that packages will either be picked up from my firm by Federal Express and/or delivered by my firm to the Federal Express Office. 12 I declare under penalty of perjury under the laws of the State of California that the 13 foregoing is true and correct. 14 Executed on December 13, 2022, at San Francisco, California. 15 16 Alma Caliz 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE 1908391.1 - NATC.JNEEL