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  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
  • ANA MACDONALD VS. DUKE PARTNERS, LLC ET AL QUIET TITLE - REAL PROPERTY document preview
						
                                

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1 Tiffany R. Norman (State Bar No. 239873) Brett L. Gibbs (State Bar No. 251000) 2 ELECTRONICALLY trn LAW ASSOCIATES 1160 Battery Street FILED 3 East Building, Suite 100 Superior Court of California, County of San Francisco San Francisco, CA 94111 4 Telephone: (415) 823-4566 03/25/2024 Facsimile: (415) 762-5490 Clerk of the Court 5 Email: tiffany@trnlaw.com BY: RONNIE OTERO Deputy Clerk brett@trnlaw.com 6 7 Attorneys for Judgment Creditor and Intervenor TRN Law Associates and Tiffany R. Norman 8 9 SUPERIOR COURT OF CALIFORNIA 10 CITY AND COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL CASE 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 ANA MACDONALD and LUELLA BROWN, Case No. CGC-16-552327 12 Plaintiff, INTERVENORS TIFFANY R. NORMAN PHONE 415•823•4566 FAX 415•762•5490 13 AND TRN LAW ASSOCIATES’ TRIAL vs. TRN LAW ASSOCIATES BRIEF 14 DUKE PARTNERS, LLC, et al. 15 Defendants DATE: March 25, 2024 16 _______________________________________ TIME: 9:30 a.m. DEPT.: 206 17 TIFFANY R. NORMAN, and TRN LAW ASSOCIATES, 18 Intervenors and Cross-Complainants, 19 vs. 20 21 ANA MACDONALD, 22 LUELLA BROWN, 23 DUKE PARTNERS, LLC, 24 NATIONSTAR MORTGAGE, LLC, 25 and ROES 1 through 20, 26 Cross-Defendants. 27 28 29 MacDonald v. Duke Partners, et. al. 1 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 Intervenors Tiffany R. Norman and TRN Law Associates (altogether “TRN”) hereby 2 submits their Trial Brief as follows: 3 I. BACKGROUND 4 A. The Parties and their History 5 i. Plaintiffs and TRN 6 Overall, the Court should be aware that this is not a straightforward or “typical” case. 7 TRN were the former attorneys for Plaintiffs and Cross-Defendants ANA MACDONALD and 8 LUELLA BROWN (hereafter “MacDonald” or “Brown” and together referred to as 9 “Plaintiffs”) in the instant action. TRN represented Plaintiffs from 2016 to approximately 10 October 2020. After four years of litigation and preparation for trial, on the second day of trial, 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 Tiffany R. Norman’s father died. Thus, the trial had to be continued. On the eve of the 12 continued trial, TRN obtained a very favorable proposed settlement for Plaintiffs. PHONE 415•823•4566 FAX 415•762•5490 13 Despite the favorable outcome, Plaintiffs terminated TRN’s services and failed to pay TRN LAW ASSOCIATES 14 TRN for their services in the amount of $172,585.29, including almost $50,000.00 in costs that 15 TRN had paid. 16 Ultimately, TRN was forced to file a complaint for unpaid fees against Plaintiffs in a 17 separate action (San Francisco Superior Court Case No. CGC-21-589687). TRN obtained a 18 Judgment from the Court in the amount of $172,585.29 against Plaintiffs, with 10% accruing 19 annually. 20 After receiving permission from this Court, on September 21, 2022, TRN filed an 21 Intervention by Plaintiffs in this lawsuit relating to the Judgment. 22 ii. Plaintiffs and Defendants 23 The actual underlying case was regarding a foreclosure of a property 1148 Eddy Street, 24 Unit C, San Francisco, CA 94109 (hereafter the “Property”) after a loan modification was not 25 finalized. The genesis of this case was a single missing piece of paper. Plaintiffs believed they 26 returned all pages of the executed loan modification documents to Defendants and Cross- 27 Complainant Nationstar Mortgage, LLC and Defendant Wells Fargo Bank, NA, as Trustee for 28 /// 29 MacDonald v. Duke Partners, et. al. 2 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 Banc of America Mortgage Securities, Inc. (hereafter, collectively “Nationstar”). Yet, Nationstar 2 argued the first page of the permanent modification was missing. 3 Nationstar used the missing document as an excuse to claim the loan modification was 4 incomplete and foreclosed on the property. Yet, did not tell Plaintiffs of the foreclosure, or the 5 “incomplete” final loan modification documents. It did so while also accepting the loan 6 payments that Nationstar required Plaintiffs to make as per the loan modification. In fact, 7 Nationstar purported to deny the loan modification on November 5, 2015; yet accepted payments 8 for December 2015, January 2016, and February 2016, despite foreclosing in February 2016. 9 Defendant and Cross-Defendant Duke Partners, LLC (hereafter “Duke”), and Plaintiff 10 Luella Brown both claimed title to the Property. However, Duke had no valid title to the 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 Property because the foreclosure sale from which Duke claims it derives title was void, and a 12 void foreclosure sale transfers no title. Bank of America, N.A. v. La Jolla Group II (2005) 129 PHONE 415•823•4566 FAX 415•762•5490 13 Cal.App.4th 706, 714 (when a foreclosure sale is improper because the loan was current, and TRN LAW ASSOCIATES 14 therefore there was no right to conduct a foreclosure sale, the sale is void). 15 Ultimately, the parties attended a Mandatory Settlement Conference on August 12, 2021 16 where a global settlement was reached and the Memorandum of Understanding (hereafter 17 “MOU”) was signed (See Exhibit A).1 The settlement consisted of, among other things, 18 Nationstar paying Plaintiff Brown $460,000 in exchange for a dismissal of the instant action. 19 Plaintiff Brown was then to use part of the Nationstar funds to purchase the Property from 20 Duke. Provisions of the purchase of the Property by Plaintiff Brown from Duke were provided 21 for in the MOU. Following the execution of the MOU, a formal settlement agreement was to be 22 drafted and executed by the parties. 23 B. Actions Taken by Defendants Under the MOU 24 For the last 2+ years, Defendants and Cross-Defendants Duke Partners, LLC and 25 Nationstar Mortgage, LLC and Defendant Wells Fargo Bank, NA, as Trustee for Banc of 26 America Mortgage Securities, Inc. (hereafter, collectively “Defendants”) have been shouting 27 28 1 TRN was not representing Plaintiffs at this time. 29 MacDonald v. Duke Partners, et. al. 3 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 from the proverbial rooftops to get this Court to enforce the MOU, and, ultimately, dismiss this 2 case pursuant to the MOU. In fact, the Court did, in light of Defendants’ requests, enforce 3 parts of the MOU to the benefit of Defendants. 4 On October 27, 2021, Duke filed in this action an Ex Parte Application for Entry of 5 Judgment for Possession Pursuant to the Memorandum of Understanding Entered into by the 6 Parties (See Exhibit B). On October 28, 2021, the Court granted Duke’s Ex Parte Application 7 (See Exhibit C). On November 1, 2021, the Writ of Possession of Real Property (hereafter, the 8 “Writ”) was issued by the Clerk of the Court. On November 10, 2021, the San Francisco 9 Sheriff’s Office executed the Writ. On February 7, 2022, the Writ was returned and filed with 10 the court as fully satisfied (See Exhibit D). 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 In simpler words, this means that the MOU was enforced, and Duke gained possession 12 of the Property under and pursuant to the MOU. PHONE 415•823•4566 FAX 415•762•5490 13 There are additional examples of Defendants arguing that the MOU was valid and TRN LAW ASSOCIATES 14 enforceable, even referring to it as the “Settlement Agreement”. The Defendants filed multiple 15 motions and supporting declarations stating that the case was settled, the MOU was enforceable 16 or asking the court to enforce the MOU. These filings include: 17 1. Duke Partners, LLC’s Notice of Motion and Motion to Dismiss Action, or in the Alternative, to Enforce Settlement Agreement (See Exhibit E); 18 2. Joinder of Nationstar Mortgage, LLC and Wells Fargo Bank, N.A., as Trustee for 19 Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2005-I to Defendant Duke Partners, LLC’s Notice of Motion and Motion 20 to Dismiss Action, or in the Alternative, to Enforce Settlement Agreement (See Exhibit F); 21 3. Declaration of Elaine Soong in Support of Duke Partners, LLC’s Request to 22 Unconsolidated the Unlawful Detainer and Unlimited Actions and Dismiss the Unlimited Action at the CRC 3.1385 Order to Show Cause Hearing (See Exhibit 23 G, paras. 8, 11-13); 24 4. Declaration of Rhonda L. Nelson in Support of Defendants’ Request to Dismiss the Action at the Order to Show Cause Hearing filed on February 14, 2022 (See 25 Exhibit H, paras. 5, 7-9). 26 5. Declaration of Meghan E. Turner in Support of Duke Partners, LLC’s Request to Unconsolidated the Unlawful Detainer and Unlimited Actions and Dismiss the 27 Unlimited Action at the CRC 3.1385 Order to Show Cause Hearing (See Exhibit I, paras. 13, 16-18); 28 29 MacDonald v. Duke Partners, et. al. 4 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 6. Amended Declaration Meghan E. Turner in Support of Duke Partners, LLC’s 1 Request to Unconsolidated the Unlawful Detainer and Unlimited Actions and Dismiss the Unlimited Action at the CRC 3.1385 Order to Show Cause Hearing 2 (See Exhibit J, paras. 13, 16-18) 3 7. Declaration of Meghan E. Turner in Support of Intervenors’ Motion to Enforce Settlement (See Exhibit K); 4 8. Second Declaration of Elaine Soong in Support of Duke Partners, LLC’s Request 5 to Unconsolidated the Unlawful Detainer and Unlimited Actions and Dismiss the Unlimited Action at the CRC 3.1385 Order to Show Cause Hearing (See Exhibit 6 L, paras. 9, 12-14); and 7 9. Declaration of Rhonda L. Nelson in Support of Defendants’ Request to Dismiss the Action at the Order to Show Cause Hearing filed on May 2, 2022 (See 8 Exhibit M, paras. 5, 7-9). 9 Emphasis added. 10 C. The Current Issue 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 So, if this case was settled and there was a Settlement Agreement, or MOU, why are we 12 here? As the saying goes, follow the money. Nationstar will not pay Plaintiff Brown the PHONE 415•823•4566 FAX 415•762•5490 13 $460,000 they said they would pay under the MOU (or interplead it to the court on her behalf) TRN LAW ASSOCIATES 14 despite Duke, with Nationstar’s support, using the MOU to obtain a Writ of Possession for the 15 Property to evict Plaintiffs from the Property. In other words, the MOU is only enforceable, 16 according to Nationstar, to help Duke take the Property from Plaintiffs, but when it comes to 17 paying Plaintiffs the money owed under the MOU, Nationstar says the MOU is not enforceable. 18 Unfortunately, following the execution of the MOU, and on information and belief, 19 eviction from the Property, Plaintiffs, for lack of a better term, “disappeared” from the action. 20 TRN has tried many avenues to reach Plaintiffs. On the last attempt to reach Plaintiff Brown, 21 TRN attorney Brett Gibbs was able to reach her by phone, although a productive conversation 22 was not able to take place because it quickly became clear that Plaintiff Brown was and likely 23 had been experiencing serious mental health problems. Plaintiff Brown was aggressively 24 rambling about things that did not make sense. She was yelling and swearing and stated that she 25 did not need the money from the settlement because God would take care of her and she even 26 made physical threats against Attorney Gibbs and Intervenor Tiffany Norman, and mentioned 27 guns. Once Attorney Gibbs hung up the phone, Plaintiff Brown began harassing him with a 28 constant flow of text messages. Accordingly, Attorney Gibbs and Intervenor Tiffany Norman 29 MacDonald v. Duke Partners, et. al. 5 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 felt the need to file Requests for Temporary Restraining Orders with the Marin Superior Court 2 (See Exhibits N and O). Further, they put Defendants’ counsel on notice of Ms. Brown’s threats 3 and that she mentioned them during the call. 4 Ultimately, it appears that Plaintiff Brown is mentally ill and may not have the capacity 5 to contemplate the consequences of her actions, or non-actions, when it comes to a matter as 6 serious as this. 7 Plaintiff Brown is a young black woman with multiple young children. The amount of 8 money owed to her (and to her children) by Nationstar is a life changing amount of money. Due 9 to Plaintiff Brown’s mental health issues, currently, she is putting roadblocks up to receiving the 10 money, but that may not always be the case. There are various situations in which Plaintiff 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 Brown and her children could receive the money. For example, should a conservatorship of the 12 person and/or estate be put in place for Plaintiff Brown, the conservator could accept the funds PHONE 415•823•4566 FAX 415•762•5490 13 on Plaintiff Brown’s behalf and use them to care for Plaintiff Brown and her children. The door TRN LAW ASSOCIATES 14 needs to be left open for Plaintiff Brown and her family to receive the funds should the right 15 time come and Nationstar should not receive an undeserved windfall because of Plaintiff 16 Brown’s struggles with mental health. This can only happen if the money is interpleaded with 17 the Court. 18 II. LEGAL DISCUSSION 19 The basic triable issues of material facts which remain are as follows: 20 • The MOU is in-and-of-itself an enforceable agreement; 21 • The MOU did not somehow “expire” or become unenforceable when the settlement 22 agreement was not signed by August 30, 2021; 23 • The settlement agreement did not need to be signed by August 30, 2021 for the MOU to 24 remain enforceable; and 25 • The settlement agreement did not need to be signed by “all Parties.” 26 A. The MOU. 27 The MOU is currently enforceable pursuant to its terms. The MOU states “[t]his MOU 28 highlights the key points of collaboration and responsibilities between the parties, which when 29 MacDonald v. Duke Partners, et. al. 6 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 executed by the parties shall create a binding agreement amongst the parties.” The MOU states 2 “[t]he parties agree and acknowledge that the MOU is enforceable under CCP § 664.6.” (Id. at 3 2). The MOU requires Nationstar to pay Plaintiffs $460,000. (See Exhibit A). 4 While the MOU contemplated a potential “future fully executed settlement agreement 5 and mutual release,” nowhere does the MOU require such or state that the MOU is not 6 enforceable without such. In fact, directly to the contrary, the MOU states: “Any future fully 7 executed settlement agreement and mutual release will supersede any terms and conditions 8 contained in this MOU.” In the end, no “future fully executed settlement agreement and mutual 9 release” was signed superseding the MOU, thus the MOU stands enforceable as is pursuant to 10 the above agreed-to terms. (Id.). 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 B. The MOU was Already Enforced by this Court. 12 As mentioned above the MOU has been enforced by this Court for one of the parties, PHONE 415•823•4566 FAX 415•762•5490 13 Duke. Through a filing dated October 27, 2021, Duke filed an Ex Parte Application for Entry TRN LAW ASSOCIATES 14 of Judgment Pursuant to the Memorandum of Understanding, which specifically cites the MOU 15 as a basis for its relief. (See Exhibit B). Taking this as true, in order filed October 28, 2021, the 16 Court granted Duke’s request. (See Exhibit C). 17 C. Defendants’ Contradictions Only Benefit Defendants. 18 As laid out above, Defendants have enforced the MOU in this Court. In doing so, they 19 were able to repossess Plaintiff Brown’s home. Further, Defendants have signed declarations 20 swearing under oath that this case has settled and that the MOU is enforceable as stated above. 21 As shown, Defendants have done all of this after August 2021, the purported expiration of the 22 MOU. 23 Defendants have received the benefits of the MOU. Now, they do not want to suffer to 24 its formerly agreed-to detriments—i.e. their end of the bargain. 25 Defendants want the Court to not only dismiss this lawsuit, but also to declare the MOU 26 unenforceable to specifically let Nationstar out of the $460,000 owed to Plaintiff Brown. 27 Defendants’ contradictions abound even after Plaintiff Brown’s home was repossessed, her 28 /// 29 MacDonald v. Duke Partners, et. al. 7 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 consideration in the MOU. But, if the MOU is unenforceable then Duke should have never 2 received the Property and therefore, recission of the Property could, and maybe should, occur. 3 D. The MOU is Enforceable Currently. 4 As discussed above, 5 • The MOU is currently enforceable pursuant to its terms; 6 • The Court has already enforced the MOU in part to the benefit of the 7 Defendants; and 8 • Defendants have argued that MOU was enforceable after the date that 9 Defendants now claim MOU became unenforceable. 10 Defendants argued in their MSJs that the MOU became unenforceable after “August 30, 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 2021” is facetious and contradictory to the positions—including positions used to have this 12 Court enforce the MOU—Defendants have taken in the past. PHONE 415•823•4566 FAX 415•762•5490 13 The MOU states it is a binding agreement. The MOU even states it is “enforceable under TRN LAW ASSOCIATES 14 CCP § 664.6.” The MOU does not condition its enforceability on the signing of a further 15 settlement. Importantly, the MOU did not say it was not unenforceable after “August 30, 2021” 16 if a further settlement agreement was not signed. 17 Again, the MOU was enforced by this Court. And, Defendants have adamantly tried to 18 enforce the MOU and ratified its enforceability after “August 30, 2021.” 19 Defendants’ argument in their MSJs that “the Parties’ failure ‘to perform concurrent 20 conditions during the time for performance results in a discharge of both parties' duty to 21 perform,” completely ignores the enforcement clause within the MOU itself: i.e. “[t]he parties 22 agree and acknowledge that the MOU is enforceable under CCP § 664.6.” Defendants fail to 23 factor in how the MOU’s enforceability under CCP § 664.6 factors into its discharge of their 24 duties argument. Also, again, both Defendants made arguments in the past as to its 25 enforceability to ask this Court to specifically enforce the MOU pursuant to CCP § 664.6 in 26 December of 2021 after the so-called “August 30, 2021” expiration date [ISSUF at 1, 9, 10, 11, 27 12, 13]. Further, to that point, Defendants have not even gone through the CCP § 664.6 process 28 see if the Court is willing to enforce the terms of the MOU. Further, under this argument, 29 MacDonald v. Duke Partners, et. al. 8 San Francisco Superior Court Unlimited Civil Case No. CGC-16-552327 Intervenors’ Trial Brief 30 1 Defendants should have never been able to previously enforce the MOU and, therefore, should 2 not have been able to repossess Plaintiff Brown’s home. 3 At best, the MOU itself is vague as to its current enforceability: i.e. on the one side, 4 there is clear language in the MOU on the MOU’s future enforceability if breached, and, on the 5 other side, Defendants are making the argument that the MOU expired on “August 30, 2021” 6 after a formal settlement was not executed (though such alleged expiration is not explicit in the 7 MOU). In other words, it comes down to contract interpretation. 8 “The interpretation of a contract involves ‘a two-step process: First the court 9 provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine “ambiguity,” i.e., 10 whether the language is “reasonably susceptible” to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is 1160 Battery Street, East Building • SUITE 100 • SAN FRANCISCO • CA 94111 11 “reasonably susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step – interpreting the contract. [Citation.]’ 12 [Citations omitted.]” …. PHONE 415•823•4566 FAX 415•762•5490 13 “‘In sum, courts must give a “‘reasonable and commonsense interpretation’” of a TRN LAW ASSOCIATES 14 contract consistent with the parties’ apparent intent.’ [Citations omitted.]” 15 (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432-33, 438). “[W]hen a contract is 16 ambiguous, a construction given to it by the acts and conduct of the parties with knowledge of 17 its terms, before any controversy has arisen as to its meaning, is entitled to great weight.” 18 (Universal Sales Corp. v. California Press Mfg. Co. (1942) 20 Cal.2d 751, 761; see also Enos v. 19 Armstrong (1946) 75 Cal.App.2d 663, 669 [“where the terms are ... capable of more than one 20 reasonable construction, the practical construction put upon the instrument by the parties 21 thereto, as evidenced by their conduct under it, furnishes one of the most reliable means of 22 arriving at its meaning and their intention when executing it”].) 23 Here, the terms of the MOU are “capable of more than one reasonable c