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LAW OFFICES OF PETER L. KUTRUBES
Peter L. Kutrubes (SBN 176024)
Michael K. Chan (SBN 297959)
590 Lennon Lane, Suite 180
Walnut Creek, CA 94598
Phone: (925) 939-9600
Fax: (925) 256-7660
Email: pkutrubes@kutrubeslaw.com
mchan@kutrubeslaw.com
Attorneys for Defendant
Martin Eng
ELECTRONICALLY
FILED
Supertor Court of California,
‘County of San Francisco
09/14/2016
Clerk of the Court
BY:ANNA TORRES
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MARTIN ENG,
Plaintiff,
vs.
JP MORGAN CHASE BANK, N.A.;
QUALITY LOAN SERVICES; LENDER
PROCESSING SERVICES, INC., DOES 1 -
1000 inclusive,
Defendants.
Case No: CGC 15 546377
PLAINTIFF’S OPPOSITION TO
DEFENDANT JP MORGAN CHASE
BANK, N.A.’S MOTION FOR
JUDGMENT ON THE PLEADINGS
DATE: September 23, 2016
TIME: 9:30 A.M.
DEPT.: 302
Plaintiff MARTIN LEE ENG, by and through his counsel, opposes Defendant JP
MORGAN CHASE, N.A. (hereinafter “Defendant CHASE” or “CHASE”)’s Motion for
Judgment on the Pleadings as follows:
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGSa uo
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INTRODUCTION
Defendant CHASE filed a demurrer prior to answering Plaintiff's complaint. On or
about April 4, 2016, the Court completely overruled Defendant CHASE’S demurrer.
In July of 2016, Defendant CHASE filed this present motion that was filed partially on
the same grounds — citing the same facts and law concerning the statute of limitations issues as
Defendant CHASE raised in the demurrer.
California Code of Civil Procedure §438 that provides that a motion for judgment on
the pleadings is improper on grounds previously raised by a demurrer unless there has been a
“material change in applicable case law or statute” since the demurrer was overruled. (CCP §
438(g)(1); see Yancey v. Sup.Ct. (Neal) (1994) 28 CA4th 558, 562, 33 CR2d 777, 779, fn. 1.)
Defendant CHASE cites no change in the law. The facts and law defendant cites in this motion
is not new at all. Defendant CHASE simply reasserted the facts and law it cited in in its
demurrer filed in February 2016.
In addition, Defendant CHASE did not acknowledge or mention in this motion that it
previously filed a demurrer and ignores the facts that its demurrer was completely overruled by
this court five months ago. Failure to disclose that a prior demurrer on the same grounds had
been overruled might lead a court to rule that the present motion violates an implied
“certification” as to its legal and factual merit, warranting sanctions under CCP § 128.7.
In summary, this motion for judgment on the pleadings is Defendant CHASE’s attempt
to relitigate that which it already lost on demurrer in April.
The only new issue that Defendant CHASE introduces in this motion is res judicata.
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
>DISCUSSION
On April 4, 2016, the court held as follows with respect to Defendant CHASE’s
demurrer:
“DEFENDANT JP MORGAN CHASE BANK, N.A'S DEMURRER TO 1ST
AMENDED COMPLAINT IS OVERRULED IN ITS ENTIRETY. PER YVANOVA V. NEW
CENTURY MORTGAGE (2016) 62 CAL. 4TH 919, THE BANK'S ARGUMENT THAT MR.
ENG DOES NOT HAVE STANDING TO CHALLENGE THE ASSIGNMENT OF THE
LOAN LACKS MERIT. PER JOLLEY V. CHASE HOME FINANCE, LLC (2013) 213 CAL.
APP. 4TH 872, THE BANK'S ARGUMENT THAT THE COURT SHOULD TAKE JUDICIAL
NOTICE OF THE PPA AND THE INTERPRETATION AND MEANING ASCRIBED TO IT
BY THE BANK AND FIND AS A MATTER OF LAW THAT THE BANK IS THE ACTUAL
BENEFICIARY ALSO LACKS MERIT. SCOTT V. JP MORGAN CHASE (2013) 214 CAL.
APP. 4TH 743 DOES NOT REQUIRE A DIFFERENT RESULT. MOREOVER, THIS
ARGUMENT DOES NOT TAKE INTO ACCOUNT THAT MR. ENG HAS ALSO PLED
THAT THE UNDERLYING LOAN WAS VOID AB INITIO. ALL OF THE BANK'S
STATUTE OF LIMITATIONS ARGUMENTS LACK MERIT BECAUSE THE FACE OF THE
FIRST AMENDED COMPLAINT DOES NOT CLEARLY AND AFFIRMATIVELY SHOW
THAT ANY OF MR. ENG'S CLAIMS ARE TIME-BARRED. ON A DEMURRER, THE
COURT IS REQUIRED TO ACCEPT THE ALLEGATIONS THAT CLAIMS MR. ENG DID
NOT DISCOVER THE GROUNDS FOR HIS CLAIMS TILL FEBRUARY 2013 OR LATER
AND THAT SOME OR ALL OF HIS CLAIMS DID NOT ACCRUE UNTIL HE WAS
DISPOSSESSED. ALL OF THE CLAIMS ARE ADEQUATELY PLED.”
Defendant CHASE now argues it is entitled to judgment on the pleadings based on the
allegations that Plaintiff's claims are time barred. This issue was litigated and decided by the
court in Defendant CHASE’s demurrer in April. The standard for deciding a motion for
judgment on the pleadings is the same as a demurrer. In Defendant Chase’s demurrer, the
court held that Plaintiff's claims were not time barred for purposes of the demurrer. Similarly,
for purposes of this motion, Plaintiff's claims, are not time barred.
The court should deny Defendant CHASE’s motion as it relates to allegations that one
or more causes of action are barred by the applicable statute of limitations as this issue has
already been litigated and decided by the court’s ruling on Defendant CHASE’s demurrer.
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
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Defendant CHASE’s other argument in support of its motion for judgment on the
pleadings is res judicata based on Plaintiff's 2009 lawsuit.
Plaintiff's 2009 lawsuit was drafted and filed by Plaintiff in pro per. Plaintiff's initial
complaint included one or more similar causes of action against the same defendants
(Defendants CHASE, QUALITY LOAN SERVICE CORP, and PLM LENDERS SERVICES).
However, contrary to Defendant CHASE’s allegations in its motion, the allegations are not
“nearly identical” particularly concerning Defendant CHASE’s authority to foreclose.
According to the law, in order for Defendant CHASE to be successful on its motion
based on res judicata, “(1) the decision in the prior proceeding is final and on the merits; (2)
the present proceeding is on the same cause of action as the prior proceeding; and (3) the
parties in the present proceeding or parties in privity with them were parties to the prior
proceeding.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126
Cal.App.4th 1180, 1202, 24 Cal.Rptr.3d 543 (Federation ). However, res judicata “is not a bar
to claims that arise after the initial complaint is filed.” (Allied Fire Protection v. Diede
Construction, Inc. (2005) 127 Cal.App.4th 150, 155, 25 Cal.Rptr.3d 195 (Allied Fire
Protection ); see Yager v. Yager (1936) 7 Cal.2d 213, 217, 60 P.2d 422.) Res judicata does
not apply when there are changed conditions and new facts which were not in existence at the
time the action was filed upon which the prior judgment is based. (McGaffey v. Sudowitz
(1961)189 Cal.App.2d 215, 217-218, 10 Cal.Rptr. 862.) This exception to the doctrine
encompasses claims based on rights that arise after the filing of the complaint in the first
action, but before judgment is entered, such as in Plaintiff's present lawsuit against Defendant
CHASE. (Yager v. Yager, supra, 7 Cal.2d at p. 217, 60 P.2d 422.)
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
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In Plaintiff's 2009 lawsuit, Plaintiff alleges that Defendant CHASE lacked the authority
to foreclose, but failed to plead any facts or sufficient allegations to support a cause of action
of wrongful foreclosure against Defendant CHASE. In Plaintiff's third amended complaint for
the 2009 lawsuit, Plaintiff pled “Wrongful Foreclosure” based on the allegations that
Defendant CHASE did not have the original note, and therefore lacked standing as follows:
“Tt is hereby alleged that defendants do not have standing to bring foreclosure because
they are not in possession of the original note. In addition, it was defendant Washington
Mutual who was the original note holder and it is an exclusive right of the original note holder
to foreclose. The other defendants who are attempting to bring a foreclosure do not have the
right under the power of sale of the deed of trust to bring an action for foreclosure. It is alleged
that the foreclosure that is being sought is improper for that reason, among others.” (Plaintiff's
Third Amended Complaint from 2009, Exhibit J of Defendant CHASE’s Motion for Judgment
on the Pleadings, paragraph 19, pages 4 and 5.)
The facts and circumstances in this present lawsuit are substantially different and newly
discovered giving rise to a new claim against CHASE for wrongful foreclosure well after the
filing and dismissal of the 2009 lawsuit. These new facts gave rise to Plaintiffs present cause
of action. These facts were not discovered until after Plaintiff filed the 2009 lawsuit, leading to
a different cause of action that Defendant CHASE lacked standing to foreclose on Plaintiffs
property and the underlying allegations are substantially different than those in the 2009 case
as set forth as follows:
“122. The DOT and Note in favor of the non-existent entity Washington Mutual
Bank, F.A. rendered the contracts invalid pursuant to Civil Code §§1550 and 1558.
123. As alleged previously and incorporated herein, Plaintiff did not learn of the non-
existence of Washington Mutual, F.A. until recently.
124. Material non-compliance with California Statutes governing non-judicial
foreclosures and provision of the Deed of Trust governing the exercise of sale rendered the
purported Trustee Sale illegal and void.
125. As discussed more fully above, Defendants was not authorized to exercise the
power of sale because Plaintiff was not in default to Washington Mutual Bank, F.A. or Chase.
126. Defendant also violated California Codes governing non-judicial foreclosures
including:
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
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a) The NOD is defective as it states the party incurring the default is Washington
Mutual Bank, F.A. which is a false statement.
b) Plaintiffs herein alleges that the entire series of instruments, Deed of Trust, Notice of
Default, Substitution of Trustee, and Trustee Deed Upon Sale were created for the sole intent
to deceive Plaintiff and the public into believing Washington Mutual Bank, F.A. was the
beneficiary when in fact it was not.
127. Chase nor Washington Mutual Bank, F.A. was the proper party with authority
or right to declare a default, to exercise the power of sale and order a Trustee Sale, as detailed
more fully herein.
128. Chase’s incomplete PAA does not provide a list of assets acquired at the time of
the FDIC supervised acquisition, and Plaintiff alleges on information and belief based on
former employees of the FDIC that no such lists exist.
129. Chase’s allegations that it acquired all rights, title and interest can only extend
to the institution that existed at the time, which was not Washington Mutual Bank, F.A.
130. Even if Chase could actually produce a list that demonstrates that Plaintiff's
loan was an asset at the time of purchase, the contracts were void such that it acquired nothing
and it knew or should have known this.
131. Defendants conducted an illegal sale without a contractual basis.
132. Defendants conducted an illegal sale without statutory authority or basis.”
(Plaintiff's first amended complaint, pages 17 and 18.)
This new cause of action for wrongful foreclosure is not subject to being dismissed
pursuant to the doctrine of res judicata as it has not been litigated and fully adjudicated prior to
this case.
WHEREFORE, Plaintiff prays that the Court deny Defendant CHASE’s motion for
judgment on the pleadings as follows:
1. That the court deny Defendant CHASE’s motion for judgment on the pleadings in
its entirety;
2. That the Court find that Defendant’s motion for judgment on the pleadings violated
CCP §438 and to the extent issues were previously decided through Court’s ruling
on Defendant CHASE’s demurrer in April 2016;
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
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3. That the Court award costs and reasonable attorney fees to Plaintiff for the
opposition of this motion or any portion thereof; and
4. For such other and further relief as the Court may deem proper.
Respectfully submitted,
Dated: September 14, 2016 LAW OFFICES OF PETER L. KUTRUBES
By: /s/ Peter L. Kutrubes
Peter L. Kutrubes
Law Offices of Peter L. Kutrubes
Attorney for Defendant
Joanne Eng
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
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PROOF OF SERVICE
Iam employed at 590 Lennon Lane, Suite 180, Walnut Creek, California. Iam over 18
years old and am not a party to this action.
I served the:
Plaintiff's Opposition to Defendant Chase’s Motion for Judgment on the Pleadings
by:
(_) personally handing, on > 20 ; the documents
described above to the person listed below at the address listed below.
(xx) depositing, on September 13, 2016, at Walnut Creek, CA, a sealed envelope or
sealed envelopes in the United State mail, first class, postage fully prepaid,
containing the document(s) described above and addressed as described below.
() facsimile transmission, on » 20 , of the documents
described above from (925) 256-7660 to the person listed below at the facsimile
number listed below.
() _ electronic transmission, on , 20 , of the documents
described above from pkutrubes@kutrubeslaw.com to the person listed below at
the e-mail address listed below.
BRYAN CAVE LLP
Daniel T. Rockey, Attorney At Law
Goli Mahdavi, Attorney At Law
Chase Haslam, Attorney At Law
560 Mission Street, 25" Floor
San Francisco, CA 94105-2994
Leticia “Tia” Butler, Esq.
McCarthy & Holthus, LLP
1770 4" Avenue
San Diego, CA 92101
Tel: (619) 685-4800
Fax: (619) 685-4811
Attorneys for Quality Loan Service Corp.
Ibutler@mecarthyholthus.com
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
8Dn Oo ® WN
Stanley W. Smith
Leo M. LaRocca
Niven & Smith
555 Montgomery Street, Suite 1750
San Francisco, CA 94111-2517
Tel: (415) 981-5451
Fax: (415) 433-5439
Attorneys for Sotheby’s International Realty
Joseph L. DeClue Esq.
De Clue Law Group
2372 SE Bristol Street, 2 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
Fax: (949) 258-5899
Former Attorneys for Plaintiff
joe@decluelawgroup.com
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS.
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ELA 7 LA
PETER L. KUTRUBES
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LAW OFFICES OF PETER L. KUTRUBES Peter L. Kutrubes (SBN 176024) Michael K. Chan (SBN 297959) 590 Lennon Lane, Suite 180 Walnut Creek, CA 94598 Phone: (925) 939-9600 Fax: (925) 256-7660 Email: pkutrubes@kutrubeslaw.com mchan@kutrubeslaw.com Attorneys for Defendant Martin Eng ELECTRONICALLY FILED Supertor Court of California, ‘County of San Francisco 09/14/2016 Clerk of the Court BY:ANNA TORRES Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MARTIN ENG, Plaintiff, vs. JP MORGAN CHASE BANK, N.A.; QUALITY LOAN SERVICES; LENDER PROCESSING SERVICES, INC., DOES 1 - 1000 inclusive, Defendants. Case No: CGC 15 546377 PLAINTIFF’S OPPOSITION TO DEFENDANT JP MORGAN CHASE BANK, N.A.’S MOTION FOR JUDGMENT ON THE PLEADINGS DATE: September 23, 2016 TIME: 9:30 A.M. DEPT.: 302 Plaintiff MARTIN LEE ENG, by and through his counsel, opposes Defendant JP MORGAN CHASE, N.A. (hereinafter “Defendant CHASE” or “CHASE”)’s Motion for Judgment on the Pleadings as follows: OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGSa uo ~ INTRODUCTION Defendant CHASE filed a demurrer prior to answering Plaintiff's complaint. On or about April 4, 2016, the Court completely overruled Defendant CHASE’S demurrer. In July of 2016, Defendant CHASE filed this present motion that was filed partially on the same grounds — citing the same facts and law concerning the statute of limitations issues as Defendant CHASE raised in the demurrer. California Code of Civil Procedure §438 that provides that a motion for judgment on the pleadings is improper on grounds previously raised by a demurrer unless there has been a “material change in applicable case law or statute” since the demurrer was overruled. (CCP § 438(g)(1); see Yancey v. Sup.Ct. (Neal) (1994) 28 CA4th 558, 562, 33 CR2d 777, 779, fn. 1.) Defendant CHASE cites no change in the law. The facts and law defendant cites in this motion is not new at all. Defendant CHASE simply reasserted the facts and law it cited in in its demurrer filed in February 2016. In addition, Defendant CHASE did not acknowledge or mention in this motion that it previously filed a demurrer and ignores the facts that its demurrer was completely overruled by this court five months ago. Failure to disclose that a prior demurrer on the same grounds had been overruled might lead a court to rule that the present motion violates an implied “certification” as to its legal and factual merit, warranting sanctions under CCP § 128.7. In summary, this motion for judgment on the pleadings is Defendant CHASE’s attempt to relitigate that which it already lost on demurrer in April. The only new issue that Defendant CHASE introduces in this motion is res judicata. OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS >DISCUSSION On April 4, 2016, the court held as follows with respect to Defendant CHASE’s demurrer: “DEFENDANT JP MORGAN CHASE BANK, N.A'S DEMURRER TO 1ST AMENDED COMPLAINT IS OVERRULED IN ITS ENTIRETY. PER YVANOVA V. NEW CENTURY MORTGAGE (2016) 62 CAL. 4TH 919, THE BANK'S ARGUMENT THAT MR. ENG DOES NOT HAVE STANDING TO CHALLENGE THE ASSIGNMENT OF THE LOAN LACKS MERIT. PER JOLLEY V. CHASE HOME FINANCE, LLC (2013) 213 CAL. APP. 4TH 872, THE BANK'S ARGUMENT THAT THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE PPA AND THE INTERPRETATION AND MEANING ASCRIBED TO IT BY THE BANK AND FIND AS A MATTER OF LAW THAT THE BANK IS THE ACTUAL BENEFICIARY ALSO LACKS MERIT. SCOTT V. JP MORGAN CHASE (2013) 214 CAL. APP. 4TH 743 DOES NOT REQUIRE A DIFFERENT RESULT. MOREOVER, THIS ARGUMENT DOES NOT TAKE INTO ACCOUNT THAT MR. ENG HAS ALSO PLED THAT THE UNDERLYING LOAN WAS VOID AB INITIO. ALL OF THE BANK'S STATUTE OF LIMITATIONS ARGUMENTS LACK MERIT BECAUSE THE FACE OF THE FIRST AMENDED COMPLAINT DOES NOT CLEARLY AND AFFIRMATIVELY SHOW THAT ANY OF MR. ENG'S CLAIMS ARE TIME-BARRED. ON A DEMURRER, THE COURT IS REQUIRED TO ACCEPT THE ALLEGATIONS THAT CLAIMS MR. ENG DID NOT DISCOVER THE GROUNDS FOR HIS CLAIMS TILL FEBRUARY 2013 OR LATER AND THAT SOME OR ALL OF HIS CLAIMS DID NOT ACCRUE UNTIL HE WAS DISPOSSESSED. ALL OF THE CLAIMS ARE ADEQUATELY PLED.” Defendant CHASE now argues it is entitled to judgment on the pleadings based on the allegations that Plaintiff's claims are time barred. This issue was litigated and decided by the court in Defendant CHASE’s demurrer in April. The standard for deciding a motion for judgment on the pleadings is the same as a demurrer. In Defendant Chase’s demurrer, the court held that Plaintiff's claims were not time barred for purposes of the demurrer. Similarly, for purposes of this motion, Plaintiff's claims, are not time barred. The court should deny Defendant CHASE’s motion as it relates to allegations that one or more causes of action are barred by the applicable statute of limitations as this issue has already been litigated and decided by the court’s ruling on Defendant CHASE’s demurrer. OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 3a uo ~ Defendant CHASE’s other argument in support of its motion for judgment on the pleadings is res judicata based on Plaintiff's 2009 lawsuit. Plaintiff's 2009 lawsuit was drafted and filed by Plaintiff in pro per. Plaintiff's initial complaint included one or more similar causes of action against the same defendants (Defendants CHASE, QUALITY LOAN SERVICE CORP, and PLM LENDERS SERVICES). However, contrary to Defendant CHASE’s allegations in its motion, the allegations are not “nearly identical” particularly concerning Defendant CHASE’s authority to foreclose. According to the law, in order for Defendant CHASE to be successful on its motion based on res judicata, “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202, 24 Cal.Rptr.3d 543 (Federation ). However, res judicata “is not a bar to claims that arise after the initial complaint is filed.” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155, 25 Cal.Rptr.3d 195 (Allied Fire Protection ); see Yager v. Yager (1936) 7 Cal.2d 213, 217, 60 P.2d 422.) Res judicata does not apply when there are changed conditions and new facts which were not in existence at the time the action was filed upon which the prior judgment is based. (McGaffey v. Sudowitz (1961)189 Cal.App.2d 215, 217-218, 10 Cal.Rptr. 862.) This exception to the doctrine encompasses claims based on rights that arise after the filing of the complaint in the first action, but before judgment is entered, such as in Plaintiff's present lawsuit against Defendant CHASE. (Yager v. Yager, supra, 7 Cal.2d at p. 217, 60 P.2d 422.) OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 4a uo ~ In Plaintiff's 2009 lawsuit, Plaintiff alleges that Defendant CHASE lacked the authority to foreclose, but failed to plead any facts or sufficient allegations to support a cause of action of wrongful foreclosure against Defendant CHASE. In Plaintiff's third amended complaint for the 2009 lawsuit, Plaintiff pled “Wrongful Foreclosure” based on the allegations that Defendant CHASE did not have the original note, and therefore lacked standing as follows: “Tt is hereby alleged that defendants do not have standing to bring foreclosure because they are not in possession of the original note. In addition, it was defendant Washington Mutual who was the original note holder and it is an exclusive right of the original note holder to foreclose. The other defendants who are attempting to bring a foreclosure do not have the right under the power of sale of the deed of trust to bring an action for foreclosure. It is alleged that the foreclosure that is being sought is improper for that reason, among others.” (Plaintiff's Third Amended Complaint from 2009, Exhibit J of Defendant CHASE’s Motion for Judgment on the Pleadings, paragraph 19, pages 4 and 5.) The facts and circumstances in this present lawsuit are substantially different and newly discovered giving rise to a new claim against CHASE for wrongful foreclosure well after the filing and dismissal of the 2009 lawsuit. These new facts gave rise to Plaintiffs present cause of action. These facts were not discovered until after Plaintiff filed the 2009 lawsuit, leading to a different cause of action that Defendant CHASE lacked standing to foreclose on Plaintiffs property and the underlying allegations are substantially different than those in the 2009 case as set forth as follows: “122. The DOT and Note in favor of the non-existent entity Washington Mutual Bank, F.A. rendered the contracts invalid pursuant to Civil Code §§1550 and 1558. 123. As alleged previously and incorporated herein, Plaintiff did not learn of the non- existence of Washington Mutual, F.A. until recently. 124. Material non-compliance with California Statutes governing non-judicial foreclosures and provision of the Deed of Trust governing the exercise of sale rendered the purported Trustee Sale illegal and void. 125. As discussed more fully above, Defendants was not authorized to exercise the power of sale because Plaintiff was not in default to Washington Mutual Bank, F.A. or Chase. 126. Defendant also violated California Codes governing non-judicial foreclosures including: OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 5a uo ~ a) The NOD is defective as it states the party incurring the default is Washington Mutual Bank, F.A. which is a false statement. b) Plaintiffs herein alleges that the entire series of instruments, Deed of Trust, Notice of Default, Substitution of Trustee, and Trustee Deed Upon Sale were created for the sole intent to deceive Plaintiff and the public into believing Washington Mutual Bank, F.A. was the beneficiary when in fact it was not. 127. Chase nor Washington Mutual Bank, F.A. was the proper party with authority or right to declare a default, to exercise the power of sale and order a Trustee Sale, as detailed more fully herein. 128. Chase’s incomplete PAA does not provide a list of assets acquired at the time of the FDIC supervised acquisition, and Plaintiff alleges on information and belief based on former employees of the FDIC that no such lists exist. 129. Chase’s allegations that it acquired all rights, title and interest can only extend to the institution that existed at the time, which was not Washington Mutual Bank, F.A. 130. Even if Chase could actually produce a list that demonstrates that Plaintiff's loan was an asset at the time of purchase, the contracts were void such that it acquired nothing and it knew or should have known this. 131. Defendants conducted an illegal sale without a contractual basis. 132. Defendants conducted an illegal sale without statutory authority or basis.” (Plaintiff's first amended complaint, pages 17 and 18.) This new cause of action for wrongful foreclosure is not subject to being dismissed pursuant to the doctrine of res judicata as it has not been litigated and fully adjudicated prior to this case. WHEREFORE, Plaintiff prays that the Court deny Defendant CHASE’s motion for judgment on the pleadings as follows: 1. That the court deny Defendant CHASE’s motion for judgment on the pleadings in its entirety; 2. That the Court find that Defendant’s motion for judgment on the pleadings violated CCP §438 and to the extent issues were previously decided through Court’s ruling on Defendant CHASE’s demurrer in April 2016; OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 6a uo ~ 3. That the Court award costs and reasonable attorney fees to Plaintiff for the opposition of this motion or any portion thereof; and 4. For such other and further relief as the Court may deem proper. Respectfully submitted, Dated: September 14, 2016 LAW OFFICES OF PETER L. KUTRUBES By: /s/ Peter L. Kutrubes Peter L. Kutrubes Law Offices of Peter L. Kutrubes Attorney for Defendant Joanne Eng OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 7a uo ~ PROOF OF SERVICE Iam employed at 590 Lennon Lane, Suite 180, Walnut Creek, California. Iam over 18 years old and am not a party to this action. I served the: Plaintiff's Opposition to Defendant Chase’s Motion for Judgment on the Pleadings by: (_) personally handing, on > 20 ; the documents described above to the person listed below at the address listed below. (xx) depositing, on September 13, 2016, at Walnut Creek, CA, a sealed envelope or sealed envelopes in the United State mail, first class, postage fully prepaid, containing the document(s) described above and addressed as described below. () facsimile transmission, on » 20 , of the documents described above from (925) 256-7660 to the person listed below at the facsimile number listed below. () _ electronic transmission, on , 20 , of the documents described above from pkutrubes@kutrubeslaw.com to the person listed below at the e-mail address listed below. BRYAN CAVE LLP Daniel T. Rockey, Attorney At Law Goli Mahdavi, Attorney At Law Chase Haslam, Attorney At Law 560 Mission Street, 25" Floor San Francisco, CA 94105-2994 Leticia “Tia” Butler, Esq. McCarthy & Holthus, LLP 1770 4" Avenue San Diego, CA 92101 Tel: (619) 685-4800 Fax: (619) 685-4811 Attorneys for Quality Loan Service Corp. Ibutler@mecarthyholthus.com OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS 8Dn Oo ® WN Stanley W. Smith Leo M. LaRocca Niven & Smith 555 Montgomery Street, Suite 1750 San Francisco, CA 94111-2517 Tel: (415) 981-5451 Fax: (415) 433-5439 Attorneys for Sotheby’s International Realty Joseph L. DeClue Esq. De Clue Law Group 2372 SE Bristol Street, 2 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 Fax: (949) 258-5899 Former Attorneys for Plaintiff joe@decluelawgroup.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS. 9 who ps ELA 7 LA PETER L. KUTRUBES