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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-24-2012 8:58 am
Case Number: CGC-12-522638
Filing Date: Aug-24-2012 8:57
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03737429
"REPLY
RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al
001003737429
Instructions:
Please place this sheet on top of the document to be scanned.SOD Oem NY DH BB wWwNH He
NY N YN NN NN DY Se He Be Be Be Be ee me He
oN DH BF BN = SOD we ADAH RF DH A
LAW OFFICES OF RUSSELL DAVIS
Russell Davis (SB 177959)
29 Lakewood Avenue
San Francisco, CA 94109
Tel.: (415) 409-5627
Fax: (415) 520-2666
Attorneys for Plaintiff
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY
UNLIMITED JURISDICTION
RODOLFO VELASQUEZ, ) ACTION NO.: CGC-12-522638
)
Plaintiff, ) Reply to the Opposition to Plaintiff's
) Motion for Preliminary Injunction
vs. )
)
BANK OF AMERICA NATIONAL ) Date: August 30, 2012
ASSOCIATION, AMERICA’S ) Time: 9:30 am
WHOLESALE LENDER, ) Dept.: 302
COUNTRYWIDE HOME LOANS INC., _)
DOES 1-100 )
Defendants. )
)
Introduction
The defendant’s verbose opposition is framed more like a demurrer than a proper opposition.
It fails to address the interplay between irreparable harm and succeeding on the merits, and
completely ignores the fact that it cannot be prejudiced by the granting of the plaintiff's motion. As
shown below, the court should grant this motion. Although not necessary to proceed, plaintiff will
once again state the legal description of his property, which was stated in the verified complaint.
This legal description is in paragraph one of the verified complaint. Beginning at a point on the
Northerly line of Lobos Street, distant thereon 366 feet 8 inches Easterly from the easterly line of
Plymouth Avenue; running thence Easterly and along said line of Lobos Street 33 feet 4 inches;
thence at a right angle Northerly 125 feet; thence at a right angle Westerly 33 feet 4 inches; thence |
at a right angle Southerly 125 feet to the point of beginning. Being a part of Lot no. 5 in Block “Q”
Railroad Homestead Association. APN Lot 9, Block 7094. ,
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Argument
I. The defendant has filed a Notice of Default and can foreclose anytime within 20 days.
The opposition claims that the motion is premature in that no notice of trustee’s sale has been
filed. It misses an obvious point: it has filed a Notice of Default and the three month statutory time
to file a Notice of Trustee’s Sale has already run. Declaration of Russell Davis in Reply, exhibit 3.
It has been more than 3 months since the filing of this notice. In other words, the defendant can
foreclose the subject property within 20 days. This is nothing less than an impending disaster that
needs to be enjoined.
II. The motion for preliminary injunction requires a balancing test.
The trial court must consider two factors on a motion for preliminary injunction: the
likelihood the plaintiff will prevail on the merits; and the relative balance of harms that is likely to
result from the granting or denial of interim relief: The greater the showing on one, the less must
beshown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668,
678.). Bordessa v. Lanker, Al 17626 (Cal. App. 3/27/2008) (Cal. App., 2008). (Emphasis added).
In this case we have extreme prejudice to the plaintiff if his home is allowed to be sold
pendent lite. The defendant is oversecured, i.e., the house is worth way more than the liens that
encumber the house. See Declaration of Thomas Myers, para. 3, exhibit 2. The loan at issue has
approximately $136,000.00 balance. The arrears total approximately $21,000.00. The plaintiff at
all times was and is willing to pay the proper balance owned to the defendant. Because they are
oversecured, and because the plaintiff has cash to pay the proper amount in arrears, the defendant
has zero at risk. Therefore the balance of equities tilts substantially in the plaintiff's favor, and the
necessary showing on the merits is greatly reduced.
III. There is no legal entity called “America’s Wholesale Lender.”
Defendant states, without evidence, that America’s Wholesale Lender is a legal entity.
However, it is not. The legal entity name is “America’s Wholesale Lender, Incorporated.” See
Davis declaration in reply, paras. 2 &3, exhibits 1 &2. As the loan papers and trust deed were made
out to a fictitious entity, they are void. At the very least, the defendant needs time to prove this up
further without concern that his property will be foreclosed in the interim.
-2-NY DW BRB WN
IV. There is a breach of contract on the face of the documents.
The plaintiff's contract rate for his fixed rate loan is clearly stated on the loan papers attached
to his declaration. See Velasquez declaration, exhibit 1. The defendant is asking for almost $200.00
more than the fixed rate payment. See declaration of Rodolfo Velasques, para. 7. For 10 years prior
to the defendant taking over the loan the plaintiff paid his taxes in April, with the consent of
Countrywide. Id, para. 5. The defendant “jumped the gun” by paying his 2009-2010 property taxes,
land did so without notice to the plaintiff. The defendant is attorned to the Countrywide contract,
which now includes the course of conduct that the parties engaged in for 10 years prior to this
defendant buying Countrywide. In other words, the existing contract has been modified by the
behavior of the parties, ie., there is an implied in fact contract modification allowing the plaintiff to
pay his taxes in one installment in April. Furthermore, the defendant failed to respond to the
plaintiff's legitimate inquiries concerning the additional payment, (Id., para. 7). and should be
estopped from collecting such additional payments pendente lite.
V. There is an unfair business practice. Plaintiff has demonstrated injury in fact.
Plaintiff is injured (i.e., damaged) because the defendant has asked for more money than it is |
entitled to received under the existing loan. The defendant has filed a patently false Notice of Default
that slanders the title to his property and has created great stress for this disabled plaintiff. It is hard
to imagine a more unjust and unfair business practice.
VI. Plaintiff has adequately pled fraud.
Defendant seems to confuse adequacy of pleading with evidentiary proof. Plaintiff submits
lhe has met the pleading standard for pleading fraud.
VIL. Plaintiff has adequately plead Intentional Infliction of emotional distress, or at the
very least, negligence.
Plaintiff has polio, (verified complaint, para. 1) and the stress caused by the unlawful
foreclosure activities of the defendant has aggravated his symptoms. Despite his many attempts to
discuss the matter with the defendant’s customer service he was never able to get an adequate
response as to why his payments increased. Contrary to defendant’s argument, the defendant owes
the plaintiff a duty of ordinary care. Civil Code 1714. Itis absurd to argue, as defendants do, that they
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can unjustly increase the payments on a fixed rate loan without breaching that duty.
VIII. Defendant’s argument that there is no irregularity in the foreclosure process it
used is patently absurd.
It should be obvious that there needs to be a breach, by the plaintiff, of the underlying contract
to pay as agreed before the defendant can file a Notice of Default. As there was no such breach on
the plaintiff's part the plaintiff is justified in bringing this action and this motion.
IX. There is no adequate remedy at law.
Defendant forgets that its customer service department has utterly failed to inform the plaintiff
why he owes more money than the stated amount on his loan papers. Velasquez declaration, para.
7. The defendant also forgets that it failed to cash the amounts tendered by the plaintiff and returned
the checks only because they were'not certified funds. Id., para. 7. There is no requirement to pay
with certified funds and it is defendant’s filing of a false Notice of Default that has led to this lawsuit.
The plaintiff should not be forced to overpay his debt to the defendant in order to later file suit for
damages. Moreover, to that extent this litigation is about damages, all issues herein can be resolved
by the court.
X. The undertaking should be a nominal amount.
The defendant is oversecured and a large undertaking is therefore unnecessary. To the extent
lone is required, it should be a nominal amount.
Conclusion
Defendant should not benefit from its own negligence in hastily demanding more money from
the plaintiff that it should lawfully receive. Because it has chosen to not accept the monies that were
tendered, and because it had no right to file a patently false Notice of Default, and because the
defendant can, at any time, file a Notice of Trustee’s sale, the court should grant the plaintiff's mtion
land enjoin such sale pendent lite.
Dated: August 23, 2012
Russell Davis, Attorney a
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PROOF OF SERVICE BY MAIL
I declare that:
I am employed in the County of San Francisco, State of California. I am over 18
years of age and not a party to the within action. My business address is 29 Lakewood
Avenue, San Francisco, CA 94127.
On the date signed hereunder, I served the within REPLY, DECLARATION OF
RUSSELL DAVIS, DECLARATION OF RODOLFO VELASQUEZ, by placing a true
copy thereof, enclosed in a sealed envelope, with certified mail, first class postage fully
prepaid thereon, return receipt requested, in the United States Mail at San Francisco,
California, addressed as follows:
Jessica Ehsanian, Esq.
Saeed
I declare under penalty of perjury under the laws of California that the foregoing is
true and correct. Executed on August 24, 2012 at San Francisco, California.
Russell Davis
GF
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-24-2012 8:58 am Case Number: CGC-12-522638 Filing Date: Aug-24-2012 8:57 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03737429 "REPLY RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al 001003737429 Instructions: Please place this sheet on top of the document to be scanned.SOD Oem NY DH BB wWwNH He NY N YN NN NN DY Se He Be Be Be Be ee me He oN DH BF BN = SOD we ADAH RF DH A LAW OFFICES OF RUSSELL DAVIS Russell Davis (SB 177959) 29 Lakewood Avenue San Francisco, CA 94109 Tel.: (415) 409-5627 Fax: (415) 520-2666 Attorneys for Plaintiff THE SUPERIOR COURT OF SAN FRANCISCO COUNTY UNLIMITED JURISDICTION RODOLFO VELASQUEZ, ) ACTION NO.: CGC-12-522638 ) Plaintiff, ) Reply to the Opposition to Plaintiff's ) Motion for Preliminary Injunction vs. ) ) BANK OF AMERICA NATIONAL ) Date: August 30, 2012 ASSOCIATION, AMERICA’S ) Time: 9:30 am WHOLESALE LENDER, ) Dept.: 302 COUNTRYWIDE HOME LOANS INC., _) DOES 1-100 ) Defendants. ) ) Introduction The defendant’s verbose opposition is framed more like a demurrer than a proper opposition. It fails to address the interplay between irreparable harm and succeeding on the merits, and completely ignores the fact that it cannot be prejudiced by the granting of the plaintiff's motion. As shown below, the court should grant this motion. Although not necessary to proceed, plaintiff will once again state the legal description of his property, which was stated in the verified complaint. This legal description is in paragraph one of the verified complaint. Beginning at a point on the Northerly line of Lobos Street, distant thereon 366 feet 8 inches Easterly from the easterly line of Plymouth Avenue; running thence Easterly and along said line of Lobos Street 33 feet 4 inches; thence at a right angle Northerly 125 feet; thence at a right angle Westerly 33 feet 4 inches; thence | at a right angle Southerly 125 feet to the point of beginning. Being a part of Lot no. 5 in Block “Q” Railroad Homestead Association. APN Lot 9, Block 7094. , ar0 OD ND HWA BF BN | NN NY NY YN NK NY NY HY Be Be ewe Be ewe Be ewe eH ont DAH KF Bw YN - SSD we IY DAH BR BNR SF Argument I. The defendant has filed a Notice of Default and can foreclose anytime within 20 days. The opposition claims that the motion is premature in that no notice of trustee’s sale has been filed. It misses an obvious point: it has filed a Notice of Default and the three month statutory time to file a Notice of Trustee’s Sale has already run. Declaration of Russell Davis in Reply, exhibit 3. It has been more than 3 months since the filing of this notice. In other words, the defendant can foreclose the subject property within 20 days. This is nothing less than an impending disaster that needs to be enjoined. II. The motion for preliminary injunction requires a balancing test. The trial court must consider two factors on a motion for preliminary injunction: the likelihood the plaintiff will prevail on the merits; and the relative balance of harms that is likely to result from the granting or denial of interim relief: The greater the showing on one, the less must beshown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.). Bordessa v. Lanker, Al 17626 (Cal. App. 3/27/2008) (Cal. App., 2008). (Emphasis added). In this case we have extreme prejudice to the plaintiff if his home is allowed to be sold pendent lite. The defendant is oversecured, i.e., the house is worth way more than the liens that encumber the house. See Declaration of Thomas Myers, para. 3, exhibit 2. The loan at issue has approximately $136,000.00 balance. The arrears total approximately $21,000.00. The plaintiff at all times was and is willing to pay the proper balance owned to the defendant. Because they are oversecured, and because the plaintiff has cash to pay the proper amount in arrears, the defendant has zero at risk. Therefore the balance of equities tilts substantially in the plaintiff's favor, and the necessary showing on the merits is greatly reduced. III. There is no legal entity called “America’s Wholesale Lender.” Defendant states, without evidence, that America’s Wholesale Lender is a legal entity. However, it is not. The legal entity name is “America’s Wholesale Lender, Incorporated.” See Davis declaration in reply, paras. 2 &3, exhibits 1 &2. As the loan papers and trust deed were made out to a fictitious entity, they are void. At the very least, the defendant needs time to prove this up further without concern that his property will be foreclosed in the interim. -2-NY DW BRB WN IV. There is a breach of contract on the face of the documents. The plaintiff's contract rate for his fixed rate loan is clearly stated on the loan papers attached to his declaration. See Velasquez declaration, exhibit 1. The defendant is asking for almost $200.00 more than the fixed rate payment. See declaration of Rodolfo Velasques, para. 7. For 10 years prior to the defendant taking over the loan the plaintiff paid his taxes in April, with the consent of Countrywide. Id, para. 5. The defendant “jumped the gun” by paying his 2009-2010 property taxes, land did so without notice to the plaintiff. The defendant is attorned to the Countrywide contract, which now includes the course of conduct that the parties engaged in for 10 years prior to this defendant buying Countrywide. In other words, the existing contract has been modified by the behavior of the parties, ie., there is an implied in fact contract modification allowing the plaintiff to pay his taxes in one installment in April. Furthermore, the defendant failed to respond to the plaintiff's legitimate inquiries concerning the additional payment, (Id., para. 7). and should be estopped from collecting such additional payments pendente lite. V. There is an unfair business practice. Plaintiff has demonstrated injury in fact. Plaintiff is injured (i.e., damaged) because the defendant has asked for more money than it is | entitled to received under the existing loan. The defendant has filed a patently false Notice of Default that slanders the title to his property and has created great stress for this disabled plaintiff. It is hard to imagine a more unjust and unfair business practice. VI. Plaintiff has adequately pled fraud. Defendant seems to confuse adequacy of pleading with evidentiary proof. Plaintiff submits lhe has met the pleading standard for pleading fraud. VIL. Plaintiff has adequately plead Intentional Infliction of emotional distress, or at the very least, negligence. Plaintiff has polio, (verified complaint, para. 1) and the stress caused by the unlawful foreclosure activities of the defendant has aggravated his symptoms. Despite his many attempts to discuss the matter with the defendant’s customer service he was never able to get an adequate response as to why his payments increased. Contrary to defendant’s argument, the defendant owes the plaintiff a duty of ordinary care. Civil Code 1714. Itis absurd to argue, as defendants do, that they -3- FE a NP AD Wi > ro RD ui OFCm IY DH BF YW Ye oS can unjustly increase the payments on a fixed rate loan without breaching that duty. VIII. Defendant’s argument that there is no irregularity in the foreclosure process it used is patently absurd. It should be obvious that there needs to be a breach, by the plaintiff, of the underlying contract to pay as agreed before the defendant can file a Notice of Default. As there was no such breach on the plaintiff's part the plaintiff is justified in bringing this action and this motion. IX. There is no adequate remedy at law. Defendant forgets that its customer service department has utterly failed to inform the plaintiff why he owes more money than the stated amount on his loan papers. Velasquez declaration, para. 7. The defendant also forgets that it failed to cash the amounts tendered by the plaintiff and returned the checks only because they were'not certified funds. Id., para. 7. There is no requirement to pay with certified funds and it is defendant’s filing of a false Notice of Default that has led to this lawsuit. The plaintiff should not be forced to overpay his debt to the defendant in order to later file suit for damages. Moreover, to that extent this litigation is about damages, all issues herein can be resolved by the court. X. The undertaking should be a nominal amount. The defendant is oversecured and a large undertaking is therefore unnecessary. To the extent lone is required, it should be a nominal amount. Conclusion Defendant should not benefit from its own negligence in hastily demanding more money from the plaintiff that it should lawfully receive. Because it has chosen to not accept the monies that were tendered, and because it had no right to file a patently false Notice of Default, and because the defendant can, at any time, file a Notice of Trustee’s sale, the court should grant the plaintiff's mtion land enjoin such sale pendent lite. Dated: August 23, 2012 Russell Davis, Attorney a pe ow RP RD vi i ee RD vi aA BF WN 0 Oe ND PROOF OF SERVICE BY MAIL I declare that: I am employed in the County of San Francisco, State of California. I am over 18 years of age and not a party to the within action. My business address is 29 Lakewood Avenue, San Francisco, CA 94127. On the date signed hereunder, I served the within REPLY, DECLARATION OF RUSSELL DAVIS, DECLARATION OF RODOLFO VELASQUEZ, by placing a true copy thereof, enclosed in a sealed envelope, with certified mail, first class postage fully prepaid thereon, return receipt requested, in the United States Mail at San Francisco, California, addressed as follows: Jessica Ehsanian, Esq. Saeed I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Executed on August 24, 2012 at San Francisco, California. Russell Davis GF