Preview
Jeffrey H. Lowenthal (State Bar No. 111763)
Cody T. Stroman (State Bar No. 303413)
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, California 94111
Telephone: (415) 421-3400
Facsimile: (415) 421-2234
E-mail: jlowenthal@steyerlaw.com
cstroman@steyerlaw.com
Attorneys for Cross-Complainant
Quicken Loans Inc., sued as Doe 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
HARRY YAUGER, JR., AND VICKI
YAUGER,
Plaintiffs,
Vv.
MARK D. STEVENSON; KIMBERLY A.
STEVENSON; ALLY BANK, a Utah
chartered bank; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation;
EXECUTIVE TRUSTEE SERVICES,
INC.,; all persons unknown, claiming any
legal or equitable right, title or interest in
the property described in the complaint
adverse to Plaintiffs’ title, or any cloud
upon Plaintiffs’ title thereto; and DOES 1-
30, inclusive,
Defendants.
QUICKEN LOANS INC.,
Cross-Complainant,
v.
HARRY YAUGER, JR.; VICKI
YAUGER; MARK D. STEVENSON;
KIMBERLY A. STEVENSON; USAA
FEDERAL SAVINGS BANK; and ROES
Case No. 18CV334738
QUICKEN LOANS INC.’S VERIFIED CROSS-
COMPLAINT FOR QUIET TITLE,
DECLARATORY RELIEF, EQUITABLE
SUBROGATION AND FORECLOSURE OF
EQUITABLE LIEN
Action Filed: | September 11, 2018
Trial Date: Not Assigned
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1709690.1 - F.STEVENSON1 through 50, inclusive,
Cross-Defendants.
Cross-Complainant Quicken Loans Inc. (“Cross-Complainant”) alleges as follows:
GENERAL ALLEGATIONS
1. The property that is the subject of this action is commonly known as 1630
Wyndham Drive, San Jose, California 95124 and legally described in Exhibit 1 attached hereto
and incorporated herein by reference (the “Property”).
2 Cross-Complainant is the current beneficiary under a Deed of Trust originally in
favor of Ally Bank, and its successors and assigns, as beneficiary, in the principal amount of
$417,000, recorded in the Official Records of Santa Clara County on October 26, 2010 as
Document No. 20928391 (“Ally Deed of Trust”). The Ally Deed of Trust was given to secure
repayment of a loan in the principal amount of $417,000 (“Ally Loan”). Cross-Complainant is a
bona fide encumbrancer for value, and the Ally Deed of Trust is a valid and enforceable lien
against the Property.
at Cross-Complainant is informed and believes that GMAC Mortgage Corporation
DBA ditech.com (“GMAC”) was the beneficiary of a deed of trust in the principal amount of
$322,700 recorded in the Official Records of Santa Clara County on September 30, 2003 as
Document No. 17386363 (“GMAC Deed of Trust”). Plaintiff is informed and believes that the
obligation secured by the GMAC Deed of Trust was paid and fully satisfied by the Ally Loan
proceeds, that the loan was closed and that the lien of the GMAC Deed of Trust was extinguished
on or about November 5, 2010.
4. Cross-Complainant is informed and believes that GMAC was also the beneficiary
of a deed of trust securing a home equity line of credit in the principal amount of $90,000
recorded in the Official Records of Santa Clara County on September 30, 2003 as Document No.
17386364 (“GMAC HELOC’”). Plaintiff is informed and believes that the obligation secured by
the GMAC HELOC was paid and fully satisfied by the Ally Loan proceeds, that the loan was
2
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967.) - F.STEVENSON
1709690, - F. STEVENSONoe NY DW BBW NY
RN NY N YN NN NYO wee Be ewe we me Be Be BS
ec NADA BF Bw YN = SOD we AN DH PB WY &
closed and that the lien of the GMAC HELOC was extinguished on or about January 3, 2011.
St Cross-Complainant is informed and believes that cross-defendant USAA Federal
Savings Bank (“USAA”) is the current beneficiary under a Deed of Trust in the principal amount
of $100,000, recorded in the Official Records of Santa Clara County on April 16, 2012 as
Document No. 21624822 (“USAA Deed of Trust”).
6. Cross-Complainant is informed and believes that cross-defendants Harry Yauger,
Jr., Vicki Yauger, Mark D. Stevenson and Kimberly A. Stevenson (collectively, “Borrower
Cross-Defendants”) are individuals claiming some right, title or interest in the Property.
Borrower Cross-Defendants were the borrowers and trustors under the GMAC Deed of Trust and
GMAC HELOC.
7. Cross-Complainant is not aware of the true names and capacities of those cross-
defendants named herein as Roes 1 through 50, inclusive, and therefore sues those cross-
defendants by such fictitious names. Cross-Complainant is informed and believes that the
fictitiously named cross-defendants 1 through 50, and each of them, either claim some right, title,
estate, lien or interest in the Property adverse to the claims of Cross-Complainant, which
constitute a cloud on Cross-Complainant’s title, estate and/or lien or said cross-defendants are
legally responsible for the matters herein alleged. Cross-Complainant shall seek leave of court to
amend this cross-complaint to include the true names and capacities of such fictitious cross-
defendants when the same are ascertained.
8. Cross-Complainant is informed and believes that the cross-defendants and Roes |
through 50, inclusive, and each of them, at all times herein mentioned, acted as the agents,
servants, employees, legal representatives and/or co-conspirators of the cross-defendants, and
each of them, and that all of such cross-defendants acted in concert and participated and furthered
the wrongs herein set forth, and with the knowledge, permission, consent, notification, and
adoption of the cross-defendants, and each of them.
3
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967. - F.STEVENSON
1709690,1 - F.STEVENSONoOo Oo IN DH HW BF WN
10
FIRST CAUSE OF ACTION
(Quiet Title Against All Cross-Defendants)
oh Cross-Complainant refers to and incorporates herein by reference paragraphs |
through 8, above.
10. Cross-Complainant is entitled to a judgment quieting title to the Ally Deed of
Trust as a first priority lien against all or some of the Property as of October 26, 2010. Cross-
Complainant is informed and believes that cross-defendants’ right, title, estate, lien or interest in
the Property, if any, is subject to the Ally Deed of Trust.
11. Cross-Complainant does not intend to waive its lien or violate the one action rule
set forth in Code of Civil Procedure Section 726 by seeking the relief herein, and Cross-
Complainant does not intend to waive its right to exercise the power of sale contained in the Ally
Deed of Trust or in its equitable lien as hereinafter alleged to non-judicially foreclose against the
Property.
SECOND CAUSE OF ACTION
(Declaratory Relief: Validity of Deed of Trust Against All Cross-Defendants)
12. Cross-Complainant refers to and incorporates herein by reference Paragraphs 1
through 11, above.
13. An actual controversy has arisen and now exists, as follows:
(a) Cross-Complainant contends that the Ally Deed of Trust is a valid, existing
and enforceable first lien against all or some of the Property securing the obligations contained
within the promissory note, and Cross-Complainant is a bona fide encumbrancer with respect to
said lien; and
(b) Cross-Complainant is informed and believes that cross-defendants dispute
Cross-Complainant’s contentions and contend that the Ally Deed of Trust is not a valid and
enforceable lien and existing encumbrance against all or some of the Property.
14. Cross-Complainant desires a judicial determination of the respective rights and
duties of the parties with respect to the Ally Deed of Trust. In particular, Cross-Complainant
4
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967.1 - F STEVENSON
1709690.1 - STEVENSONdesires a declaration that the Ally Deed of Trust is a valid and enforceable first lien and existing
encumbrance against all or some of the Property.
15. Such a declaration is necessary and appropriate at this time in order that Cross-
Complainant may ascertain its rights and duties with respect to the cross-defendants’ claims.
Furthermore, Cross-Complainant’s claims arise out of the same transaction, and determination of
both in one proceeding is necessary and appropriate in order to avoid the circuitry and
multiplicity of actions that would result if Cross-Complainant was forced to bring a separate
action against cross-defendants.
THIRD CAUSE OF ACTION
(Equitable Subrogation Against All Cross-Defendants)
16. Cross-Complainant refers to and incorporates herein by reference Paragraphs 1
through 15, above.
17. Cross-Complainant does not intend to waive its lien or to violate the one action
tule set forth in Code of Civil Procedure Section 726 by seeking the alternative relief herein.
However, Cross-Complainant is informed and believes that if it is determined that Cross-
Complainant is not the holder of an enforceable first priority lien against all or some of the
Property under the Ally Deed of Trust, which Cross-Complainant denies, Cross-Complainant will
have no adequate remedy at law. Unless this Court grants the relief herein requested, Cross-
Complainant will be irreparably injured, and cross-defendants will be unjustly enriched.
18. Cross-Complainant is informed and believes that the Ally Loan proceeds were
used to pay off in full prior obligations against the Property in an amount not less than
$374,365.42 including, without limitation, the GMAC Deed of Trust, GMAC HELOC and real
property taxes. Cross-Complainant is informed and believes that the Ally Loan proceeds caused
said obligations to be satisfied in full, that Cross-Complainant was not primarily liable for those
obligations, Cross-Complainant paid off those obligations to protect its security interest as a
lender against the Subject Property, and Cross-Complainant did not pay those obligations as a
volunteer. If the Ally Deed of Trust is found not to be an enforceable first priority lien against the
5
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967. - F.STEVENSON
1709690. 1 - F. STEVENSONoD wm ND HM BP WwW NY
Property, in whole or in part, for any reason, which Cross-Complainant denies, Cross-
Complainant may have no adequate remedy at law, and unless this Court grants the relief
hereinafter prayed, it will be irreparably injured and cross-defendants will be unjustly enriched.
19. In the event the Ally Deed of Trust is found not to be an enforceable first priority
lien against the Property as alleged herein, Cross-Complainant is entitled to a judgment enforcing
its right to be equitably subrogated to all liens, encumbrances, and obligations secured against the
Property which were paid off in full by the Ally Loan proceeds secured by the Ally Deed of
Trust, and the imposition of an equitable lien in an amount according to proof, and not less than
$374,365.42, together with interest, until paid.
20. Cross-Complainant is informed and believes that a judgment enforcing its
subrogation rights as alleged herein would not work any injustice to the rights of cross-defendants
because at the time the above-described liens, encumbrances, and obligations were paid, any
right, title, estate, lien or interest held by cross-defendants in the Property was subordinate to said
liens, encumbrances, and obligations, and cross-defendants were aware of the existence of said
liens, encumbrances, and obligations.
21. Asa proximate result of the foregoing and only in the event the Ally Deed of Trust
is found not to be an enforceable first priority lien against the Property, in whole or part, for any
reason, which Cross-Complainant denies, Cross-Complainant seeks an equitable lien against the
Subject Property with the terms including the power of sale and in an amount equal to the
payments which caused the above-described liens, encumbrances, and obligations to be fully
satisfied and released, together with interest, until paid.
FOURTH CAUSE OF ACTION
(Judicial Foreclosure of and/or Equitable Lien Against the Property)
22. Cross-Complainant refers to and incorporates herein by reference paragraphs 1
through 21 of this Cross-Complaint.
23. In the event that it is determined that the Ally Deed of Trust is not an enforceable
first priority lien and existing encumbrance against the whole of the Property, which Cross-
6
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967. - F.STEVENSON
17096901 - F.STEVENSONCD em ND HW PB WN
NY NN YN NN KY NY Hee we Be Be Be we we ee
eo NY AnH BF Bw NH = SOD we IRDA BF WH
Complainant denies, Cross-Complainant seeks an order for judicial foreclosure of Cross-
Complainant’s equitable lien against cross-defendants’ interest in the whole of the Property.
24, Cross-Complainant does not intend to violate the one action rule set forth in Code
of Civil Procedure Section 726 by seeking the relief herein and Cross-Complainant does not
intend to waive its right to exercise the powers of sale contained in the Ally Deed of Trust or in
its equitable lien to non-judicially foreclose against the Property.
WHEREFORE Cross-Complainant prays for judgment as follows:
1. To quiet title by declaring that Cross-Complainant has a valid first priority lien
encumbering some or all of the Property, as alleged herein;
2. For a declaratory judgment that Cross-Complainant has a valid first priority lien
encumbering some or all of the Property, as alleged herein;
3! For equitable subrogation and imposition of an equitable lien against the Property
in an amount equal to the amount paid to satisfy liens and encumbrances senior to Cross-
Complainant’s lien and encumbrance, together with interest thereon, as alleged herein;
4. For judicial foreclosure of Cross-Complainant’s equitable lien, as alleged herein;
5! For costs of suit incurred herein including reasonable attorneys’ fees as permitted
by law; and
6. For other relief as the Court may deem just.
Dated: May 3, 2019 STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
By:
Jett . Lowenthal
Cody T. Stroman Attorneys for Defendant and
Cross-Complainant
Quicken Loans Inc.
7
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967.1 - F.STEVENSON
1709690. - F.STEVENSONCo we YW A WH FF WN
10
VERIFICATION
1 (QVGNNAN 20N declare:
I amy fn i not nee Quicken Loans Inc., defendant and cross-complainant in the above-
entitled action. I have read the foregoing QUICKEN LOANS INC.’S, SUED AS DOE 1
VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN and know
the contents thereof. 1 am informed and believe that the same is true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, Executed on May 3, 2019 at_ Detvoi4 , Michigan.
\) /
{
l i
No”
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[NAME] “gavannah Ron\,
Loss Mitigation Officer )
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF,
EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN
1704967,| - STEVENSONEXHIBIT 13301 (0108) ORDERNO: 42508887
‘Short Form Commitment PILE NO! 6703059
‘Super Eagle on Demand LBNDBR REF; 000687642322
. .
Exhibit "A"
The land referred to in this policy is situated in the State of CA, County of Santa Clara, and
described as follows;
A PARCEL OF LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SANTA
CLARA, WITH A STREET LOCATION ADDRESS OF 1630 WYNDHAM DR; SAN JOSE,
CA 95124-4748 CURRENTLY OWNED BY MARK D STEVENSON AND KIMBERLY A
STEVENSON HAVING A TAX IDENTIFICATION NUMBER OF 447-38-001 AND BEING
THE SAME PROPERTY MORE FULLY DESCRIBED IN BOOK/PAGE OR DOCUMENT
NUMBER 14220864 AND FURTHER DESCRIBED AS TRACT 8457 LOT 1.
APN: 447-38-001
uae STEVENSON
42780952 ‘
FIRST AMERICAN ELS
DEED OF TRUST
ANGE OFANPROOF OF SERVICE (1013a(3) C.C.P.)
Harry Yauger, Jr., and Vicki Yauger v. Mark D. Stevenson; et al.
County of Santa Clara Superior Court Case No. 18CV334738
I declare that I am over the age of eighteen years and that I am not a party to this action.
I am an employee of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, and my business
address is 235 Pine Street, 15th Floor, San Francisco, CA 94104.
On the date set forth below, I served the following document(s):
QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE,
DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF
EQUITABLE LIEN
& by sending the true copies thereof as designated below;
by placing O the original & a true copy thereof enclosed in sealed envelopes addressed
as follows:
Charles W. Wagner David B. Draper
871 Whitehorne Drive James A. McDaniel
San Jose, CA 95128 Terra Law LLP
Telephone: (408) 244-6222 50 W. San Fernando Street, Suite 1315
Fax: (408) 247-7081 San Jose, CA 95113
Email: charleswwagner@sbcglobal.net Telephone: (408) 299-1200
[Attorney for Plaintiffs Harry Yauger, Jr., [Attorneys for Defendant Mark D.
and Vicki Yauger] Stevenson]
Travis H. Whitfield
2055 Junction Avenue, Suite 138
San Jose, CA 95131
Telephone: (408) 879-9039
[Attorney for Defendant Kimberly A.
Stevenson]
Oo BY ELECTRONIC TRANSMISSION. | caused a true and correct copy of the
aforementioned document to be transmitted to each of the parties at the electronic
notification address last given by said party on any document which he or she has filed
in this action and served upon this office.
O BY ELECTRONIC TRANSMISSION. Per the Court’s “Electronic Filing and
Service Standing Order”, I caused the documents to be sent to the persons at the email
addresses listed with the Court in this matter.
O BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED. | am readily familiar
with the practice for collection and processing of correspondence for mailing with the
USS. Postal Service, to wit, that correspondence will be deposited with the U.S. Postal
Service this same day in the ordinary course of business. I sealed said envelope and
placed it for collection and mailing following ordinary business practices.
1
PROOF OF SERVICE
1696811. - F STEVENSONBY MAIL. I am readily familiar with my firm's practice for collection and processing
of correspondence for mailing with the U.S. Postal Service, to wit, that correspondence
will be deposited with the U.S. Postal Service this same day in the ordinary course of
business. I sealed said envelope and placed it for collection and mailing following
ordinary business practices.
BY HAND DELIVERY. | caused such envelope to be delivered by hand to the offices
of the addressee following ordinary business practices.
BY FACSIMILE. I caused such document to be delivered by facsimile transmission,
pursuant to Rule 2008, to the number indicated after the address(es) noted on the
facsimile cover sheet. The telephone number of the sending facsimile machine is
415/421-2234.
BY FED EX. | caused such document to be delivered by overnight mail to the offices
of the addressees by placing it for collection by Federal Express following ordinary
business practices by my firm, to wit, that packages will either be picked up from my
firm by Federal Express and/or delivered by my firm to the Federal Express Office.
(STATE) | declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
(FEDERAL) | declare under the laws of the United States of America that I am
employed in the office of a member of the Bar of this court at whose direction the
service was made and that the foregoing is true and correct.
Executed on May 3, 2019, at San Francisco, California.
PUD
2
PROOF OF SERVICE
169681 1.1 - F STEVENSON
Preview
Jeffrey H. Lowenthal (State Bar No. 111763) Cody T. Stroman (State Bar No. 303413) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, California 94111 Telephone: (415) 421-3400 Facsimile: (415) 421-2234 E-mail: jlowenthal@steyerlaw.com cstroman@steyerlaw.com Attorneys for Cross-Complainant Quicken Loans Inc., sued as Doe 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA HARRY YAUGER, JR., AND VICKI YAUGER, Plaintiffs, Vv. MARK D. STEVENSON; KIMBERLY A. STEVENSON; ALLY BANK, a Utah chartered bank; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation; EXECUTIVE TRUSTEE SERVICES, INC.,; all persons unknown, claiming any legal or equitable right, title or interest in the property described in the complaint adverse to Plaintiffs’ title, or any cloud upon Plaintiffs’ title thereto; and DOES 1- 30, inclusive, Defendants. QUICKEN LOANS INC., Cross-Complainant, v. HARRY YAUGER, JR.; VICKI YAUGER; MARK D. STEVENSON; KIMBERLY A. STEVENSON; USAA FEDERAL SAVINGS BANK; and ROES Case No. 18CV334738 QUICKEN LOANS INC.’S VERIFIED CROSS- COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN Action Filed: | September 11, 2018 Trial Date: Not Assigned QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1709690.1 - F.STEVENSON1 through 50, inclusive, Cross-Defendants. Cross-Complainant Quicken Loans Inc. (“Cross-Complainant”) alleges as follows: GENERAL ALLEGATIONS 1. The property that is the subject of this action is commonly known as 1630 Wyndham Drive, San Jose, California 95124 and legally described in Exhibit 1 attached hereto and incorporated herein by reference (the “Property”). 2 Cross-Complainant is the current beneficiary under a Deed of Trust originally in favor of Ally Bank, and its successors and assigns, as beneficiary, in the principal amount of $417,000, recorded in the Official Records of Santa Clara County on October 26, 2010 as Document No. 20928391 (“Ally Deed of Trust”). The Ally Deed of Trust was given to secure repayment of a loan in the principal amount of $417,000 (“Ally Loan”). Cross-Complainant is a bona fide encumbrancer for value, and the Ally Deed of Trust is a valid and enforceable lien against the Property. at Cross-Complainant is informed and believes that GMAC Mortgage Corporation DBA ditech.com (“GMAC”) was the beneficiary of a deed of trust in the principal amount of $322,700 recorded in the Official Records of Santa Clara County on September 30, 2003 as Document No. 17386363 (“GMAC Deed of Trust”). Plaintiff is informed and believes that the obligation secured by the GMAC Deed of Trust was paid and fully satisfied by the Ally Loan proceeds, that the loan was closed and that the lien of the GMAC Deed of Trust was extinguished on or about November 5, 2010. 4. Cross-Complainant is informed and believes that GMAC was also the beneficiary of a deed of trust securing a home equity line of credit in the principal amount of $90,000 recorded in the Official Records of Santa Clara County on September 30, 2003 as Document No. 17386364 (“GMAC HELOC’”). Plaintiff is informed and believes that the obligation secured by the GMAC HELOC was paid and fully satisfied by the Ally Loan proceeds, that the loan was 2 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967.) - F.STEVENSON 1709690, - F. STEVENSONoe NY DW BBW NY RN NY N YN NN NYO wee Be ewe we me Be Be BS ec NADA BF Bw YN = SOD we AN DH PB WY & closed and that the lien of the GMAC HELOC was extinguished on or about January 3, 2011. St Cross-Complainant is informed and believes that cross-defendant USAA Federal Savings Bank (“USAA”) is the current beneficiary under a Deed of Trust in the principal amount of $100,000, recorded in the Official Records of Santa Clara County on April 16, 2012 as Document No. 21624822 (“USAA Deed of Trust”). 6. Cross-Complainant is informed and believes that cross-defendants Harry Yauger, Jr., Vicki Yauger, Mark D. Stevenson and Kimberly A. Stevenson (collectively, “Borrower Cross-Defendants”) are individuals claiming some right, title or interest in the Property. Borrower Cross-Defendants were the borrowers and trustors under the GMAC Deed of Trust and GMAC HELOC. 7. Cross-Complainant is not aware of the true names and capacities of those cross- defendants named herein as Roes 1 through 50, inclusive, and therefore sues those cross- defendants by such fictitious names. Cross-Complainant is informed and believes that the fictitiously named cross-defendants 1 through 50, and each of them, either claim some right, title, estate, lien or interest in the Property adverse to the claims of Cross-Complainant, which constitute a cloud on Cross-Complainant’s title, estate and/or lien or said cross-defendants are legally responsible for the matters herein alleged. Cross-Complainant shall seek leave of court to amend this cross-complaint to include the true names and capacities of such fictitious cross- defendants when the same are ascertained. 8. Cross-Complainant is informed and believes that the cross-defendants and Roes | through 50, inclusive, and each of them, at all times herein mentioned, acted as the agents, servants, employees, legal representatives and/or co-conspirators of the cross-defendants, and each of them, and that all of such cross-defendants acted in concert and participated and furthered the wrongs herein set forth, and with the knowledge, permission, consent, notification, and adoption of the cross-defendants, and each of them. 3 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967. - F.STEVENSON 1709690,1 - F.STEVENSONoOo Oo IN DH HW BF WN 10 FIRST CAUSE OF ACTION (Quiet Title Against All Cross-Defendants) oh Cross-Complainant refers to and incorporates herein by reference paragraphs | through 8, above. 10. Cross-Complainant is entitled to a judgment quieting title to the Ally Deed of Trust as a first priority lien against all or some of the Property as of October 26, 2010. Cross- Complainant is informed and believes that cross-defendants’ right, title, estate, lien or interest in the Property, if any, is subject to the Ally Deed of Trust. 11. Cross-Complainant does not intend to waive its lien or violate the one action rule set forth in Code of Civil Procedure Section 726 by seeking the relief herein, and Cross- Complainant does not intend to waive its right to exercise the power of sale contained in the Ally Deed of Trust or in its equitable lien as hereinafter alleged to non-judicially foreclose against the Property. SECOND CAUSE OF ACTION (Declaratory Relief: Validity of Deed of Trust Against All Cross-Defendants) 12. Cross-Complainant refers to and incorporates herein by reference Paragraphs 1 through 11, above. 13. An actual controversy has arisen and now exists, as follows: (a) Cross-Complainant contends that the Ally Deed of Trust is a valid, existing and enforceable first lien against all or some of the Property securing the obligations contained within the promissory note, and Cross-Complainant is a bona fide encumbrancer with respect to said lien; and (b) Cross-Complainant is informed and believes that cross-defendants dispute Cross-Complainant’s contentions and contend that the Ally Deed of Trust is not a valid and enforceable lien and existing encumbrance against all or some of the Property. 14. Cross-Complainant desires a judicial determination of the respective rights and duties of the parties with respect to the Ally Deed of Trust. In particular, Cross-Complainant 4 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967.1 - F STEVENSON 1709690.1 - STEVENSONdesires a declaration that the Ally Deed of Trust is a valid and enforceable first lien and existing encumbrance against all or some of the Property. 15. Such a declaration is necessary and appropriate at this time in order that Cross- Complainant may ascertain its rights and duties with respect to the cross-defendants’ claims. Furthermore, Cross-Complainant’s claims arise out of the same transaction, and determination of both in one proceeding is necessary and appropriate in order to avoid the circuitry and multiplicity of actions that would result if Cross-Complainant was forced to bring a separate action against cross-defendants. THIRD CAUSE OF ACTION (Equitable Subrogation Against All Cross-Defendants) 16. Cross-Complainant refers to and incorporates herein by reference Paragraphs 1 through 15, above. 17. Cross-Complainant does not intend to waive its lien or to violate the one action tule set forth in Code of Civil Procedure Section 726 by seeking the alternative relief herein. However, Cross-Complainant is informed and believes that if it is determined that Cross- Complainant is not the holder of an enforceable first priority lien against all or some of the Property under the Ally Deed of Trust, which Cross-Complainant denies, Cross-Complainant will have no adequate remedy at law. Unless this Court grants the relief herein requested, Cross- Complainant will be irreparably injured, and cross-defendants will be unjustly enriched. 18. Cross-Complainant is informed and believes that the Ally Loan proceeds were used to pay off in full prior obligations against the Property in an amount not less than $374,365.42 including, without limitation, the GMAC Deed of Trust, GMAC HELOC and real property taxes. Cross-Complainant is informed and believes that the Ally Loan proceeds caused said obligations to be satisfied in full, that Cross-Complainant was not primarily liable for those obligations, Cross-Complainant paid off those obligations to protect its security interest as a lender against the Subject Property, and Cross-Complainant did not pay those obligations as a volunteer. If the Ally Deed of Trust is found not to be an enforceable first priority lien against the 5 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967. - F.STEVENSON 1709690. 1 - F. STEVENSONoD wm ND HM BP WwW NY Property, in whole or in part, for any reason, which Cross-Complainant denies, Cross- Complainant may have no adequate remedy at law, and unless this Court grants the relief hereinafter prayed, it will be irreparably injured and cross-defendants will be unjustly enriched. 19. In the event the Ally Deed of Trust is found not to be an enforceable first priority lien against the Property as alleged herein, Cross-Complainant is entitled to a judgment enforcing its right to be equitably subrogated to all liens, encumbrances, and obligations secured against the Property which were paid off in full by the Ally Loan proceeds secured by the Ally Deed of Trust, and the imposition of an equitable lien in an amount according to proof, and not less than $374,365.42, together with interest, until paid. 20. Cross-Complainant is informed and believes that a judgment enforcing its subrogation rights as alleged herein would not work any injustice to the rights of cross-defendants because at the time the above-described liens, encumbrances, and obligations were paid, any right, title, estate, lien or interest held by cross-defendants in the Property was subordinate to said liens, encumbrances, and obligations, and cross-defendants were aware of the existence of said liens, encumbrances, and obligations. 21. Asa proximate result of the foregoing and only in the event the Ally Deed of Trust is found not to be an enforceable first priority lien against the Property, in whole or part, for any reason, which Cross-Complainant denies, Cross-Complainant seeks an equitable lien against the Subject Property with the terms including the power of sale and in an amount equal to the payments which caused the above-described liens, encumbrances, and obligations to be fully satisfied and released, together with interest, until paid. FOURTH CAUSE OF ACTION (Judicial Foreclosure of and/or Equitable Lien Against the Property) 22. Cross-Complainant refers to and incorporates herein by reference paragraphs 1 through 21 of this Cross-Complaint. 23. In the event that it is determined that the Ally Deed of Trust is not an enforceable first priority lien and existing encumbrance against the whole of the Property, which Cross- 6 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967. - F.STEVENSON 17096901 - F.STEVENSONCD em ND HW PB WN NY NN YN NN KY NY Hee we Be Be Be we we ee eo NY AnH BF Bw NH = SOD we IRDA BF WH Complainant denies, Cross-Complainant seeks an order for judicial foreclosure of Cross- Complainant’s equitable lien against cross-defendants’ interest in the whole of the Property. 24, Cross-Complainant does not intend to violate the one action rule set forth in Code of Civil Procedure Section 726 by seeking the relief herein and Cross-Complainant does not intend to waive its right to exercise the powers of sale contained in the Ally Deed of Trust or in its equitable lien to non-judicially foreclose against the Property. WHEREFORE Cross-Complainant prays for judgment as follows: 1. To quiet title by declaring that Cross-Complainant has a valid first priority lien encumbering some or all of the Property, as alleged herein; 2. For a declaratory judgment that Cross-Complainant has a valid first priority lien encumbering some or all of the Property, as alleged herein; 3! For equitable subrogation and imposition of an equitable lien against the Property in an amount equal to the amount paid to satisfy liens and encumbrances senior to Cross- Complainant’s lien and encumbrance, together with interest thereon, as alleged herein; 4. For judicial foreclosure of Cross-Complainant’s equitable lien, as alleged herein; 5! For costs of suit incurred herein including reasonable attorneys’ fees as permitted by law; and 6. For other relief as the Court may deem just. Dated: May 3, 2019 STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP By: Jett . Lowenthal Cody T. Stroman Attorneys for Defendant and Cross-Complainant Quicken Loans Inc. 7 QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967.1 - F.STEVENSON 1709690. - F.STEVENSONCo we YW A WH FF WN 10 VERIFICATION 1 (QVGNNAN 20N declare: I amy fn i not nee Quicken Loans Inc., defendant and cross-complainant in the above- entitled action. I have read the foregoing QUICKEN LOANS INC.’S, SUED AS DOE 1 VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN and know the contents thereof. 1 am informed and believe that the same is true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on May 3, 2019 at_ Detvoi4 , Michigan. \) / { l i No” = [NAME] “gavannah Ron\, Loss Mitigation Officer ) QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN 1704967,| - STEVENSONEXHIBIT 13301 (0108) ORDERNO: 42508887 ‘Short Form Commitment PILE NO! 6703059 ‘Super Eagle on Demand LBNDBR REF; 000687642322 . . Exhibit "A" The land referred to in this policy is situated in the State of CA, County of Santa Clara, and described as follows; A PARCEL OF LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA, WITH A STREET LOCATION ADDRESS OF 1630 WYNDHAM DR; SAN JOSE, CA 95124-4748 CURRENTLY OWNED BY MARK D STEVENSON AND KIMBERLY A STEVENSON HAVING A TAX IDENTIFICATION NUMBER OF 447-38-001 AND BEING THE SAME PROPERTY MORE FULLY DESCRIBED IN BOOK/PAGE OR DOCUMENT NUMBER 14220864 AND FURTHER DESCRIBED AS TRACT 8457 LOT 1. APN: 447-38-001 uae STEVENSON 42780952 ‘ FIRST AMERICAN ELS DEED OF TRUST ANGE OFANPROOF OF SERVICE (1013a(3) C.C.P.) Harry Yauger, Jr., and Vicki Yauger v. Mark D. Stevenson; et al. County of Santa Clara Superior Court Case No. 18CV334738 I declare that I am over the age of eighteen years and that I am not a party to this action. I am an employee of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, and my business address is 235 Pine Street, 15th Floor, San Francisco, CA 94104. On the date set forth below, I served the following document(s): QUICKEN LOANS INC.’S VERIFIED CROSS-COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, EQUITABLE SUBROGATION AND FORECLOSURE OF EQUITABLE LIEN & by sending the true copies thereof as designated below; by placing O the original & a true copy thereof enclosed in sealed envelopes addressed as follows: Charles W. Wagner David B. Draper 871 Whitehorne Drive James A. McDaniel San Jose, CA 95128 Terra Law LLP Telephone: (408) 244-6222 50 W. San Fernando Street, Suite 1315 Fax: (408) 247-7081 San Jose, CA 95113 Email: charleswwagner@sbcglobal.net Telephone: (408) 299-1200 [Attorney for Plaintiffs Harry Yauger, Jr., [Attorneys for Defendant Mark D. and Vicki Yauger] Stevenson] Travis H. Whitfield 2055 Junction Avenue, Suite 138 San Jose, CA 95131 Telephone: (408) 879-9039 [Attorney for Defendant Kimberly A. Stevenson] Oo BY ELECTRONIC TRANSMISSION. | caused a true and correct copy of the aforementioned document to be transmitted to each of the parties at the electronic notification address last given by said party on any document which he or she has filed in this action and served upon this office. O BY ELECTRONIC TRANSMISSION. Per the Court’s “Electronic Filing and Service Standing Order”, I caused the documents to be sent to the persons at the email addresses listed with the Court in this matter. O BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED. | am readily familiar with the practice for collection and processing of correspondence for mailing with the USS. Postal Service, to wit, that correspondence will be deposited with the U.S. Postal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing following ordinary business practices. 1 PROOF OF SERVICE 1696811. - F STEVENSONBY MAIL. I am readily familiar with my firm's practice for collection and processing of correspondence for mailing with the U.S. Postal Service, to wit, that correspondence will be deposited with the U.S. Postal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing following ordinary business practices. BY HAND DELIVERY. | caused such envelope to be delivered by hand to the offices of the addressee following ordinary business practices. BY FACSIMILE. I caused such document to be delivered by facsimile transmission, pursuant to Rule 2008, to the number indicated after the address(es) noted on the facsimile cover sheet. The telephone number of the sending facsimile machine is 415/421-2234. BY FED EX. | caused such document to be delivered by overnight mail to the offices of the addressees by placing it for collection by Federal Express following ordinary business practices by my firm, to wit, that packages will either be picked up from my firm by Federal Express and/or delivered by my firm to the Federal Express Office. (STATE) | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (FEDERAL) | declare under the laws of the United States of America that I am employed in the office of a member of the Bar of this court at whose direction the service was made and that the foregoing is true and correct. Executed on May 3, 2019, at San Francisco, California. PUD 2 PROOF OF SERVICE 169681 1.1 - F STEVENSON