Preview
1 MICHAEL T. BEUSELINCK, SBN 251991
MICHAEL BEUSELINCK P.C.
2 490 43rd Street #37
Oakland, CA 94609
3 Telephone: (925) 800-3032
mike@lawmtb.com
4
Attorneys for Defendant and Cross-Defendant
5 CNA EQUITY GROUP, INC.
6
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
IN AND FOR THE COUNTY OF SANTA CRUZ
8
9 JASON NEEL, No. 22CV01758
(Unlimited Jurisdiction)
10 Plaintiff,
ANSWER TO CROSS-COMPLAINT OF
11 vs. RUSHMYFILE, INC.
12 SUPERIOR LOAN SERVICING; ASSET
DEFAULT MANAGEMENT, INC.;
13 UNITED STATES REAL ESTATE
14 CORPORATION; CNA EQUITIES GROUP,
LLC; AND RUSHMYFILE, BUSINESS
15 ENTITY FORM UNKNOWN, and VIGIL
REAL ESTATE, BUSINESS ENTITY
16 FORM UNKNOWN and DOES 1-50,
inclusive,
17
Defendants.
18
19 UNITED STATES REAL ESTATE
CORPORATION,
20
Cross-Complainant,
21
v.
22
JASON NEEL; CNA EQUITY GROUP,
23 INC., a professional corporation;
RUSHMYFILE, INC., a California
24 corporation; CODY MOLICA, and ROES
1 through 50, inclusive,
25
Cross-Defendants.
26
27
28
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
RUSHMYFILE, INC., a California
1 corporation,
2 Cross-Complainant,
3 v.
4 CNA EQUITY GROUP, INC., a professional
corporation; CODY MOLICA, an individual;
5 DONALD SCHWARTZ, an individual;
DEREK WHEAT AKA MIGUEL WHEAT
6 AKA SAM WHEAT, an individual; and
MOES 1 through 50, inclusive,
7
Cross-Defendants.
8
9 Cross-Defendant CNA EQUITY GROUP, INC., a California professional corporation
10 (hereinafter “Cross-Defendant”) hereby answers the Cross-Complaint (the “Cross-Complaint”) of
11 RUSHMYFILE, INC., a California corporation (hereinafter "Cross-Complainant") as follows:
12 GENERAL DENIAL
13 Pursuant to California Code of Civil Procedure Section 431.30, Cross-Defendant denies
14 generally and specifically each and every allegation of the Cross-Complaint filed by Cross-
15 Complainant, and the whole thereof.
16 Cross-Defendant further denies that the Cross-Complainant has been damaged in any sum or
17 manner by reason of any acts or omissions on the part of Cross-Defendant, or on the part of any of
18 Cross-Defendant’s agents, servants, or representatives, and so deny that Cross-Complainant is entitled
19 to any relief.
20 SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES
21 By alleging the Separate and Additional Affirmative Defenses set forth below, Cross-Defendant
22 does not agree or concede that it has the burden of proof or the burden of persuasion on any of these
23 issues.
24 FIRST AFFIRMATIVE DEFENSE
25 (Failure to State a Cause of Action)
26 AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
27 ALLEGES:
28
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 The Complaint, and each purported cause of action therein, is barred, in whole or in part,
2 because the Complaint fails to allege facts sufficient to state or constitute a claim against the Cross-
3 Defendant and further fails to allege facts sufficient to entitle the Cross-Complainant to the relief
4 sought, or to any other relief whatsoever, from Cross-Defendant.
5 SECOND AFFIRMATIVE DEFENSE
6 (Failure to State a Cause of Action)
7 AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
8 ALLEGES:
9 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
10 constitute a cause of action for Declaratory Relief.
11 THIRD AFFIRMATIVE DEFENSE
12 (Failure to State a Cause of Action)
13 AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
14 ALLEGES:
15 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
16 constitute a cause of action for Reformation of Deed of Trust.
17 FOURTH AFFIRMATIVE DEFENSE
18 (Failure to State a Cause of Action)
19 AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
20 ALLEGES:
21 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
22 constitute a cause of action for Quiet Title.
23 FIFTH AFFIRMATIVE DEFENSE
24 (Failure to State a Cause of Action)
25 AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
26 ALLEGES:
27 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
28 constitute a cause of action for Equitable Subrogation.
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 SIXTH AFFIRMATIVE DEFENSE
2 (Failure to State a Cause of Action)
3 AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
4 ALLEGES:
5 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
6 constitute a cause of action for Equitable Lien.
7 SEVENTH AFFIRMATIVE DEFENSE
8 (Failure to State a Cause of Action)
9 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
10 DEFENDANT ALLEGES:
11 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
12 constitute a cause of action for Judicial Foreclosure.
13 EIGHTH AFFIRMATIVE DEFENSE
14 (Failure to State a Cause of Action)
15 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
16 DEFENDANT ALLEGES:
17 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
18 constitute a cause of action for Implied Contractual Indemnity.
19 NINTH AFFIRMATIVE DEFENSE
20 (Failure to State a Cause of Action)
21 AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
22 ALLEGES:
23 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
24 constitute a cause of action for Equitable Indemnity.
25 TENTH AFFIRMATIVE DEFENSE
26 (Estoppel)
27 AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT
28 ALLEGES:
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 Cross-Complainant, by and through its conduct, acts and deeds, has caused Cross-Defendant to
2 change position, and to act to its detriment and prejudice. The Complaint, and each alleged cause of
3 action therein, is therefore absolutely barred by the equitable doctrine of estoppel.
4 ELEVENTH AFFIRMATIVE DEFENSE
5 (Unclean Hands)
6 AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
7 DEFENDANT ALLEGES:
8 Cross-Complainant has been guilty of inequitable conduct with respect to the matters alleged in
9 the Complaint, and such inequitable conduct shall absolutely bar Cross-Complainant’s recovery herein
10 under the equitable doctrine of unclean hands.
11 TWELFTH AFFIRMATIVE DEFENSE
12 (Performance to Joint Creditors)
13 AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
14 DEFENDANT ALLEGES:
15 The Complaint, and each alleged cause of action therein, is absolutely barred by the provisions
16 of Civil Code Sections 1474, 1475, 1476, 1477, and each of them.
17 THIRTEENTH AFFIRMATIVE DEFENSE
18 (No Joint and Several Liability)
19 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
20 DEFENDANT ALLEGES:
21 The Complaint, and each alleged cause of action appearing therein, fails to state facts, or to
22 allege claims, which would impose joint and several liability for any of the damages claimed by any
23 party against this answering Cross-Defendant. Any liability of this answering Cross-Defendant, which
24 liability is expressly denied, would therefore be limited to those injuries, losses or damages, if any there
25 were, for which this answering Cross-Defendant’s actionable conduct, if any, was a primary
26 contributing factor.
27 FOURTEENTH AFFIRMATIVE DEFENSE
28 (Consent/Permission)
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
2 DEFENDANT ALLEGES:
3 Prior to the time when Cross-Defendant is alleged to have committed the acts complained of
4 Cross-Complainant invited, gave permission to, and consented to the acts alleged in the Complaint.
5 Each of the acts alleged in the Complaint, which acts are expressly denied, was done within the scope
6 of this consent and permission.
7 FIFTEENTH AFFIRMATIVE DEFENSE
8 (Performance)
9 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
10 DEFENDANT ALLEGES:
11 Cross-Defendant performed, satisfied, and discharged all duties and obligations it may have
12 owed to Cross-Complainant arising out of any and all agreements, representations or contracts made by
13 them or on their behalf barring this action.
14 SIXTEENTH AFFIRMATIVE DEFENSE
15 (Privity)
16 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
17 DEFENDANT ALLEGES:
18 Cross-Complainant was not in privity of contract with this answering Cross-Defendant and said
19 lack of privity bars recovery herein upon any theory of warranty, or upon any other cause of action or
20 theory which requires privity as a required element.
21 SEVENTEENTH AFFIRMATIVE DEFENSE
22 (Cross-Complainant’s Breach)
23 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
24 DEFENDANT ALLEGES:
25 The Complaint, and each purported cause of action therein, is barred, in whole or in part,
26 because Cross-Complainant did not comply with the terms of the contract between the parties, by
27 changing its terms, thereby denying the Cross-Defendant benefits under the contract.
28
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (Recoupment)
3 AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
4 DEFENDANT ALLEGES:
5 Cross-Complainant’s recovery herein, if any, must be reduced by an amount equal to any set-off
6 which the Cross-Defendant is entitled to assert against the claims of Cross-Complainant or any other
7 claimants, by reason of any amounts paid, under applicable laws or statutes.
8 NINETEENTH AFFIRMATIVE DEFENSE
9 (Standing)
10 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
11 DEFENDANT ALLEGES:
12 The Complaint, and each cause of action therein, is barred because Cross-Complainant lacks
13 standing to assert such claims.
14 TWENTIETH AFFIRMATIVE DEFENSE
15 (No Reasonable Notice of Breach)
16 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE, CROSS-
17 DEFENDANT ALLEGES:
18 The Complaint, and each alleged cause of action therein, is absolutely barred by the failure of
19 the Cross-Complainant to give this answering Cross-Defendant reasonable notice of the alleged
20 breaches of contract or other wrongful conduct as alleged in the Complaint.
21 TWENTY-FIRST AFFIRMATIVE DEFENSE
22 (Causation)
23 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE, CROSS-
24 DEFENDANT ALLEGES:
25 Cross-Defendant’s conduct was not the cause in fact nor the proximate cause of any injury, loss,
26 or damage alleged by Cross-Complainant.
27 TWENTY-SECOND AFFIRMATIVE DEFENSE
28 (No Breach by Cross-Defendants)
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE, CROSS-
2 DEFENDANT ALLEGES:
3 Cross-Complainant is not entitled to the money it is demanding because Cross-Defendant has
4 done everything as required by the contract.
5 TWENTY-THIRD AFFIRMATIVE DEFENSE
6 (Fault of Third Parties)
7 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE, CROSS-
8 DEFENDANT ALLEGES:
9 The Complaint, and each purported cause of action therein, is barred, in whole or in part, or any
10 recovery should be reduced, because named and/or unnamed third parties were careless, negligent or at
11 fault for the matters alleged in the Complaint; that said carelessness, negligence or fault of said named
12 and/or unnamed third parties proximately contributed to the happening of the incident and to the
13 injuries, loss, and damage complained of by Cross-Complainant, if any; that should Cross-Complainant
14 recover damages, then Cross-Defendant is entitled to have the amount thereof abated, reduced, or
15 eliminated to the extent that said named and/or unnamed third parties caused or contributed to Cross-
16 Complainant’s injuries, if any.
17 TWENTY-FOURTH AFFIRMATIVE DEFENSE
18 (Fault of Third Parties)
19 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
20 DEFENDANT ALLEGES:
21 The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the
22 doctrine of impracticability.
23 TWENTY-FIFTH AFFIRMATIVE DEFENSE
24 (Comparative Fault)
25 AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
26 DEFENDANT ALLEGES:
27 Cross-Complainant was careless and negligent with respect to all matters alleged in the
28 Complaint, and thus was comparatively at fault and proximately caused its own damages. Accordingly,
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 any damages otherwise recoverable by Cross-Complainant if any there were, should be reduced in
2 proportion to its own negligence or fault.
3 TWENTY-SIXTH AFFIRMATIVE DEFENSE
4 (Failure to Mitigate Damages)
5 AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
6 DEFENDANT ALLEGES:
7 Cross-Complainant failed to mitigate its damages. If Cross-Complainant’s damages are not
8 completely barred, Cross-Complainant’s recovery against this answering Cross-Defendant must be
9 reduced to the extent that Cross-Complainant’s damages, if any, were caused by Cross-Complainant’s
10 failure to properly mitigate its damages and by freely, voluntarily, and gratuitously incurring expenses,
11 which he had no legal obligation to incur.
12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
13 (Statute of Limitations)
14 AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
15 DEFENDANT ALLEGES:
16 The Complaint, and each alleged cause of action therein, is absolutely barred by all applicable
17 provisions of Code of Civil Procedure, including Sections 335.1, 337, 337.1, 337.15, 338, 339, 340,
18 343, and each of them; and by Uniform Commercial Code Sections 2607(3)(a), and 2725(1).
19 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
20 (Laches)
21 AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
22 DEFENDANT ALLEGES:
23 Cross-Complainant has been guilty of unreasonable delay in commending and in prosecuting
24 the subject civil action, to the irreparable prejudice of the Cross-Defendant, and the Complaint, and
25 each alleged cause of action therein, is therefore absolutely barred by the equitable doctrine of laches.
26 TWENTY-NINTH AFFIRMATIVE DEFENSE
27 (Waiver)
28
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx
1 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE, CROSS-
2 DEFENDANT ALLEGES:
3 The Complaint, and each alleged cause of action therein, is absolutely barred by virtue of Cross-
4 Complainant' s knowing and voluntary waiver of any further obligations or liabilities of this answering
5 Cross-Defendant, if any there were.
6 THIRTIETH AFFIRMATIVE DEFENSE
7 (Right to Assert Additional Affirmative Defenses)
8 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE, CROSS-
9 DEFENDANT ALLEGES:
10 Cross-Defendant presently has insufficient knowledge or information upon which to form a
11 belief as to whether it may have additional, as yet unstated, affirmative defenses. Cross-Defendant
12 hereby reserves its right to assert additional affirmative defenses in the event that discovery indicates
13 that additional affirmative defenses are appropriate and to amend its Answer accordingly.
14 PRAYER FOR RELIEF
15 WHEREFORE, the Cross-Defendant prays for judgment as follows:
16 1. That the Cross-Complainant take nothing by reason of the Cross-Complaint, and that the
17 same be dismissed with prejudice on the merits;
18 2. For Cross-Defendant' s costs of suit herein incurred;
19 3. For an award of Cross-Defendant' s reasonable attorneys' fees herein incurred; and
20 4. For such other relief as the Court deems just and proper.
21
22
23
Dated: April 19, 2023 Bf~~~~=====~
MICHAE T. BEUSELINCK
Attorney for Defendant and Cross-Defendant
24 CNA EQUITY GROUP, INC.
25
26
27
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ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
C:\Users\mikeb\Box\Clients\Mul ry - Mike\Jason Neel Civil Acti on\Pl eadings\P-Answer Rushmyfil e XC.docx
1 Jason Neel v. Superior Loan Servicing, et al.
Santa Cruz County Superior Court Case No.: 22CV01758
2
PROOF OF SERVICE
3
I am over the age of eighteen (18) years and not a party to the within action. I am employed at
4 the Michael Beuselinck P.C. located at 490 43rd Street #37, Oakland, California 94609.
5 On the date indicated below, I served the following documents enclosed in a sealed envelope on
the listed addresses:
6
DOCUMENT: ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC.
7
ADDRESSES:
8 Thornton Davidson Pamela D. Simmons
Thornton Davidson, P.C. William Purdy
9 1195 W. Shaw Avenue, Suite A Law Office of Simmons & Purdy
Fresno, CA 93711 2425 Porter Street, Suite 10
10 thornton@thorntondavidsonlaw.com Soquel, CA 95073
cc: tish@thorntondavidsonlaw.com pamela@pamelaw.com
11 Attorney for Plaintiff bill@pamelaw.com
Attorney for Plaintiff
12
Jeffrey H. Lowenthal Cody Molica
13 Edward Egan Smith 1029 North Road #175
Matthew W. Delbridge Westfield, MA 01085
14
Steyer Lowenthal Boodrookas Alvarez & Smith cmolica11@gmail.com
15 LLP Defendant and Cross-Defendant, in pro per
235 Pine Street, 15th Floor
16 San Francisco, CA 94104
jlowenthal@steyerlaw.com
17 esmith@steyerlaw.com
18 mdelbridge@steyerlaw.com
Attorneys for Defendant
19 UNITED STATES REAL ESTATE
CORPORATION
20
Edward T. Weber Mark J. Sarni
21 Kristi M. Wells 3424 Carson Street, Suite 350
Law Office of Edward T. Weber Torrance, CA 90503
22
17151 Newhope Street, Suite 203 southbayadr@gmail.com
23 Fountain Valley, CA 92708 Attorney for Defendant and Cross-
ed@eweberlegal.com Complainant
24 kristi@eweberlegal.com RUSHMYFILE, INC.
Attorneys for Defendants
25 SUPERIOR LOAN SERVICING and ASSET
26 DEFAULT MANAGEMENT, INC.
27
28
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PROOF OF SERVICE
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC POS.docx
[ ] (BY MAIL) I placed a true copy, enclosed in a sealed, postage paid envelope, and deposited
1 same for collection and mailing at Oakland, California, following ordinary business practices,
addressed as set forth below.
2
[ ] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be
3 deposited in a box or other facility regularly maintained by the overnight courier or driver
authorized by the overnight courier to receive documents.
4
[ X] (BYE-MAIL/ELECTRONIC TRANSMISSION) I caused the said document(s) to be sent
5 to the person(s) at the e-mail address(es) indicated above or on the attachment herein.
6 I am readily familiar with this law firm's practice for the collection and processing of documents for
regular and certified mailing, overnight mail, personal service, electronic transmission, and facsimile
7 transaction, and said document(s) are deposited with the United States Postal Service or overnight courier
depository on the same day in the ordinary course of business.
8
I declare under penalty of perjury that the foregoing is true and correct.
9
10 Executed at Oakland, California on April 19, 2~~ - - - - _
~
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PROOF OF SERVICE
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Preview
1 MICHAEL T. BEUSELINCK, SBN 251991 MICHAEL BEUSELINCK P.C. 2 490 43rd Street #37 Oakland, CA 94609 3 Telephone: (925) 800-3032 mike@lawmtb.com 4 Attorneys for Defendant and Cross-Defendant 5 CNA EQUITY GROUP, INC. 6 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 IN AND FOR THE COUNTY OF SANTA CRUZ 8 9 JASON NEEL, No. 22CV01758 (Unlimited Jurisdiction) 10 Plaintiff, ANSWER TO CROSS-COMPLAINT OF 11 vs. RUSHMYFILE, INC. 12 SUPERIOR LOAN SERVICING; ASSET DEFAULT MANAGEMENT, INC.; 13 UNITED STATES REAL ESTATE 14 CORPORATION; CNA EQUITIES GROUP, LLC; AND RUSHMYFILE, BUSINESS 15 ENTITY FORM UNKNOWN, and VIGIL REAL ESTATE, BUSINESS ENTITY 16 FORM UNKNOWN and DOES 1-50, inclusive, 17 Defendants. 18 19 UNITED STATES REAL ESTATE CORPORATION, 20 Cross-Complainant, 21 v. 22 JASON NEEL; CNA EQUITY GROUP, 23 INC., a professional corporation; RUSHMYFILE, INC., a California 24 corporation; CODY MOLICA, and ROES 1 through 50, inclusive, 25 Cross-Defendants. 26 27 28 -1- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx RUSHMYFILE, INC., a California 1 corporation, 2 Cross-Complainant, 3 v. 4 CNA EQUITY GROUP, INC., a professional corporation; CODY MOLICA, an individual; 5 DONALD SCHWARTZ, an individual; DEREK WHEAT AKA MIGUEL WHEAT 6 AKA SAM WHEAT, an individual; and MOES 1 through 50, inclusive, 7 Cross-Defendants. 8 9 Cross-Defendant CNA EQUITY GROUP, INC., a California professional corporation 10 (hereinafter “Cross-Defendant”) hereby answers the Cross-Complaint (the “Cross-Complaint”) of 11 RUSHMYFILE, INC., a California corporation (hereinafter "Cross-Complainant") as follows: 12 GENERAL DENIAL 13 Pursuant to California Code of Civil Procedure Section 431.30, Cross-Defendant denies 14 generally and specifically each and every allegation of the Cross-Complaint filed by Cross- 15 Complainant, and the whole thereof. 16 Cross-Defendant further denies that the Cross-Complainant has been damaged in any sum or 17 manner by reason of any acts or omissions on the part of Cross-Defendant, or on the part of any of 18 Cross-Defendant’s agents, servants, or representatives, and so deny that Cross-Complainant is entitled 19 to any relief. 20 SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES 21 By alleging the Separate and Additional Affirmative Defenses set forth below, Cross-Defendant 22 does not agree or concede that it has the burden of proof or the burden of persuasion on any of these 23 issues. 24 FIRST AFFIRMATIVE DEFENSE 25 (Failure to State a Cause of Action) 26 AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 27 ALLEGES: 28 -2- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 The Complaint, and each purported cause of action therein, is barred, in whole or in part, 2 because the Complaint fails to allege facts sufficient to state or constitute a claim against the Cross- 3 Defendant and further fails to allege facts sufficient to entitle the Cross-Complainant to the relief 4 sought, or to any other relief whatsoever, from Cross-Defendant. 5 SECOND AFFIRMATIVE DEFENSE 6 (Failure to State a Cause of Action) 7 AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 8 ALLEGES: 9 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 10 constitute a cause of action for Declaratory Relief. 11 THIRD AFFIRMATIVE DEFENSE 12 (Failure to State a Cause of Action) 13 AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 14 ALLEGES: 15 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 16 constitute a cause of action for Reformation of Deed of Trust. 17 FOURTH AFFIRMATIVE DEFENSE 18 (Failure to State a Cause of Action) 19 AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 20 ALLEGES: 21 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 22 constitute a cause of action for Quiet Title. 23 FIFTH AFFIRMATIVE DEFENSE 24 (Failure to State a Cause of Action) 25 AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 26 ALLEGES: 27 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 28 constitute a cause of action for Equitable Subrogation. -3- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 SIXTH AFFIRMATIVE DEFENSE 2 (Failure to State a Cause of Action) 3 AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 4 ALLEGES: 5 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 6 constitute a cause of action for Equitable Lien. 7 SEVENTH AFFIRMATIVE DEFENSE 8 (Failure to State a Cause of Action) 9 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 10 DEFENDANT ALLEGES: 11 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 12 constitute a cause of action for Judicial Foreclosure. 13 EIGHTH AFFIRMATIVE DEFENSE 14 (Failure to State a Cause of Action) 15 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 16 DEFENDANT ALLEGES: 17 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 18 constitute a cause of action for Implied Contractual Indemnity. 19 NINTH AFFIRMATIVE DEFENSE 20 (Failure to State a Cause of Action) 21 AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 22 ALLEGES: 23 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 24 constitute a cause of action for Equitable Indemnity. 25 TENTH AFFIRMATIVE DEFENSE 26 (Estoppel) 27 AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, CROSS-DEFENDANT 28 ALLEGES: -4- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 Cross-Complainant, by and through its conduct, acts and deeds, has caused Cross-Defendant to 2 change position, and to act to its detriment and prejudice. The Complaint, and each alleged cause of 3 action therein, is therefore absolutely barred by the equitable doctrine of estoppel. 4 ELEVENTH AFFIRMATIVE DEFENSE 5 (Unclean Hands) 6 AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 7 DEFENDANT ALLEGES: 8 Cross-Complainant has been guilty of inequitable conduct with respect to the matters alleged in 9 the Complaint, and such inequitable conduct shall absolutely bar Cross-Complainant’s recovery herein 10 under the equitable doctrine of unclean hands. 11 TWELFTH AFFIRMATIVE DEFENSE 12 (Performance to Joint Creditors) 13 AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 14 DEFENDANT ALLEGES: 15 The Complaint, and each alleged cause of action therein, is absolutely barred by the provisions 16 of Civil Code Sections 1474, 1475, 1476, 1477, and each of them. 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 (No Joint and Several Liability) 19 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 20 DEFENDANT ALLEGES: 21 The Complaint, and each alleged cause of action appearing therein, fails to state facts, or to 22 allege claims, which would impose joint and several liability for any of the damages claimed by any 23 party against this answering Cross-Defendant. Any liability of this answering Cross-Defendant, which 24 liability is expressly denied, would therefore be limited to those injuries, losses or damages, if any there 25 were, for which this answering Cross-Defendant’s actionable conduct, if any, was a primary 26 contributing factor. 27 FOURTEENTH AFFIRMATIVE DEFENSE 28 (Consent/Permission) -5- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 2 DEFENDANT ALLEGES: 3 Prior to the time when Cross-Defendant is alleged to have committed the acts complained of 4 Cross-Complainant invited, gave permission to, and consented to the acts alleged in the Complaint. 5 Each of the acts alleged in the Complaint, which acts are expressly denied, was done within the scope 6 of this consent and permission. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 (Performance) 9 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 10 DEFENDANT ALLEGES: 11 Cross-Defendant performed, satisfied, and discharged all duties and obligations it may have 12 owed to Cross-Complainant arising out of any and all agreements, representations or contracts made by 13 them or on their behalf barring this action. 14 SIXTEENTH AFFIRMATIVE DEFENSE 15 (Privity) 16 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 17 DEFENDANT ALLEGES: 18 Cross-Complainant was not in privity of contract with this answering Cross-Defendant and said 19 lack of privity bars recovery herein upon any theory of warranty, or upon any other cause of action or 20 theory which requires privity as a required element. 21 SEVENTEENTH AFFIRMATIVE DEFENSE 22 (Cross-Complainant’s Breach) 23 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 24 DEFENDANT ALLEGES: 25 The Complaint, and each purported cause of action therein, is barred, in whole or in part, 26 because Cross-Complainant did not comply with the terms of the contract between the parties, by 27 changing its terms, thereby denying the Cross-Defendant benefits under the contract. 28 -6- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (Recoupment) 3 AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 4 DEFENDANT ALLEGES: 5 Cross-Complainant’s recovery herein, if any, must be reduced by an amount equal to any set-off 6 which the Cross-Defendant is entitled to assert against the claims of Cross-Complainant or any other 7 claimants, by reason of any amounts paid, under applicable laws or statutes. 8 NINETEENTH AFFIRMATIVE DEFENSE 9 (Standing) 10 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 11 DEFENDANT ALLEGES: 12 The Complaint, and each cause of action therein, is barred because Cross-Complainant lacks 13 standing to assert such claims. 14 TWENTIETH AFFIRMATIVE DEFENSE 15 (No Reasonable Notice of Breach) 16 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE, CROSS- 17 DEFENDANT ALLEGES: 18 The Complaint, and each alleged cause of action therein, is absolutely barred by the failure of 19 the Cross-Complainant to give this answering Cross-Defendant reasonable notice of the alleged 20 breaches of contract or other wrongful conduct as alleged in the Complaint. 21 TWENTY-FIRST AFFIRMATIVE DEFENSE 22 (Causation) 23 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE, CROSS- 24 DEFENDANT ALLEGES: 25 Cross-Defendant’s conduct was not the cause in fact nor the proximate cause of any injury, loss, 26 or damage alleged by Cross-Complainant. 27 TWENTY-SECOND AFFIRMATIVE DEFENSE 28 (No Breach by Cross-Defendants) -7- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE, CROSS- 2 DEFENDANT ALLEGES: 3 Cross-Complainant is not entitled to the money it is demanding because Cross-Defendant has 4 done everything as required by the contract. 5 TWENTY-THIRD AFFIRMATIVE DEFENSE 6 (Fault of Third Parties) 7 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE, CROSS- 8 DEFENDANT ALLEGES: 9 The Complaint, and each purported cause of action therein, is barred, in whole or in part, or any 10 recovery should be reduced, because named and/or unnamed third parties were careless, negligent or at 11 fault for the matters alleged in the Complaint; that said carelessness, negligence or fault of said named 12 and/or unnamed third parties proximately contributed to the happening of the incident and to the 13 injuries, loss, and damage complained of by Cross-Complainant, if any; that should Cross-Complainant 14 recover damages, then Cross-Defendant is entitled to have the amount thereof abated, reduced, or 15 eliminated to the extent that said named and/or unnamed third parties caused or contributed to Cross- 16 Complainant’s injuries, if any. 17 TWENTY-FOURTH AFFIRMATIVE DEFENSE 18 (Fault of Third Parties) 19 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 20 DEFENDANT ALLEGES: 21 The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the 22 doctrine of impracticability. 23 TWENTY-FIFTH AFFIRMATIVE DEFENSE 24 (Comparative Fault) 25 AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 26 DEFENDANT ALLEGES: 27 Cross-Complainant was careless and negligent with respect to all matters alleged in the 28 Complaint, and thus was comparatively at fault and proximately caused its own damages. Accordingly, -8- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 any damages otherwise recoverable by Cross-Complainant if any there were, should be reduced in 2 proportion to its own negligence or fault. 3 TWENTY-SIXTH AFFIRMATIVE DEFENSE 4 (Failure to Mitigate Damages) 5 AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 6 DEFENDANT ALLEGES: 7 Cross-Complainant failed to mitigate its damages. If Cross-Complainant’s damages are not 8 completely barred, Cross-Complainant’s recovery against this answering Cross-Defendant must be 9 reduced to the extent that Cross-Complainant’s damages, if any, were caused by Cross-Complainant’s 10 failure to properly mitigate its damages and by freely, voluntarily, and gratuitously incurring expenses, 11 which he had no legal obligation to incur. 12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 13 (Statute of Limitations) 14 AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 15 DEFENDANT ALLEGES: 16 The Complaint, and each alleged cause of action therein, is absolutely barred by all applicable 17 provisions of Code of Civil Procedure, including Sections 335.1, 337, 337.1, 337.15, 338, 339, 340, 18 343, and each of them; and by Uniform Commercial Code Sections 2607(3)(a), and 2725(1). 19 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 20 (Laches) 21 AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 22 DEFENDANT ALLEGES: 23 Cross-Complainant has been guilty of unreasonable delay in commending and in prosecuting 24 the subject civil action, to the irreparable prejudice of the Cross-Defendant, and the Complaint, and 25 each alleged cause of action therein, is therefore absolutely barred by the equitable doctrine of laches. 26 TWENTY-NINTH AFFIRMATIVE DEFENSE 27 (Waiver) 28 -9- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC.docx 1 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE, CROSS- 2 DEFENDANT ALLEGES: 3 The Complaint, and each alleged cause of action therein, is absolutely barred by virtue of Cross- 4 Complainant' s knowing and voluntary waiver of any further obligations or liabilities of this answering 5 Cross-Defendant, if any there were. 6 THIRTIETH AFFIRMATIVE DEFENSE 7 (Right to Assert Additional Affirmative Defenses) 8 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE, CROSS- 9 DEFENDANT ALLEGES: 10 Cross-Defendant presently has insufficient knowledge or information upon which to form a 11 belief as to whether it may have additional, as yet unstated, affirmative defenses. Cross-Defendant 12 hereby reserves its right to assert additional affirmative defenses in the event that discovery indicates 13 that additional affirmative defenses are appropriate and to amend its Answer accordingly. 14 PRAYER FOR RELIEF 15 WHEREFORE, the Cross-Defendant prays for judgment as follows: 16 1. That the Cross-Complainant take nothing by reason of the Cross-Complaint, and that the 17 same be dismissed with prejudice on the merits; 18 2. For Cross-Defendant' s costs of suit herein incurred; 19 3. For an award of Cross-Defendant' s reasonable attorneys' fees herein incurred; and 20 4. For such other relief as the Court deems just and proper. 21 22 23 Dated: April 19, 2023 Bf~~~~=====~ MICHAE T. BEUSELINCK Attorney for Defendant and Cross-Defendant 24 CNA EQUITY GROUP, INC. 25 26 27 28 -I 0- ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. C:\Users\mikeb\Box\Clients\Mul ry - Mike\Jason Neel Civil Acti on\Pl eadings\P-Answer Rushmyfil e XC.docx 1 Jason Neel v. Superior Loan Servicing, et al. Santa Cruz County Superior Court Case No.: 22CV01758 2 PROOF OF SERVICE 3 I am over the age of eighteen (18) years and not a party to the within action. I am employed at 4 the Michael Beuselinck P.C. located at 490 43rd Street #37, Oakland, California 94609. 5 On the date indicated below, I served the following documents enclosed in a sealed envelope on the listed addresses: 6 DOCUMENT: ANSWER TO CROSS-COMPLAINT OF RUSHMYFILE, INC. 7 ADDRESSES: 8 Thornton Davidson Pamela D. Simmons Thornton Davidson, P.C. William Purdy 9 1195 W. Shaw Avenue, Suite A Law Office of Simmons & Purdy Fresno, CA 93711 2425 Porter Street, Suite 10 10 thornton@thorntondavidsonlaw.com Soquel, CA 95073 cc: tish@thorntondavidsonlaw.com pamela@pamelaw.com 11 Attorney for Plaintiff bill@pamelaw.com Attorney for Plaintiff 12 Jeffrey H. Lowenthal Cody Molica 13 Edward Egan Smith 1029 North Road #175 Matthew W. Delbridge Westfield, MA 01085 14 Steyer Lowenthal Boodrookas Alvarez & Smith cmolica11@gmail.com 15 LLP Defendant and Cross-Defendant, in pro per 235 Pine Street, 15th Floor 16 San Francisco, CA 94104 jlowenthal@steyerlaw.com 17 esmith@steyerlaw.com 18 mdelbridge@steyerlaw.com Attorneys for Defendant 19 UNITED STATES REAL ESTATE CORPORATION 20 Edward T. Weber Mark J. Sarni 21 Kristi M. Wells 3424 Carson Street, Suite 350 Law Office of Edward T. Weber Torrance, CA 90503 22 17151 Newhope Street, Suite 203 southbayadr@gmail.com 23 Fountain Valley, CA 92708 Attorney for Defendant and Cross- ed@eweberlegal.com Complainant 24 kristi@eweberlegal.com RUSHMYFILE, INC. Attorneys for Defendants 25 SUPERIOR LOAN SERVICING and ASSET 26 DEFAULT MANAGEMENT, INC. 27 28 -1- PROOF OF SERVICE C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfile XC POS.docx [ ] (BY MAIL) I placed a true copy, enclosed in a sealed, postage paid envelope, and deposited 1 same for collection and mailing at Oakland, California, following ordinary business practices, addressed as set forth below. 2 [ ] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be 3 deposited in a box or other facility regularly maintained by the overnight courier or driver authorized by the overnight courier to receive documents. 4 [ X] (BYE-MAIL/ELECTRONIC TRANSMISSION) I caused the said document(s) to be sent 5 to the person(s) at the e-mail address(es) indicated above or on the attachment herein. 6 I am readily familiar with this law firm's practice for the collection and processing of documents for regular and certified mailing, overnight mail, personal service, electronic transmission, and facsimile 7 transaction, and said document(s) are deposited with the United States Postal Service or overnight courier depository on the same day in the ordinary course of business. 8 I declare under penalty of perjury that the foregoing is true and correct. 9 10 Executed at Oakland, California on April 19, 2~~ - - - - _ ~ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- PROOF OF SERVICE C:\Users\mikeb\Box\Clients\M uhy - Mike\Jason Neel Civil Action\Pleadings\P-Answer Rushmyfil e XC POS.docx