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I Mark J. Sarni, Esq. (SBN 164364)
ATTORNEY AT LAW
'
'424 Carson Street, Suite 350
Torrance, California 90503
3 Telephone: (310) 542-0111
Facsimile: (310) 214-7254
4 Email: southbavadrSamail.corn
Attorney for Defendant and
Cross-Complainant, Rushmyfile, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CRUZ
10
JASON NEEL, ) CASE NO: 22CV01758
11 )
Plaintiff, ) CROSS COMPLAINT OF
12 RUSHMYFILE, INC. AGAINST
V.
) CROSS-DEFENDANTS CNA EQUITY
13 ) GROUP, INC.; CODY MOLICA;
SUPERIOR LOAN SERVICING; ASSET ) DONALD SCHWARTZ; DEREK
14 DEFAULT MANAGEMENT, INC.; UNITED ) WHEAT AKA MIGUEL WHEAT AKA
STATES REAL ESTATE CORPORATION; ) SAM WHEAT; and MOES 1-50,
CNA EQUITIES GROUP, LLC; AND Inclusive, for:
RUSHMYFILE, BUSINESS ENTITY FORM
UNKNOWN, and DOES 1-50, inclusive, (I) IMPLIED CONTRACTUAL
INDEMNITY;
17 )
Defendants. (2) EQUITABLE INDEMNITY;
) (3) CONTRIBUTION;
18 ) (4) APPORTIONMENT OF FAULT;
UNITED STATES REAL ESTATE ) and,
CORPORATION ) (5) DECLARATORY RELIEF
)
20 )
Cross-Complainant, )
21 )
V. )
22 )
JASON NEEL; CNA EQUITY GROUP, INC.,
professional corporation; a California
24 Corporation; CODY MOLICA, and ROES 1-50,)
Inclusive, )
25 )
Cross-Defendants )
26 )
)
27 )
)
28 )
I
CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
RUSHMYFILE, INC., a California Corporation,)
)
Cross-Complainant, )
)
V.
)
)
CNA EQUITY GROUP, INC., a professional )
corporation; CODY MOLICA, an individual; )
DONALD SCHWARTZ, an individual; DEREK)
WHEAT AKA MIGUEL WHEAT AKA SAM
WHEAT, an individual; and MOES 1-50, )
inclusive, )
)
Cross-Defendants )
)
)
10
CROSS-COMPLAINT
12
Cross-Complainant, RUSHMYFILE, INC., for causes of action against Cross-Defendants
13 CNA EQUITY GROUP, INC., a professional corporation; CODY MOLICA, an individual;
14 DONALD SCHWARTZ, an individual; DEREK WHEAT AKA MIGUEL WHEAT AKA SAM
15 WHEAT, an individual; and MOES 1-50, inclusive, alleges as follows:
16
1. At all times mentioned herein, Cross-Complainant, Rushmyfile, Inc. (" Cross-
17 Complainant" or "Rushmyfile"), was a California Corporation in good standing.
18
2. At all times mentioned herein, Rushmyfile is informed and believes, Cross-
19
Defendant, CNA EQUITY GROUP, INC., a professional corporation ("CNA"), was a California
20 corporation in good standing.
21
3. At all times mentioned herein, Rushmyfile in informed and believes, Cross-
22 Defendant, CODY MOLICA ("Molica"), was an individual and a citizen of California who
23
engaged in the conduct as set forth herein and which subjects him to the j urisdiction of this court.
24 4. At all times mentioned herein, Rushmyfile in informed and believes, Cross-
25 Defendant, DONALD SCHWARTZ ("Schwartz"), was an individual and a citizen of California
26 who engaged in the conduct as set forth herein and which subjects him to the jurisdiction of this
27 court.
28 5. At all times mentioned herein, Rushmyfile in informed and believes, Cross-
2
CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
I
Defendant, DEREK WHEAT AKA MIGUEL WHEAT AKA SAM WHEAT, was an individual
2
and a citizen of California who engaged in the conduct as set forth herein and which subjects him
3
to the jurisdiction of this court.
4
6. The true names and capacities of Cross-Defendants "Moes I through 50,"
inclusive, are unknown to Cross-Complainant, who therefore sues said Cross-Defendants and
6
each of them, by such fictitious names. Cross-Complainant will seek leave of court to amend this
7
Cross-Complaint to insert the true names and capacities of the fictitiously named Cross-
8
Defendants when the same have been ascertained. Cross-Complainant is informed and believes
9
and based thereon alleges that each Cross-Defendant herein designated as a "MOE" is legally
10
responsible in some manner for the acts, occurrences, damages, and liabilities hereinafter
ll
alleged, and actively and/or passively caused and contributed to the various damages referred to
12
herein.
13
7. Cross-Complainant is informed and believes and based thereon allege that at all
14
times herein mentioned, each Cross-Defendant designated herein is or was the agent, partner,
15
employee, joint venturer, subcontractor, consultant, and/or supplier of each of the remaining
16
Cross-Defendants and was at all times herein mentioned, acting within the course and scope of
17
said agency and/or employment and/or relationship.
18
8. On or about August 10, 2022, an action entitled Jason Neel, Plaintiff v. Superior
19
Loan Servicing, et al with Case Number HG21108386 (the "Complaint'*) was filed in the
20
Superior Court for the County of Alameda, alleging that a promissory note and deed of trust
21
were fraudulently executed which resulted with a lien on the Plaintiff's real property. Plaintiff
22
alleged that the loan had thereafter gone into foreclosure. Plaintiff alleged that he was mentally
23
incompetent and could not have legally entered into any contract during the applicable timeframe
24
and therefore the promissory note and deed of trust referenced in the Complaint needed to be
25
canceled as a matter of law. Cross-Defendant Donald Schwartz ("Schwartz") was Plaintiffs
26
attorney of record when the Complaint was filed and it was he, not the Plaintiff, who verified the
27
Complaint. Rushmyfile is informed and believes that Plaintiff sought and obtained a temporary
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3
CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
restraining order and/or a preliminary injunction precluding the foreclosure from proceeding
until a further decision from the court.
9. On or about August 16, 2022, the Complaint was transferred from the Superior
4
Court for the County of Alameda to the Superior Court for the County of Santa Cruz. The case
5
was given a new case number of 22CV01758.
6
10. On or about October 11, 2022, Plaintiff filed a First Amended Complaint ("FAC")
with the Superior Court for the County of Santa Cruz. Attorneys Thornton Davidson, Pamela
Simmons and William Purdy were indicated as the legal representatives of Plaintiff. (Schwartz
9
was not indicated as one of Plaintiff's attorneys on the FAC.) Rushmyfile is informed and
10
believes that Plaintiff never filed with the court a "substitution of attorney" form necessary to
11
replace Schwartz as his attorney.
12
11. The FAC alleges a panoply of legal wrongs committed by those associated with
13
applying for various real estate loans on behalf of the Plaintiff, with those making the loans on
14
behalf of the Plaintiff, and those servicing said loans. The FAC alleges that Plaintiff was a
15
"dependent adult with a number of cognitive impairments" at "all times relevant to the
16
Complaint" but is silent as to whether he had/has the legal capacity to file and maintain the
17
original Complaint or the pending FAC. Apparently, according to the FAC, Molica was an
18
associate of Schwartz - when Plaintiff was allegedly either incapable or incompetent to sign legal
19
documents - and Schwartz and Molica worked together to defraud the Plaintiff out of real estate
20
assets by leveraging real property owned by the Plaintiff via powers of attorney signed
by the
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Plaintiff. The ill-gotten gains were then, apparently, distributed through Schwartz's legal trust
22
account to the wrongdoers. For reasons unclear to Cross-Complainant, neither Molica nor
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Schwartz — both alleged by Plaintiff as the initiators of this wrongdoing — were Itor identified as
24
defendants in Plaintiff s FAC.
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12. Cross-Complainant incorporates herein by reference - as if fully pled herein - the
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contents of said FAC, without admitting the material allegations of wrongdoing by Rushmyfile
27
contained therein, the truth of which is expressly denied as to Rushmyfile. The FAC alleges that
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CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
I
Plaintiff has been damaged and he seeks relief based on causes of action to include: (I)
2
Cancellation of Written Instruments; (2) Violation of Truth-in-Lending Act; (3) Violation of
3
Home Ownership and Equity Protection Act and Regulation "Z;" (4) Wrongful Foreclosure; (5)
4
Elder Abuse; (6) Conversion; (7) "Aiding and Abetting;" (8) Preliminary Injunction and
5
Permanent Restraining Order; and, (9) Declaratory Relief.
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13. As of the date of the filing of this Cross-Complaint, one additional cross-
7
complaint has been filed related to the above-entitled action. Specifically, Defendant United
8
States Real Estate Corporation ("USREC"), a holder of a deed of trust against Plaintiff s real
9
property located at 144 Palo Verde Terrace, Santa Cruz, CA 95060, has filed its cross-complaint
10
on December 13, 2022, to have its deed of trust reformed and declared valid and enforceable,
11
among other causes of action.
12
13
FIRST CAUSE OF ACTION
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Implied Contractual Indemnity
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(As Against all Cross-Defendant CNA and MOES 1-10)
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14. Cross-Complainant refer to, and incorporate by reference, the allegations of
17
Paragraphs 1 through 13 of this Cross-Complaint, as though fully set forth herein.
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15. Cross-Complainant alleges that it may be required to pay money damages by way
19
of a court judgment because Cross-Defendants CNA and/or MOES 1-10 failed to use reasonable
20
care in performing the work of a mortgage co-broker which included properly screening loan
21
applications for errors, inconsistencies and/or fraudulent representations and to not otherwise
22
engage in fraudulent misconduct of their own. Cross-Defendant CNA and/or MOES 1-10 had a
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written contract to perform the co-brokerage services referenced above and their failure to
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properly render said services was a substantial factor in causing Plaintiff's harm.
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16. By reason of the foregoing allegations, if Plaintiff recovers judgment against
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Cross-Complainant, then Cross-Complainant is entitled to a judgment, over and against the
27
Cross-Defendants herein, and each of them, for their fair share of Plaintiff s Judgment.
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5
CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RIJSHMYFILE
SECOND CAUSE OF ACTION
Equitable Indemnity
(As Against all Cross-Defendants)
17. Cross-Complainant refers to, and incorporates by reference, the allegations of
5
Paragraphs 1 through 16 of this Cross-Complaint, as though fully set forth herein.
6
18. Cross-Complainant is informed and believes, and based thereon allege, that it is in
7
no way responsible for the damages alleged in Plaintiff s FAC. However, if Cross-Complainant
8
is found responsible under the law for any of the allegations contained in Plaintiff s FAC, then
9
Cross-Complainant is informed and believes, and based thereon alleges, that the tortious
10
conduct, in whole or in part, of the Cross-Defendants, and each of them, contributed to the
11
happening of the acts alleged in Plaintiff's FAC on file herein. Cross-Complainant further
12
alleges that the tortious conduct of Cross-Defendants was a substantial factor in causing
13
Plaintiffs damages.
14
19. By reason of the foregoing allegations, if Plaintiff recovers judgment against
15
Cross-Complainant, then Cross-Complainant is entitled to a judgment, over and against the
16
Cross-Defendants herein, and each of them, for their fair share of Plaintiffs'udgment.
17
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THIRD CAUSE OF ACTION
19
Contribution
20
(As Against all Cross-Defendants)
21
20. Cross-Complainant refers to, and incorporates by reference, the allegations of
22
Paragraphs 1 through 19 of this Cross-Complaint, as though fully set forth herein.
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21. By reason of the foregoing allegations, Cross-Complainant will be damaged to the
24
extent that it must pay any sum, or any sum in excess of a proportionate amount of its liability, if
25
any, assessed by the trier of fact.
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22. Accordingly, if Cross-Complainant is held liable for any part of the claims
27
asserted against it in Plaintiffs'AC, then Cross-Complainant is entitled to equitable
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CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RLISHMYFILE
I
contribution by Cross-Defendants, and each of them, proportionate to each Cross-Defendant's
2
share of liability because they are being jointly and severally liable based on the allegations of
3
misconduct asserted in the FAC.
4
FOURTH CAUSE OF ACTION
Apportionment of Fault
(As Against all Cross-Defendants)
23. Cross-Complainant refers to, and incorporates by reference, the allegations of
9
Paragraphs 1 through 22 of this Cross-Complaint, as though fully set forth herein.
10
24. Each Cross-Defendant is liable, in whole or in part, for any injuries suffered by
11
Plaintiffs.
12
25. If Cross-Complainants are adjudged liable to Plaintiffs, each Cross-Defendant
13
should be required: (1) to pay a share of any judgment entered in favor of Plaintiffs which is in
14
proportion to the comparative negligence of that Cross-Defendant in causing Plaintiffs'njuries;
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and, (2) to reimburse Cross-Complainant for any payment made to Plaintiff in excess of Cross-
16
Complainants'roportional share of all Cross-Defendants'egligence.
17
FIFTH CAUSE OF ACTION
19
Declaratory Relief
20
(As Against all Cross-Defendants)
21
26. Cross-Complainant refers to, and incorporates by reference, the allegations of
22
Paragraphs I through 25 of this Cross-Complaint, as though fully set forth herein.
23
27. A dispute has arisen, and an actual controversy now exists between Cross-
24
Complainant and Cross-Defendants, and each of them, concerning their respective rights and
25
duties, in that Cross-Complainant contends that it is entitled to indemnity from Cross-
26
Defendants, and each of them, by virtue of the theory of implied contractual indemnity, and the
27
theory of equitable indemnity among the other theories of liability alleged herein. Cross-
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CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
Complainant is informed and believes, and based thereon alleges that Cross-Defendants, and
each of them, oppose and deny the above contentions and contend that Cross-Complainant is not
entitled to any indemnity or contribution from any Cross-Defendant herein.
28. A declaration of rights is necessary and appropriate at this time so that Cross-
Complainant may ascertain its rights and duties, because no adequate remedy, other than as
prayed for, exists by which the rights of the parties may be determined.
PRAYER FOR RELIEF
10
WHEREFORE, Cross-Complainant prays for relief as follows:
FIRST CAUSE OF ACTION:
12
1. For a declaration of this Court that the Cross-Defendants identified therein, and
13
each of them, are obligated to indemnify and hold Cross-Complainants harmless against any
14
judgment which Plaintiffs may recover against Cross-Complainant in this action;
15
2. For a judgment against Cross-Defendants, and each of them, in such amount as
16
Plaintiff may recover against Cross-Complainant in this action;
17
SECOND CAUSE OF ACTION:
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For a declaration of this Court that Cross-Defendants, and each of them, are
19
obligated to indemnify and hold Cross-Complainant harmless against any judgment which
20
Plaintiff may recover against Cross-Complainant in this action;
21
For ajudgment against Cross-Defendants, and each of them, in such amount as
22
Plaintiff may recover against Cross-Complainant in this action;
23
THIRD CAUSE OF ACTION:
5. For a judgment that Cross-Defendants, and each of them, are liable to Plaintiff for
25
such a percentage of damages proximately caused by Cross-Defendants, and each of them;
26
6. For a judgment that Cross-Defendants, and each of them, are liable to
27
Cross-Complainants for such a percentage of damages proximately caused by Cross-Defendants,
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8
CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
1
and each of them;
2
FOURTH CAUSE OF ACTION:
3
7. For a judgment in a proportionate share against each Cross-Defendant which is in
4
proportion to the comparative negligence of that Cross-Defendant in causing Plaintiff s injuries;
.5
FIFTH CAUSE OF ACTION:
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8. For a judgment against Cross-Defendants, and each of them, declaring that Cross-
7
Complainant has no liability as to Plaintiff s FAC filed in this action, that such liability is instead
8
upon such Cross-Defendants, and each of them, and that any liability of Cross-Complainant
9
arising out of this action must be borne proportionately by such Cross-Defendants and Cross-
10
Complainant based on their respective percentage liability under the FAC and Cross-Complaints
11
filed in this action;
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ALL CAUSES OF ACTION:
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9. For attorneys'ees according to proof and as permitted by law;
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10. For costs of suit incurred herein; and
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11. For such other and further relief as the Court may deem just and proper.
16
17 Dated: March 16, 2023 MARK J. SARNI
18
ATTO
19
20 Mark J. %rni, Esq.
Attorney for Defendant and Cross-
21 Complainant, RUSHMYFILE,
INC.
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25
26
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CROSS-COMPLAINT BY DEFENDANT
AND CROSS-COMPLAINANT RUSHMYFILE
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
4 I am employed in the county of Los Angeles, State of California. I am over the
age of 18 and not a party to the within action; my business address is 3424 Carson Street,
Suite 350, Torrance, CA 90503.
6
On March 20, 2023, I served the following documents by the means indicated
below:
7
1. ANSWER OF DEFENDANT RUSHMYFILE, INC. TO FIRST
8
AMENED COMPLAINT OF PLAINTIFF JASON NEEL;
2. CROSS-COMPLAINT OF RUSHMYFILE, INC. AGAINST CROSS-
10
DEFENDANTS CNA EQUITY GROUP, INC.; CODY MOLICA;
DONALD SCHWARTZ; DEREK WHEAT AKA MIGUEL WHEAT
AKA SAM WHEAT; and,
12
3. ANSWER OF CROSS-DEFENDANT RUSHMYFILE, INC. TO
CROSS-COMPLAINT OF CROSS-COMPLAINANT UNITED
13 STATES REAL ESTATE CORPORATION
14 on the interested parties as follows by the following means:
(Sce Attached Service List)
(BY OVERNIGHT MAIL) As follows: I am "readily familiar" with the firm's
17 practice of collection and processing correspondence for mailing. Under that
practice it would be deposited with Fed Express on that same day with postage
18 thereon fully prepaid at Torrance, California in the ordinary course of business. I
am aware that on motion of the party served, service is presumed invalid if postal
19 cancellation date or postage meter date is more than one day after date of deposit
for mailing in affidavit.
20
0 (BY MAIL) As follows; I am "readily familiar" with the firm's practice of
21 collection and processing correspondence for mailing. Under that practice it
would be deposited with U.S. postal service on that same day with postage
22 thereon fully prepaid at Torrance, California in the ordinary course of business. I
am aware that on motion of the party served, service is presumed invalid if postal
23 cancellation date or postage meter date is more than one day after date of deposit
for mailing in affidavit.
24
(BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED). I deposited these
papers with the United States Postal Service, in a sealed envelope with postage
fully prepaid. I am a resident or employed in the county where the notice was
26 mailed. I used certified mail and requested a return receipt. The envelope was
addressed and mailed to the other party as follows:
27
28 (I) Name:
CASE NO. 22CV01758
PROOF OF SERVICE
(2) Address on envelope:
(3) Date Mailed:
(4) Place of mailing (city, state):
4
(BY PERSONAL SERVICE) I delivered such envelope by first class mail to the
Santa Clara County Sheriffs Office with Instructions to personally serve the
above identified parties at the address identified or at such other address as the
Santa Clara County Sheriff s Office can locate the above identified parties.
7
(BY FAX) As follows; On at approximately p.m. by use
of facsimile machine number (310) 214-7254, I served a copy of the foregoing on
the interested parties in this action by transmitting by facsimile machine to the
following: [C.C.P. tj 1013(e)] SEE ATTACHED SERVICE LIST
io H (BY E-MAIL OR ELECTRONIC TRANSMISSION) As follows: I caused a
copy of the document(s) to be sent from e-mail address southbavadrSvmail.corn
to the persons at the e-mail addresses listed below. I did not receive, within
reasonable time after the transmission, any electronic message or other indication
12
that the transmission was unsuccessful. The following parties were served
13 electronically at the following email addresses:
14 H (STATE) I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
15
(FEDERAL) I declare that I am employed in the office of a member of the bar of
16 this court at whose direction the service was made.
17 Executed on March 20, 2023, at Torrance, California
18
l9
MARK J. SARNI
20
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CASE NO. 22CV01758
PROOF OF SERVICE
SERVICE LIST
Thornton Davidson, Esq. Attorney for Plaintiff, Jason Neel
THORNTON DAVIDSON, P.C.
1195 W. Shaw Ave., Ste. A
Fresno, CA 93711
thorntonSthorntondavidsonlaw.corn
Pamela D. Simmons, Esq. Attorneys for Plaintiff, Jason Neel
William Purdy, Esq.
LAW OFFICE OF SIMMONS & PURDY
2425 Porter Street, Suite 10
Soquel, CA 95073
namelaSnamelalaw.corn
bill namelalaw.corn
10
Jeffrey H. Lowenthal, Esq. Attorneys for Defendant and Cross-
Edward Egan Smith, Esq. Complainant, United States Real Estate
Matthew W. Delbridge, Esq. Corporation
12 STEYER LOWENTHAL
BOODROOKAS ALVAREZ & SMITH
13 LLP
235 Pine Street, 15'" Floor
14 San Francisco, CA 94104
ilowenthalSsteverlaw.corn
15
esmithSsteverlaw.corn
mdelbridaeSsteverlaw.corn
16
17
Edward T. Weber, Esq. Attorney for Defendants Superior Loan
Law Office of Edward T. Weber Servicing and Asset Default Management,
18
17151 Newhope Street, Suite 203 Inc.
19
Fountain Valley, CA 92708
edSweberleaal.corn
20
21
Michael T. Beuselinck, Esq. Attorney for Defendant and Cross-Defendant,
Michal Beuselinck, P.S. CNA Equity Group, Inc.
22 490 43'4 Street ¹37
Oakland, CA 94609
23 mike lawmtb.corn
24 Cody Molica Defendant and Cross-Defendant, In Pro Per
1029 North Road ¹175
25 Westfield, MA 01085
cmolica1 I igmail.corn
26
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CASE NO. 22CV01758
PROOF OF SERVICE
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I Mark J. Sarni, Esq. (SBN 164364) ATTORNEY AT LAW ' '424 Carson Street, Suite 350 Torrance, California 90503 3 Telephone: (310) 542-0111 Facsimile: (310) 214-7254 4 Email: southbavadrSamail.corn Attorney for Defendant and Cross-Complainant, Rushmyfile, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CRUZ 10 JASON NEEL, ) CASE NO: 22CV01758 11 ) Plaintiff, ) CROSS COMPLAINT OF 12 RUSHMYFILE, INC. AGAINST V. ) CROSS-DEFENDANTS CNA EQUITY 13 ) GROUP, INC.; CODY MOLICA; SUPERIOR LOAN SERVICING; ASSET ) DONALD SCHWARTZ; DEREK 14 DEFAULT MANAGEMENT, INC.; UNITED ) WHEAT AKA MIGUEL WHEAT AKA STATES REAL ESTATE CORPORATION; ) SAM WHEAT; and MOES 1-50, CNA EQUITIES GROUP, LLC; AND Inclusive, for: RUSHMYFILE, BUSINESS ENTITY FORM UNKNOWN, and DOES 1-50, inclusive, (I) IMPLIED CONTRACTUAL INDEMNITY; 17 ) Defendants. (2) EQUITABLE INDEMNITY; ) (3) CONTRIBUTION; 18 ) (4) APPORTIONMENT OF FAULT; UNITED STATES REAL ESTATE ) and, CORPORATION ) (5) DECLARATORY RELIEF ) 20 ) Cross-Complainant, ) 21 ) V. ) 22 ) JASON NEEL; CNA EQUITY GROUP, INC., professional corporation; a California 24 Corporation; CODY MOLICA, and ROES 1-50,) Inclusive, ) 25 ) Cross-Defendants ) 26 ) ) 27 ) ) 28 ) I CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE RUSHMYFILE, INC., a California Corporation,) ) Cross-Complainant, ) ) V. ) ) CNA EQUITY GROUP, INC., a professional ) corporation; CODY MOLICA, an individual; ) DONALD SCHWARTZ, an individual; DEREK) WHEAT AKA MIGUEL WHEAT AKA SAM WHEAT, an individual; and MOES 1-50, ) inclusive, ) ) Cross-Defendants ) ) ) 10 CROSS-COMPLAINT 12 Cross-Complainant, RUSHMYFILE, INC., for causes of action against Cross-Defendants 13 CNA EQUITY GROUP, INC., a professional corporation; CODY MOLICA, an individual; 14 DONALD SCHWARTZ, an individual; DEREK WHEAT AKA MIGUEL WHEAT AKA SAM 15 WHEAT, an individual; and MOES 1-50, inclusive, alleges as follows: 16 1. At all times mentioned herein, Cross-Complainant, Rushmyfile, Inc. (" Cross- 17 Complainant" or "Rushmyfile"), was a California Corporation in good standing. 18 2. At all times mentioned herein, Rushmyfile is informed and believes, Cross- 19 Defendant, CNA EQUITY GROUP, INC., a professional corporation ("CNA"), was a California 20 corporation in good standing. 21 3. At all times mentioned herein, Rushmyfile in informed and believes, Cross- 22 Defendant, CODY MOLICA ("Molica"), was an individual and a citizen of California who 23 engaged in the conduct as set forth herein and which subjects him to the j urisdiction of this court. 24 4. At all times mentioned herein, Rushmyfile in informed and believes, Cross- 25 Defendant, DONALD SCHWARTZ ("Schwartz"), was an individual and a citizen of California 26 who engaged in the conduct as set forth herein and which subjects him to the jurisdiction of this 27 court. 28 5. At all times mentioned herein, Rushmyfile in informed and believes, Cross- 2 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE I Defendant, DEREK WHEAT AKA MIGUEL WHEAT AKA SAM WHEAT, was an individual 2 and a citizen of California who engaged in the conduct as set forth herein and which subjects him 3 to the jurisdiction of this court. 4 6. The true names and capacities of Cross-Defendants "Moes I through 50," inclusive, are unknown to Cross-Complainant, who therefore sues said Cross-Defendants and 6 each of them, by such fictitious names. Cross-Complainant will seek leave of court to amend this 7 Cross-Complaint to insert the true names and capacities of the fictitiously named Cross- 8 Defendants when the same have been ascertained. Cross-Complainant is informed and believes 9 and based thereon alleges that each Cross-Defendant herein designated as a "MOE" is legally 10 responsible in some manner for the acts, occurrences, damages, and liabilities hereinafter ll alleged, and actively and/or passively caused and contributed to the various damages referred to 12 herein. 13 7. Cross-Complainant is informed and believes and based thereon allege that at all 14 times herein mentioned, each Cross-Defendant designated herein is or was the agent, partner, 15 employee, joint venturer, subcontractor, consultant, and/or supplier of each of the remaining 16 Cross-Defendants and was at all times herein mentioned, acting within the course and scope of 17 said agency and/or employment and/or relationship. 18 8. On or about August 10, 2022, an action entitled Jason Neel, Plaintiff v. Superior 19 Loan Servicing, et al with Case Number HG21108386 (the "Complaint'*) was filed in the 20 Superior Court for the County of Alameda, alleging that a promissory note and deed of trust 21 were fraudulently executed which resulted with a lien on the Plaintiff's real property. Plaintiff 22 alleged that the loan had thereafter gone into foreclosure. Plaintiff alleged that he was mentally 23 incompetent and could not have legally entered into any contract during the applicable timeframe 24 and therefore the promissory note and deed of trust referenced in the Complaint needed to be 25 canceled as a matter of law. Cross-Defendant Donald Schwartz ("Schwartz") was Plaintiffs 26 attorney of record when the Complaint was filed and it was he, not the Plaintiff, who verified the 27 Complaint. Rushmyfile is informed and believes that Plaintiff sought and obtained a temporary 28 3 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE restraining order and/or a preliminary injunction precluding the foreclosure from proceeding until a further decision from the court. 9. On or about August 16, 2022, the Complaint was transferred from the Superior 4 Court for the County of Alameda to the Superior Court for the County of Santa Cruz. The case 5 was given a new case number of 22CV01758. 6 10. On or about October 11, 2022, Plaintiff filed a First Amended Complaint ("FAC") with the Superior Court for the County of Santa Cruz. Attorneys Thornton Davidson, Pamela Simmons and William Purdy were indicated as the legal representatives of Plaintiff. (Schwartz 9 was not indicated as one of Plaintiff's attorneys on the FAC.) Rushmyfile is informed and 10 believes that Plaintiff never filed with the court a "substitution of attorney" form necessary to 11 replace Schwartz as his attorney. 12 11. The FAC alleges a panoply of legal wrongs committed by those associated with 13 applying for various real estate loans on behalf of the Plaintiff, with those making the loans on 14 behalf of the Plaintiff, and those servicing said loans. The FAC alleges that Plaintiff was a 15 "dependent adult with a number of cognitive impairments" at "all times relevant to the 16 Complaint" but is silent as to whether he had/has the legal capacity to file and maintain the 17 original Complaint or the pending FAC. Apparently, according to the FAC, Molica was an 18 associate of Schwartz - when Plaintiff was allegedly either incapable or incompetent to sign legal 19 documents - and Schwartz and Molica worked together to defraud the Plaintiff out of real estate 20 assets by leveraging real property owned by the Plaintiff via powers of attorney signed by the 21 Plaintiff. The ill-gotten gains were then, apparently, distributed through Schwartz's legal trust 22 account to the wrongdoers. For reasons unclear to Cross-Complainant, neither Molica nor 23 Schwartz — both alleged by Plaintiff as the initiators of this wrongdoing — were Itor identified as 24 defendants in Plaintiff s FAC. 25 12. Cross-Complainant incorporates herein by reference - as if fully pled herein - the 26 contents of said FAC, without admitting the material allegations of wrongdoing by Rushmyfile 27 contained therein, the truth of which is expressly denied as to Rushmyfile. The FAC alleges that 28 4 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE I Plaintiff has been damaged and he seeks relief based on causes of action to include: (I) 2 Cancellation of Written Instruments; (2) Violation of Truth-in-Lending Act; (3) Violation of 3 Home Ownership and Equity Protection Act and Regulation "Z;" (4) Wrongful Foreclosure; (5) 4 Elder Abuse; (6) Conversion; (7) "Aiding and Abetting;" (8) Preliminary Injunction and 5 Permanent Restraining Order; and, (9) Declaratory Relief. 6 13. As of the date of the filing of this Cross-Complaint, one additional cross- 7 complaint has been filed related to the above-entitled action. Specifically, Defendant United 8 States Real Estate Corporation ("USREC"), a holder of a deed of trust against Plaintiff s real 9 property located at 144 Palo Verde Terrace, Santa Cruz, CA 95060, has filed its cross-complaint 10 on December 13, 2022, to have its deed of trust reformed and declared valid and enforceable, 11 among other causes of action. 12 13 FIRST CAUSE OF ACTION 14 Implied Contractual Indemnity 15 (As Against all Cross-Defendant CNA and MOES 1-10) 16 14. Cross-Complainant refer to, and incorporate by reference, the allegations of 17 Paragraphs 1 through 13 of this Cross-Complaint, as though fully set forth herein. 18 15. Cross-Complainant alleges that it may be required to pay money damages by way 19 of a court judgment because Cross-Defendants CNA and/or MOES 1-10 failed to use reasonable 20 care in performing the work of a mortgage co-broker which included properly screening loan 21 applications for errors, inconsistencies and/or fraudulent representations and to not otherwise 22 engage in fraudulent misconduct of their own. Cross-Defendant CNA and/or MOES 1-10 had a 23 written contract to perform the co-brokerage services referenced above and their failure to 24 properly render said services was a substantial factor in causing Plaintiff's harm. 25 16. By reason of the foregoing allegations, if Plaintiff recovers judgment against 26 Cross-Complainant, then Cross-Complainant is entitled to a judgment, over and against the 27 Cross-Defendants herein, and each of them, for their fair share of Plaintiff s Judgment. 28 5 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RIJSHMYFILE SECOND CAUSE OF ACTION Equitable Indemnity (As Against all Cross-Defendants) 17. Cross-Complainant refers to, and incorporates by reference, the allegations of 5 Paragraphs 1 through 16 of this Cross-Complaint, as though fully set forth herein. 6 18. Cross-Complainant is informed and believes, and based thereon allege, that it is in 7 no way responsible for the damages alleged in Plaintiff s FAC. However, if Cross-Complainant 8 is found responsible under the law for any of the allegations contained in Plaintiff s FAC, then 9 Cross-Complainant is informed and believes, and based thereon alleges, that the tortious 10 conduct, in whole or in part, of the Cross-Defendants, and each of them, contributed to the 11 happening of the acts alleged in Plaintiff's FAC on file herein. Cross-Complainant further 12 alleges that the tortious conduct of Cross-Defendants was a substantial factor in causing 13 Plaintiffs damages. 14 19. By reason of the foregoing allegations, if Plaintiff recovers judgment against 15 Cross-Complainant, then Cross-Complainant is entitled to a judgment, over and against the 16 Cross-Defendants herein, and each of them, for their fair share of Plaintiffs'udgment. 17 18 THIRD CAUSE OF ACTION 19 Contribution 20 (As Against all Cross-Defendants) 21 20. Cross-Complainant refers to, and incorporates by reference, the allegations of 22 Paragraphs 1 through 19 of this Cross-Complaint, as though fully set forth herein. 23 21. By reason of the foregoing allegations, Cross-Complainant will be damaged to the 24 extent that it must pay any sum, or any sum in excess of a proportionate amount of its liability, if 25 any, assessed by the trier of fact. 26 22. Accordingly, if Cross-Complainant is held liable for any part of the claims 27 asserted against it in Plaintiffs'AC, then Cross-Complainant is entitled to equitable 28 6 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RLISHMYFILE I contribution by Cross-Defendants, and each of them, proportionate to each Cross-Defendant's 2 share of liability because they are being jointly and severally liable based on the allegations of 3 misconduct asserted in the FAC. 4 FOURTH CAUSE OF ACTION Apportionment of Fault (As Against all Cross-Defendants) 23. Cross-Complainant refers to, and incorporates by reference, the allegations of 9 Paragraphs 1 through 22 of this Cross-Complaint, as though fully set forth herein. 10 24. Each Cross-Defendant is liable, in whole or in part, for any injuries suffered by 11 Plaintiffs. 12 25. If Cross-Complainants are adjudged liable to Plaintiffs, each Cross-Defendant 13 should be required: (1) to pay a share of any judgment entered in favor of Plaintiffs which is in 14 proportion to the comparative negligence of that Cross-Defendant in causing Plaintiffs'njuries; 15 and, (2) to reimburse Cross-Complainant for any payment made to Plaintiff in excess of Cross- 16 Complainants'roportional share of all Cross-Defendants'egligence. 17 FIFTH CAUSE OF ACTION 19 Declaratory Relief 20 (As Against all Cross-Defendants) 21 26. Cross-Complainant refers to, and incorporates by reference, the allegations of 22 Paragraphs I through 25 of this Cross-Complaint, as though fully set forth herein. 23 27. A dispute has arisen, and an actual controversy now exists between Cross- 24 Complainant and Cross-Defendants, and each of them, concerning their respective rights and 25 duties, in that Cross-Complainant contends that it is entitled to indemnity from Cross- 26 Defendants, and each of them, by virtue of the theory of implied contractual indemnity, and the 27 theory of equitable indemnity among the other theories of liability alleged herein. Cross- 28 7 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE Complainant is informed and believes, and based thereon alleges that Cross-Defendants, and each of them, oppose and deny the above contentions and contend that Cross-Complainant is not entitled to any indemnity or contribution from any Cross-Defendant herein. 28. A declaration of rights is necessary and appropriate at this time so that Cross- Complainant may ascertain its rights and duties, because no adequate remedy, other than as prayed for, exists by which the rights of the parties may be determined. PRAYER FOR RELIEF 10 WHEREFORE, Cross-Complainant prays for relief as follows: FIRST CAUSE OF ACTION: 12 1. For a declaration of this Court that the Cross-Defendants identified therein, and 13 each of them, are obligated to indemnify and hold Cross-Complainants harmless against any 14 judgment which Plaintiffs may recover against Cross-Complainant in this action; 15 2. For a judgment against Cross-Defendants, and each of them, in such amount as 16 Plaintiff may recover against Cross-Complainant in this action; 17 SECOND CAUSE OF ACTION: 18 For a declaration of this Court that Cross-Defendants, and each of them, are 19 obligated to indemnify and hold Cross-Complainant harmless against any judgment which 20 Plaintiff may recover against Cross-Complainant in this action; 21 For ajudgment against Cross-Defendants, and each of them, in such amount as 22 Plaintiff may recover against Cross-Complainant in this action; 23 THIRD CAUSE OF ACTION: 5. For a judgment that Cross-Defendants, and each of them, are liable to Plaintiff for 25 such a percentage of damages proximately caused by Cross-Defendants, and each of them; 26 6. For a judgment that Cross-Defendants, and each of them, are liable to 27 Cross-Complainants for such a percentage of damages proximately caused by Cross-Defendants, 28 8 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE 1 and each of them; 2 FOURTH CAUSE OF ACTION: 3 7. For a judgment in a proportionate share against each Cross-Defendant which is in 4 proportion to the comparative negligence of that Cross-Defendant in causing Plaintiff s injuries; .5 FIFTH CAUSE OF ACTION: 6 8. For a judgment against Cross-Defendants, and each of them, declaring that Cross- 7 Complainant has no liability as to Plaintiff s FAC filed in this action, that such liability is instead 8 upon such Cross-Defendants, and each of them, and that any liability of Cross-Complainant 9 arising out of this action must be borne proportionately by such Cross-Defendants and Cross- 10 Complainant based on their respective percentage liability under the FAC and Cross-Complaints 11 filed in this action; 12 ALL CAUSES OF ACTION: 13 9. For attorneys'ees according to proof and as permitted by law; 14 10. For costs of suit incurred herein; and 15 11. For such other and further relief as the Court may deem just and proper. 16 17 Dated: March 16, 2023 MARK J. SARNI 18 ATTO 19 20 Mark J. %rni, Esq. Attorney for Defendant and Cross- 21 Complainant, RUSHMYFILE, INC. 22 23 24 25 26 27 28 9 CROSS-COMPLAINT BY DEFENDANT AND CROSS-COMPLAINANT RUSHMYFILE 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) 4 I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 3424 Carson Street, Suite 350, Torrance, CA 90503. 6 On March 20, 2023, I served the following documents by the means indicated below: 7 1. ANSWER OF DEFENDANT RUSHMYFILE, INC. TO FIRST 8 AMENED COMPLAINT OF PLAINTIFF JASON NEEL; 2. CROSS-COMPLAINT OF RUSHMYFILE, INC. AGAINST CROSS- 10 DEFENDANTS CNA EQUITY GROUP, INC.; CODY MOLICA; DONALD SCHWARTZ; DEREK WHEAT AKA MIGUEL WHEAT AKA SAM WHEAT; and, 12 3. ANSWER OF CROSS-DEFENDANT RUSHMYFILE, INC. TO CROSS-COMPLAINT OF CROSS-COMPLAINANT UNITED 13 STATES REAL ESTATE CORPORATION 14 on the interested parties as follows by the following means: (Sce Attached Service List) (BY OVERNIGHT MAIL) As follows: I am "readily familiar" with the firm's 17 practice of collection and processing correspondence for mailing. Under that practice it would be deposited with Fed Express on that same day with postage 18 thereon fully prepaid at Torrance, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal 19 cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 20 0 (BY MAIL) As follows; I am "readily familiar" with the firm's practice of 21 collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage 22 thereon fully prepaid at Torrance, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal 23 cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 24 (BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED). I deposited these papers with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the notice was 26 mailed. I used certified mail and requested a return receipt. The envelope was addressed and mailed to the other party as follows: 27 28 (I) Name: CASE NO. 22CV01758 PROOF OF SERVICE (2) Address on envelope: (3) Date Mailed: (4) Place of mailing (city, state): 4 (BY PERSONAL SERVICE) I delivered such envelope by first class mail to the Santa Clara County Sheriffs Office with Instructions to personally serve the above identified parties at the address identified or at such other address as the Santa Clara County Sheriff s Office can locate the above identified parties. 7 (BY FAX) As follows; On at approximately p.m. by use of facsimile machine number (310) 214-7254, I served a copy of the foregoing on the interested parties in this action by transmitting by facsimile machine to the following: [C.C.P. tj 1013(e)] SEE ATTACHED SERVICE LIST io H (BY E-MAIL OR ELECTRONIC TRANSMISSION) As follows: I caused a copy of the document(s) to be sent from e-mail address southbavadrSvmail.corn to the persons at the e-mail addresses listed below. I did not receive, within reasonable time after the transmission, any electronic message or other indication 12 that the transmission was unsuccessful. The following parties were served 13 electronically at the following email addresses: 14 H (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 (FEDERAL) I declare that I am employed in the office of a member of the bar of 16 this court at whose direction the service was made. 17 Executed on March 20, 2023, at Torrance, California 18 l9 MARK J. SARNI 20 21 22 23 24 25 26 27 28 CASE NO. 22CV01758 PROOF OF SERVICE SERVICE LIST Thornton Davidson, Esq. Attorney for Plaintiff, Jason Neel THORNTON DAVIDSON, P.C. 1195 W. Shaw Ave., Ste. A Fresno, CA 93711 thorntonSthorntondavidsonlaw.corn Pamela D. Simmons, Esq. Attorneys for Plaintiff, Jason Neel William Purdy, Esq. LAW OFFICE OF SIMMONS & PURDY 2425 Porter Street, Suite 10 Soquel, CA 95073 namelaSnamelalaw.corn bill namelalaw.corn 10 Jeffrey H. Lowenthal, Esq. Attorneys for Defendant and Cross- Edward Egan Smith, Esq. Complainant, United States Real Estate Matthew W. Delbridge, Esq. Corporation 12 STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH 13 LLP 235 Pine Street, 15'" Floor 14 San Francisco, CA 94104 ilowenthalSsteverlaw.corn 15 esmithSsteverlaw.corn mdelbridaeSsteverlaw.corn 16 17 Edward T. Weber, Esq. Attorney for Defendants Superior Loan Law Office of Edward T. Weber Servicing and Asset Default Management, 18 17151 Newhope Street, Suite 203 Inc. 19 Fountain Valley, CA 92708 edSweberleaal.corn 20 21 Michael T. Beuselinck, Esq. Attorney for Defendant and Cross-Defendant, Michal Beuselinck, P.S. CNA Equity Group, Inc. 22 490 43'4 Street ¹37 Oakland, CA 94609 23 mike lawmtb.corn 24 Cody Molica Defendant and Cross-Defendant, In Pro Per 1029 North Road ¹175 25 Westfield, MA 01085 cmolica1 I igmail.corn 26 27 CASE NO. 22CV01758 PROOF OF SERVICE