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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-11-2012 3:46 pm
Case Number: CGC-12-522638
Filing Date: Oct-11-2012 3:46
Filed by: RONNIE OTERO
Juke Box: 001 Image: 03799395
OPPOSITION
RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al
001003799395
Instructions:
Please place this sheet on top of the document to be scanned.
ottBRYAN CAVE LLP
333 MARKET STREET, 25™ FLOOR
FAXED
SAN FRANCISCO, CA 94105
BRYAN CAVE LLP
C. Scott Greene, Calif. Bar No. 277445
Andrea M. Hicks, Calif. Bar No. 219836
Jessica T. Ehsanian, Calif. Bar No. 231541
333 Market Street, 25" Floor
San Francisco, CA 94105
Telephone: (415) 675-3400
Facsimile: (415) 675-3434
E-mail: andrea. hicks@bryancave.com
ehsanianj@bryancave.com
Attorneys for Defendants
BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL
ASSOCIATION”), and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S
WHOLESALE LENDER
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
RODOLFO VELASQUEZ, Case No.: CGC-12-522638
Plaintiff, DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION FOR
v. RECONSIDERATION OR TO
VACATE THE COURT’S ORDER RE
BANK OF AMERICA NATIONAL AMOUNT OF BOND
ASSOCIATION; AMERICA’S
WHOLESALE LENDER; COUNTRY WIDE Date: October 25, 2012
HOME LOANS, INC.; and DOES 1 through Time: 9:30 a.m.
100, inclusive, Dept.: 501
Defendants.
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP.
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105
eo o
Defendants Bank of America, N.A. (“Bank of America”) and Countrywide Home Loans,
Inc., (“Countrywide”) dba America’s Whotesale Lender (“AWL”) (collectively “Defendants”)
hereby submit the following opposition to Plaintiff Rodolfo Velasquez’s (“Plaintiff”) Motion for
Reconsideration or to Vacate the Court’s Order re: Amount of Bond.
IL INTRODUCTION
On September 6, 2012, the Court signed an Order granting Plaintiffs request for a
preliminary injunction and in doing so, granted Defendants’ request for Plaintiff to post a bond.
Following both parties’ opportunity to present evidence and argument regarding the bond amount,
the Court required Plaintiff to furnish Defendants a security bond in the amount of $17,868 on or
before September 28, 2012, in order to proceed with litigation. Rather than comply with the terms
of this Order, Plaintiff filed a groundless and procedurally improper Motion for Reconsideration
of the bond amount. Plaintiffs Motion for Reconsideration is nothing more than an improper
delay tactic, and must be denied for three reasons, any one of which is alone sufficient to deny the
motion.
1. Plaintiff's motion is procedurally improper because he did not “state by
affidavit what application was made before, when and to what judge, what order or
decisions were made, and what new or different facts, circumstances, or law are claimed to
be shown.” CCP § 1008(a).
2. Plaintiff does not, and cannot, present any “new or different facts,
circumstances, or law” as required by California Code of Civil Procedure § 1008(a) to
bring a motion for reconsideration.
3. The bond previously imposed by the Court is appropriate as it has been
established by the recorded default amount of Plaintiff's mortgage loan.
To seek reconsideration. a party must show new or different facts. circumstances, or law.
Plaintiff does not meet this standard. Instead of introducing any new facts, Plaintiff simply repeats|
the allegations made in his Complaint, under the guise of newly discovered evidence. The “new
evidence” is irrelevant to the Court’s ruling of the undertaking amount and the allegations were
already considered by the Court at the preliminary injunction hearing. This court should deny
1
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105,
o @
Plaintiff's motion for reconsideration of the undertaking amount.
Il. FACTUAL BACKGROUND
In February 1999, Plaintiff obtained a loan for $150,000 from America’s Wholesale
Lender, dba Countrywide Home Loans, Inc. to purchase a home located in San Francisco, CA.
(Compl. § 1.) Plaintiff's loan was transferred from Countrywide to Bank of America, N.A., and
following Plaintiff's failure to timely pay his property taxes, Bank of America imposed an escrow
impound on Plaintiffs mortgage loan, thereby increasing his monthly payment by approximately
$100 per month. Unwilling to pay the increased monthly payment amount as required under the
terms of the Deed of Trust, Plaintiff admits not making a full payment since December of 2010.
(See Compl. 4 10.) In April 2012, Defendants recorded a Notice of Default which indicated that
as of April 24, 2012, Plaintiff was $21,610.92 in default. (See Ehsanian Decl., Exh. A.)
Plaintiff was granted his request for preliminary injunction following a hearing on
September 6, 2012. At the hearing, Defendants requested Plaintiff be required to post a bond and
the Court heard argument as to the bond amount. Defendants requested bond be required equaling
the amount of the April 24, 2012, Notice of Default, ie., more than $21,600. In opposition,
Plaintiff's counsel argued that only a “nominal” bond should be required, suggesting to the Court
a $1 bond would be appropriate under the circumstances. No justification was given by counsel
for Plaintiff for this amount. The Court took the arguments and supporting evidence as to the
amount of the bond under submission, and later signed an Order that Plaintiff pay a $17,868 bond
before September 28, 2012, in granting Plaintiff's Request for Preliminary Injunction. (See Sept.
6 Order, Plaintiff’s Exh. 2.)
Plaintiff has admittedly not made a payment on the property since December 2010, a total
of 23 months. (Compl. § 10.) This indicates that Plaintiff should have a “savings” of at least
$22,000 accrued over the last two years, which he could now use to cover the undertaking
requirement. Plaintiffs motion fails to demonstrate new or different facts, circumstances, or law.
Therefore, the Motion for Reconsideration should be denied.
Ill. LEGAL STANDARD
California Code of Civil Procedure section 1008(a) requires a motion for reconsideration
2
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105
o o
to be based on “new or different facts, circumstances, or law.” The statute requires the party
seeking reconsideration to show that the new or different “information . . . could not, with
reasonable diligence, have [been] discovered.” N.Y. Times Co. v. Superior Court (2005) 135 Cal.
App. 4th 206, 213; see also Baldwin vy. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1198
(“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory
explanation for the failure to produce that evidence at an earlier time. In short, the moving party's
burden is the same as that of a party seeking new trial on the ground of newly discovered
evidence, material for the party making the application, which he could not, with reasonable
diligence, have discovered and produced at the trial.” (emphasis in the original) (internal
quotations and citation omitted)).
The requirements of C.C.P. Section 1008 are jurisdictional. The court may not entertain a
motion for reconsideration unless it meets the requirements of the statute. See Kerns v. CSE Ins.
Grp. (2003) 106 Cal. App. 4th 368, 391 (holding that a court is “jurisdictionally barred” from
deciding a motion under California Code of Civil Procedure section 1008 if the information
presented as the basis for the motion is not new); Baldwin, supra, 59 Cal. App. 4th at 1200 (stating
that “a trial court has no jurisdiction to reconsider a prior order on the basis of ‘different facts’ in
the absence of a satisfactory explanation for the failure to present them earlier”).
IV. ARGUMENT
Plaintiff's Motion for Reconsideration requests that the court reconsider the bond required
to maintain the preliminary injunction granted, which prevents Defendants from conducting a
foreclosure sale on Plaintiff's property. Plaintiff continues with his specious argument that AWL
is not a legal entity and thus the Deed of Trust is void, and that this somehow constitutes new
evidence that warrants a lesser undertaking.
Plaintiff's motion should be denied for three reasons. First, the Court lacks jurisdiction to
consider the motion. Second, Plaintiff fails to meet his burden of identifying any newly-
discovered facts, circumstances or law. Third, requiring Plaintiff to cover the outstanding default
amount of his mortgage loan is an appropriate bond.
3
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105
A. Plaintiff's Motion is Procedurally Improper
This Court lacks jurisdiction to consider Plaintiffs motion to reconsider because his
motion is procedurally improper as it does not comply with California Code of Civil Procedure §
1008.
An application to reconsider made pursuant to Section 1008 must include an affidavit
setting forth “what application was made before, when and to what judge, what order or decisions
were made, and what new or different facts, circumstances, or law are claimed to be shown.” Cal.
Code Civ. Proc. § 1008(a). The declaration of Plaintiff's counsel Russell Davis was included with
the Motion. However, this declaration is materially deficient. The declaration fails to set forth the
information required by Section 1008(a). Specifically, the declaration does not identify
sufficiently new or different facts, circumstances, or law to justify reconsideration of the Court’s
prior ruling.
B. Plaintiff Does Not Meet His Burden in Seeking Reconsideration as He Fails to
Introduce New or Different Facts
Motions for reconsideration are restricted to circumstances where a party offers the court
some new fact, circumstance or law not previously considered, and some valid reason for not
offering it earlier. Gilberd y. AC Transit, 32 Cal. App. 4th 1494, 1500 (1995); see also California
Code of Civil Procedure § 1008(a). Plaintiff fails to satisfy any of the criteria for earning
reconsideration. Plaintiff's entire motion for reconsideration is based on a purported theory that
the Deed of Trust is void because AWL is a service mark and not a legal entity.
Specifically, Plaintiff's purported “newly discovered evidence” in support of this motion is
a screen shot from the website of the United States Patent and Trademark Office (“USPTO”)
which shows that AWL is a service mark of Countrywide. From this, Plaintiff concludes that
AWL is not a legal entity. Plaintiff claims this “evidence” is proof that AWL has no right to
foreclose on the property and thus provides a basis for this Court to reconsider its prior ruling.
(See Opp. 3:2-10.) However, Plaintiff already alleged that AWL is not a legal entity in his
Complaint. (See Compl. §§ 15-17, 25.) Moreover, the notion that Plaintiff is somehow unaware
of the fact that AWL is a dba of Countrywide Home Loans, Inc. and capable of entering into
4
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP.
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94405
wn
om IN a
o oe
contracts with Plaintiff is disingenuous at best. The legal status of AWL has been available to
Plaintiff since origination of his loan in 1999. “America’s Wholesale Lender” was a fictitious
business name of Countrywide Home Loans, Inc. Plaintiff's loan originated in San Mateo County
and the loan documents signed by Plaintiff indicate a mailing address for AWL in Calabasas, Los
Angeles County. (See Ehsanian Decl. Exhibits B and C.) Attached to the Declaration of Jessica
T. Ehsanian filed concurrently with this opposition are dba certificates in San Mateo and Los
Angeles Counties establishing AWL is in fact a dba of Countrywide. Moreover, as further proof
of AWL’s status as a dba of Countrywide in 1999 is an endorsed copy of the Promissory Note
signed by Plaintiff which requests payments be made to “Countrywide Home Loans, Inc., doing
business under the fictitious business name of America’s Wholesale Lender, a New York
Corporation.” (See Ehsanian Decl. Exhibit D.) There is no newly-discovered evidence here.
Plaintiff does not identify any new facts that were not already considered by this Court or
already alleged in the Complaint. Moreover, Plaintiff fails to make any showing as to why this
“newly discovered evidence” requires a different result in the bond amount imposed. Plaintiff
cannot make such a showing because he fails to identify any new facts, circumstances, or law. See
Cal. Code of Civ. Proc., § 1008 (a).
Nothing in Plaintiffs motion provides an adequate basis for the Court to reconsider any
aspect of the preliminary injunction Order and his motion should be denied.
Cc The $17,868 Bond Amount Is Appropriate
Plaintiff argues that the current undertaking requirement is “manifestly unjust”. (See
Motion 3:12-13.) However, it is Defendants that have been damaged in the amount of Plaintiff's
indebtedness. As was presented at the argument for Plaintiff's motion for preliminary injunction,
Defendants established to the Court grounds for the requested bond amount by presenting the
latest Notice of Default. showing Plaintiff in default of more than $20,000 — which is a significant
loss that is owed Defendants. Furthermore, the injunction prevents Defendants from recouping
that loss through the sale of the property. Plaintiff has already been living on the property without
making any effort to cure the current default on his mortgage and is not making any mortgage
payments. It is manifestly unjust to allow Plaintiff to continue to live in the property without
5
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP.
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105,
on DAW
paying his indebtedness.
Each month Plaintiff remains in the property, Defendants are damaged in the amount of the
monthly mortgage payment and the default amount continues to accrue. Although the Court has
discretion to determine the appropriate bond amount, this Court has already done so. Therefore,
Plaintiffs motion to reconsider should be denied.
Vv. CONCLUSION
Plaintiff's Motion for Reconsideration should be denied as Plaintiff fails to provide any
basis for reconsidering the bond amount previously set by this Court.
Dated: October 11, 2012
BRYAN CAVE LLP
\ cannan SSA
By: >
Jessiva T. Ehsanian
Attorneys for Defendants
BANK OF AMERICA, N.A. (erroneously sued
as “BANK OF AMERICA NATIONAL
ASSOCIATION”) and COUNTRY WIDE HOME
LOANS, INC., dba AMERICA’S WHOLESALE
LENDER
6
DEFENDANTS?’ OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATIONBRYAN Cave LLP
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105
CERTIFICATE OF SERVICE
Tam employed in the aforesaid County, State of California; I am over the age of eighteen
years and not a party to the within entitled action; my business address is: 333 Market Street, 25"
Floor, San Francisco, California 94105 and my email address is novakr@bryancave.com.
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR
RECONSIDERATION OR TO VACATE THE COURT’S ORDER RE AMOUNT OF
BOND; and
DECLARATION OF JESSICA T. EHSANIAN IN SUPPORT OF DEFENDANTS’
MOTION FOR RECONSIDERATION OR TO VACATE THE COURT’S ORDER RE
AMOUNT OF BOND
On the interested parties in this action by placing a true copy thereof on October 11,
2012, enclosed in a sealed envelope, addressed as follows:
Law Offices of Russell Davis Attorney for Plaintiff
Russell Davis
29 Lakewood Avenue
San Francisco CA 94019
Tel: 415.409.5627
Fax: 415.520.2666
[] BY MAIL: I caused such envelope to be deposited in the mail at San Francisco,
California. The envelope was mailed with postage thereon fully prepaid. As follows: I
am "readily familiar" with the firm's practice of collection and processing correspondence
for mailing. Under that practice, it would be deposited with U.S. postal service on that
same day with postage thereon fully prepaid at San Francisco, California in the ordinary
course of business. [ am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
{X] (BY OVERNIGHT DELIVERY) Depositing the above document(s) in a box or other facility
regularly maintained by FedEx in an envelope or package designated by FedEx with delivery fees
paid or provided for.
I declare that I am employed within the office of a member of the bar of this Court at whose
direction the service was made.
Executed on October 11, 2012. at San Francisco, California.
SF0IDOCS\99866.1
PROOF OF SERVICE
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-11-2012 3:46 pm Case Number: CGC-12-522638 Filing Date: Oct-11-2012 3:46 Filed by: RONNIE OTERO Juke Box: 001 Image: 03799395 OPPOSITION RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al 001003799395 Instructions: Please place this sheet on top of the document to be scanned. ottBRYAN CAVE LLP 333 MARKET STREET, 25™ FLOOR FAXED SAN FRANCISCO, CA 94105 BRYAN CAVE LLP C. Scott Greene, Calif. Bar No. 277445 Andrea M. Hicks, Calif. Bar No. 219836 Jessica T. Ehsanian, Calif. Bar No. 231541 333 Market Street, 25" Floor San Francisco, CA 94105 Telephone: (415) 675-3400 Facsimile: (415) 675-3434 E-mail: andrea. hicks@bryancave.com ehsanianj@bryancave.com Attorneys for Defendants BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL ASSOCIATION”), and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S WHOLESALE LENDER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO RODOLFO VELASQUEZ, Case No.: CGC-12-522638 Plaintiff, DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR v. RECONSIDERATION OR TO VACATE THE COURT’S ORDER RE BANK OF AMERICA NATIONAL AMOUNT OF BOND ASSOCIATION; AMERICA’S WHOLESALE LENDER; COUNTRY WIDE Date: October 25, 2012 HOME LOANS, INC.; and DOES 1 through Time: 9:30 a.m. 100, inclusive, Dept.: 501 Defendants. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP. 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94105 eo o Defendants Bank of America, N.A. (“Bank of America”) and Countrywide Home Loans, Inc., (“Countrywide”) dba America’s Whotesale Lender (“AWL”) (collectively “Defendants”) hereby submit the following opposition to Plaintiff Rodolfo Velasquez’s (“Plaintiff”) Motion for Reconsideration or to Vacate the Court’s Order re: Amount of Bond. IL INTRODUCTION On September 6, 2012, the Court signed an Order granting Plaintiffs request for a preliminary injunction and in doing so, granted Defendants’ request for Plaintiff to post a bond. Following both parties’ opportunity to present evidence and argument regarding the bond amount, the Court required Plaintiff to furnish Defendants a security bond in the amount of $17,868 on or before September 28, 2012, in order to proceed with litigation. Rather than comply with the terms of this Order, Plaintiff filed a groundless and procedurally improper Motion for Reconsideration of the bond amount. Plaintiffs Motion for Reconsideration is nothing more than an improper delay tactic, and must be denied for three reasons, any one of which is alone sufficient to deny the motion. 1. Plaintiff's motion is procedurally improper because he did not “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” CCP § 1008(a). 2. Plaintiff does not, and cannot, present any “new or different facts, circumstances, or law” as required by California Code of Civil Procedure § 1008(a) to bring a motion for reconsideration. 3. The bond previously imposed by the Court is appropriate as it has been established by the recorded default amount of Plaintiff's mortgage loan. To seek reconsideration. a party must show new or different facts. circumstances, or law. Plaintiff does not meet this standard. Instead of introducing any new facts, Plaintiff simply repeats| the allegations made in his Complaint, under the guise of newly discovered evidence. The “new evidence” is irrelevant to the Court’s ruling of the undertaking amount and the allegations were already considered by the Court at the preliminary injunction hearing. This court should deny 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94105, o @ Plaintiff's motion for reconsideration of the undertaking amount. Il. FACTUAL BACKGROUND In February 1999, Plaintiff obtained a loan for $150,000 from America’s Wholesale Lender, dba Countrywide Home Loans, Inc. to purchase a home located in San Francisco, CA. (Compl. § 1.) Plaintiff's loan was transferred from Countrywide to Bank of America, N.A., and following Plaintiff's failure to timely pay his property taxes, Bank of America imposed an escrow impound on Plaintiffs mortgage loan, thereby increasing his monthly payment by approximately $100 per month. Unwilling to pay the increased monthly payment amount as required under the terms of the Deed of Trust, Plaintiff admits not making a full payment since December of 2010. (See Compl. 4 10.) In April 2012, Defendants recorded a Notice of Default which indicated that as of April 24, 2012, Plaintiff was $21,610.92 in default. (See Ehsanian Decl., Exh. A.) Plaintiff was granted his request for preliminary injunction following a hearing on September 6, 2012. At the hearing, Defendants requested Plaintiff be required to post a bond and the Court heard argument as to the bond amount. Defendants requested bond be required equaling the amount of the April 24, 2012, Notice of Default, ie., more than $21,600. In opposition, Plaintiff's counsel argued that only a “nominal” bond should be required, suggesting to the Court a $1 bond would be appropriate under the circumstances. No justification was given by counsel for Plaintiff for this amount. The Court took the arguments and supporting evidence as to the amount of the bond under submission, and later signed an Order that Plaintiff pay a $17,868 bond before September 28, 2012, in granting Plaintiff's Request for Preliminary Injunction. (See Sept. 6 Order, Plaintiff’s Exh. 2.) Plaintiff has admittedly not made a payment on the property since December 2010, a total of 23 months. (Compl. § 10.) This indicates that Plaintiff should have a “savings” of at least $22,000 accrued over the last two years, which he could now use to cover the undertaking requirement. Plaintiffs motion fails to demonstrate new or different facts, circumstances, or law. Therefore, the Motion for Reconsideration should be denied. Ill. LEGAL STANDARD California Code of Civil Procedure section 1008(a) requires a motion for reconsideration 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94105 o o to be based on “new or different facts, circumstances, or law.” The statute requires the party seeking reconsideration to show that the new or different “information . . . could not, with reasonable diligence, have [been] discovered.” N.Y. Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213; see also Baldwin vy. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1198 (“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. In short, the moving party's burden is the same as that of a party seeking new trial on the ground of newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” (emphasis in the original) (internal quotations and citation omitted)). The requirements of C.C.P. Section 1008 are jurisdictional. The court may not entertain a motion for reconsideration unless it meets the requirements of the statute. See Kerns v. CSE Ins. Grp. (2003) 106 Cal. App. 4th 368, 391 (holding that a court is “jurisdictionally barred” from deciding a motion under California Code of Civil Procedure section 1008 if the information presented as the basis for the motion is not new); Baldwin, supra, 59 Cal. App. 4th at 1200 (stating that “a trial court has no jurisdiction to reconsider a prior order on the basis of ‘different facts’ in the absence of a satisfactory explanation for the failure to present them earlier”). IV. ARGUMENT Plaintiff's Motion for Reconsideration requests that the court reconsider the bond required to maintain the preliminary injunction granted, which prevents Defendants from conducting a foreclosure sale on Plaintiff's property. Plaintiff continues with his specious argument that AWL is not a legal entity and thus the Deed of Trust is void, and that this somehow constitutes new evidence that warrants a lesser undertaking. Plaintiff's motion should be denied for three reasons. First, the Court lacks jurisdiction to consider the motion. Second, Plaintiff fails to meet his burden of identifying any newly- discovered facts, circumstances or law. Third, requiring Plaintiff to cover the outstanding default amount of his mortgage loan is an appropriate bond. 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN Cave LLP 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94105 A. Plaintiff's Motion is Procedurally Improper This Court lacks jurisdiction to consider Plaintiffs motion to reconsider because his motion is procedurally improper as it does not comply with California Code of Civil Procedure § 1008. An application to reconsider made pursuant to Section 1008 must include an affidavit setting forth “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Cal. Code Civ. Proc. § 1008(a). The declaration of Plaintiff's counsel Russell Davis was included with the Motion. However, this declaration is materially deficient. The declaration fails to set forth the information required by Section 1008(a). Specifically, the declaration does not identify sufficiently new or different facts, circumstances, or law to justify reconsideration of the Court’s prior ruling. B. Plaintiff Does Not Meet His Burden in Seeking Reconsideration as He Fails to Introduce New or Different Facts Motions for reconsideration are restricted to circumstances where a party offers the court some new fact, circumstance or law not previously considered, and some valid reason for not offering it earlier. Gilberd y. AC Transit, 32 Cal. App. 4th 1494, 1500 (1995); see also California Code of Civil Procedure § 1008(a). Plaintiff fails to satisfy any of the criteria for earning reconsideration. Plaintiff's entire motion for reconsideration is based on a purported theory that the Deed of Trust is void because AWL is a service mark and not a legal entity. Specifically, Plaintiff's purported “newly discovered evidence” in support of this motion is a screen shot from the website of the United States Patent and Trademark Office (“USPTO”) which shows that AWL is a service mark of Countrywide. From this, Plaintiff concludes that AWL is not a legal entity. Plaintiff claims this “evidence” is proof that AWL has no right to foreclose on the property and thus provides a basis for this Court to reconsider its prior ruling. (See Opp. 3:2-10.) However, Plaintiff already alleged that AWL is not a legal entity in his Complaint. (See Compl. §§ 15-17, 25.) Moreover, the notion that Plaintiff is somehow unaware of the fact that AWL is a dba of Countrywide Home Loans, Inc. and capable of entering into 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP. 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94405 wn om IN a o oe contracts with Plaintiff is disingenuous at best. The legal status of AWL has been available to Plaintiff since origination of his loan in 1999. “America’s Wholesale Lender” was a fictitious business name of Countrywide Home Loans, Inc. Plaintiff's loan originated in San Mateo County and the loan documents signed by Plaintiff indicate a mailing address for AWL in Calabasas, Los Angeles County. (See Ehsanian Decl. Exhibits B and C.) Attached to the Declaration of Jessica T. Ehsanian filed concurrently with this opposition are dba certificates in San Mateo and Los Angeles Counties establishing AWL is in fact a dba of Countrywide. Moreover, as further proof of AWL’s status as a dba of Countrywide in 1999 is an endorsed copy of the Promissory Note signed by Plaintiff which requests payments be made to “Countrywide Home Loans, Inc., doing business under the fictitious business name of America’s Wholesale Lender, a New York Corporation.” (See Ehsanian Decl. Exhibit D.) There is no newly-discovered evidence here. Plaintiff does not identify any new facts that were not already considered by this Court or already alleged in the Complaint. Moreover, Plaintiff fails to make any showing as to why this “newly discovered evidence” requires a different result in the bond amount imposed. Plaintiff cannot make such a showing because he fails to identify any new facts, circumstances, or law. See Cal. Code of Civ. Proc., § 1008 (a). Nothing in Plaintiffs motion provides an adequate basis for the Court to reconsider any aspect of the preliminary injunction Order and his motion should be denied. Cc The $17,868 Bond Amount Is Appropriate Plaintiff argues that the current undertaking requirement is “manifestly unjust”. (See Motion 3:12-13.) However, it is Defendants that have been damaged in the amount of Plaintiff's indebtedness. As was presented at the argument for Plaintiff's motion for preliminary injunction, Defendants established to the Court grounds for the requested bond amount by presenting the latest Notice of Default. showing Plaintiff in default of more than $20,000 — which is a significant loss that is owed Defendants. Furthermore, the injunction prevents Defendants from recouping that loss through the sale of the property. Plaintiff has already been living on the property without making any effort to cure the current default on his mortgage and is not making any mortgage payments. It is manifestly unjust to allow Plaintiff to continue to live in the property without 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATIONBRYAN CAVE LLP. 333 MARKET STREET, 25™ FLooR SAN FRANCISCO, CA 94105, on DAW paying his indebtedness. Each month Plaintiff remains in the property, Defendants are damaged in the amount of the monthly mortgage payment and the default amount continues to accrue. Although the Court has discretion to determine the appropriate bond amount, this Court has already done so. Therefore, Plaintiffs motion to reconsider should be denied. Vv. CONCLUSION Plaintiff's Motion for Reconsideration should be denied as Plaintiff fails to provide any basis for reconsidering the bond amount previously set by this Court. Dated: October 11, 2012 BRYAN CAVE LLP \ cannan SSA By: > Jessiva T. Ehsanian Attorneys for Defendants BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL ASSOCIATION”) and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S WHOLESALE LENDER 6 DEFENDANTS?’ OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATIONBRYAN Cave LLP 333 MARKET STREET, 25™ FLooR SAN FRANCISCO, CA 94105 CERTIFICATE OF SERVICE Tam employed in the aforesaid County, State of California; I am over the age of eighteen years and not a party to the within entitled action; my business address is: 333 Market Street, 25" Floor, San Francisco, California 94105 and my email address is novakr@bryancave.com. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION OR TO VACATE THE COURT’S ORDER RE AMOUNT OF BOND; and DECLARATION OF JESSICA T. EHSANIAN IN SUPPORT OF DEFENDANTS’ MOTION FOR RECONSIDERATION OR TO VACATE THE COURT’S ORDER RE AMOUNT OF BOND On the interested parties in this action by placing a true copy thereof on October 11, 2012, enclosed in a sealed envelope, addressed as follows: Law Offices of Russell Davis Attorney for Plaintiff Russell Davis 29 Lakewood Avenue San Francisco CA 94019 Tel: 415.409.5627 Fax: 415.520.2666 [] BY MAIL: I caused such envelope to be deposited in the mail at San Francisco, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Francisco, California in the ordinary course of business. [ am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. {X] (BY OVERNIGHT DELIVERY) Depositing the above document(s) in a box or other facility regularly maintained by FedEx in an envelope or package designated by FedEx with delivery fees paid or provided for. I declare that I am employed within the office of a member of the bar of this Court at whose direction the service was made. Executed on October 11, 2012. at San Francisco, California. SF0IDOCS\99866.1 PROOF OF SERVICE