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Clifford B. Scherer, SBN 27843
Law Offices of Clifford B. Scherer
800 Sunrise Ave. Suite C ELECTRONICALLY FILED
Roseville, CA 95661 superior Court of California,
Phone 916-298-7390 County of Placer
Email: cliffscherer@cliffordschererlaw.com 08/03/2020
Attomey for Plaintiff, By: OliviaLucatuorto, Deputy Clerk
YEVGENIY ZHILOVSKIY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF PLACER
UNLIMITED CIVIL DIVISION
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YEVGENIY ZHILOVSKIY Case No.: SCV0044682
11 Plaintiff,
12 ae
ae
Vv. PLAINTIFF YEVGENIY ZHILOVSKIY’S
OBJECTION AND OPPOSITION TO
ee
13 PRESTIGE DEFAULT SERVICES; U.S. DECLARATION OF NON-MONETARY
14 BANK TRUST NATIONAL ASSOCIATION, STATUS BY DEFENDANT PRESTIGE
DEFAULT SERVICES
eae
AS TRUSTEE OF THE LODGE SERIES III
15 TRUST; SN SERVICING CORPORATION;
all persons known and unknown, claiming any [Cal. Civil Code § 29241]
16 legal or equitable right, title,estate, lien, or
interest in the property described in the
17 complaint adverse to plaintiff's title,or any
18 cloud upon plaintiff's title thereto; and DOES
1 through 20, inclusive,
ee
19
Defendants.
20
ee
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ae
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ee
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eee
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mee
27 Plaintiff YEVGENIY ZHILOVSKIY, an individual (‘Plaintiff’) hereby objects to and
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Yevgeniy Zhilovskiy v.Prestige Default Services, efa/. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status
opposes Defendant PRESTIGE DEFAULT SERVICES Declaration of Non-Monetary Status.
A party that files a declaration of non-monetary status does not actually become a nominal
party until 15 days pass without objection. Cal. Civ. Code § 2924/(d); see also Silva v. Wells Fargo
Bank NA, No. 11-cv-3200 GAF, 2011 WL 2437514 at 5 (C.D. Cal. June 16, 2011). If a timely
objection to the declaration of non-monetary status is filed, the trustee will thereafter be required to
participate in the action or proceeding. Cal. Civ. Code, § 2924/(e). On timely service of an
objection to the declaration of non-monetary status, the trustee has 30 days from the date of service
within which to filean answer or other responsive pleading to the complaint or cross-complaint.
Cal. Civ. Code, § 2924/(f).
Here, as of July 30, 2020, the Placer County Superior Court’s website does not show that
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Defendant PRESTIGE DEFAULT SERVICES Declaration of Non-Monetary Status has yet been
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filed.
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Accordingly, pursuant to Cal. Civ. Code § 2924/, PRESTIGE DEFAULT SERVICES is
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required to participate in this action. See also 4 Miller & Starr, Cal. Real Est., Deed of Trust and
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Mortgages, § 10:4 (3d ed.) (§2924/ “appears to provide that the trustee must participate in the
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action whenever there is any objection to the non-monetary status, regardless of whether the
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objection is based on valid grounds”).
Moreover, the aforementioned Non-Monetary Declaration does not meet the requirements set
19 forth, inter alia, under Cal. Civ. Code § 2924/(b). Specifically, Cal. Civ. Code § 2924/(b) states;
20 “The declaration of nonmonetary status shall set forth the status of the trustee as
trustee under the deed of trust that is the subject of the action or proceeding, that
21 the trustee knows or maintains a reasonable belief that it has been named as a
22 defendant in the proceeding solely in its capacity as a trustee under the deed of
trust, itsreasonable belief that ithas not been named as a defendant due to any
23 acts or omissions on its part in the performance of its duties as trustee, the basis
24 for that knowledge or reasonable belief, and that it agrees to be bound by
whatever order or judgment is issued by the court regarding the subject deed of
25 trust.” [Bold Emphasis Added]
26 Here, PRESTIGE DEFAULT SERVICES was not named solely in itscapacity as substitute
27 trustee as PRESTIGE DEFAULT SERVICES claims in itsdeclaration.
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Yevgeniy Zhilovskiy v. PrestigeDefault Services, efa/. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status
On the contrary, Plaintiff's Complaint, on its face, asserts multiple claims against
PRESTIGE DEFAULT SERVICES.
Furthermore, Plaintiff?'s Complaint, on its face, alleges that Defendant PRESTIGE DEFAULT
SERVICES is not now, nor ever was, the true Trustee.
PRESTIGE DEFAULT SERVICES had no legal authority or power to initiate the foreclosure
sale and that said Defendant PRESTIGE DEFAULT SERVICES is neither the beneficiary,
mortgagee, trustee nor any of their authorized agents as required by California Civil Code §
2924(a)(1).
Finally, Defendant PRESTIGE DEFAULT SERVICES states in itsDeclaration of Non-
10 Monetary Status that “The basis for that belief is that the acts of PRESTIGE DEFAULT
11 SERVICES in commencing and proceeding with the foreclosure proceedings are privileged under
12 Civil Code § 2924(d), and Civil Code § 47.”
13 However, a trustee is nor privileged under California Civil Code § 2924(d) when, as here, it
14 did not act in good faith in acting as trustee, and a trustee isnot protected by Civil Code §47 because
15 the litigation privilege does not apply to claims of wrongful foreclosure arising from actions taken
16 in a non-judicial foreclosure proceeding; such proceedings are not judicial or official proceedings
17 under the anti-SLAPP statute. Crossroads Inv'rs, L.P. v. Fed. Nat'l Mortg. Ass'n, 13 Cal. App. 5th
18 757, 222 Cal. Rptr. 3d 1 (Ct. App. 2017).
19 In any event, Plaintiff requests that the Court find that PRESTIGE DEFAULT SERVICES
20 must participate in this action and respectfully requests an order that PRESTIGE DEFAULT
21 SERVICES answer or otherwise respond to the Complaint by a date the Court deems proper.
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23 IV. CONCLUSION
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Based upon the foregoing, Plaintiff YEVGENIY ZHILOVSKIY respectfully requests that
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Defendant PRESTIGE DEFAULT SERVICES’ Non-Monetary Status be determined to be of no
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force and effect in this action.
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In the event that the Court recognizes PRESTIGE DEFAULT SERVICES ‘Non-Monetary
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Yevgeniy Zhilovskiy v.Prestige Default Services, etal. _ Plaintiffs
Obj. & Oppo. to Decl. Of Non-Monetary Status
Declaration, Plaintiff respectfully and timely objects to said declaration and thus submits that
PRESTIGE DEFAULT SERVICES must participate in this action.
Accordingly, Plaintiff respectfully requests that PRESTIGE DEFAULT SERVICES be
ordered to answer or otherwise respond to the Complaint by a date the Court deems proper.
DD
NN
OH
Oo
Date: July 30, 2020 Respectfully Submitted,
oO
11 LAW OFFICES OF CLIF B. SCHERER
12 YH AULA ,
13 Clifford B. “Scherer, Esq. .
Attorney for Plaintiff,
14 YEVGENIY ZHILOVSKTY
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Yevgeniy Zhilovskiy v.Prestige Default Services, e7a/. PlaintiffsObj. & Oppo. to Decl. OfNon-Monetary Status
PROOF OF SERVICE
I am employed in the City of Roseville, County of Placer, State of California. I am over the
age of 18 and not a party to the action. My business address is 800 Sunrise Ave Suite C Roseville,
CA 95661.
On August 3, 2020 I served the following documents by placing a true copy thereof in a
sealed envelope(s)
PLAINTIFF YEVGENIY ZHILOVSKIY’S OBJECTION AND OPPOSITION TO
DECLARATION OF NON-MONETARY STATUS BY DEFENDANT PRESTIGE
DEFAULT SERVICES.
on the person(s) below as follows:
1. Shannon C. Williams
Coung M. Nguyen
GHIDOTTI | BERGER, LLP
1920 Old Tustin Ave
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Santa Ana, CA 92705
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v (MAIL) I placed the envelope for collection and mailing, following our ordinary
14 business practices. | am readily familiar with this firms’s practice for collecting and
processing correspondence for mailing, itis deposited in the ordinary course of
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business with the United States Postal Service, in a sealed envelope with postage
16 fully prepaid. |am a resident or employed in the county where the mailing
occurred. The envelope or package was placed in the mail at Roseville, California.
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I declare under penalty of perjury under the laws of the State of California that the
20 above is true and correct.
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22 Executed on August 3, 2020 at Roseville, California
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PAVEL TISKIY
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Yevgeniy Zhilovskiy v.Prestige Default Services, eral. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status
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Clifford B. Scherer, SBN 27843 Law Offices of Clifford B. Scherer 800 Sunrise Ave. Suite C ELECTRONICALLY FILED Roseville, CA 95661 superior Court of California, Phone 916-298-7390 County of Placer Email: cliffscherer@cliffordschererlaw.com 08/03/2020 Attomey for Plaintiff, By: OliviaLucatuorto, Deputy Clerk YEVGENIY ZHILOVSKIY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER UNLIMITED CIVIL DIVISION 10 YEVGENIY ZHILOVSKIY Case No.: SCV0044682 11 Plaintiff, 12 ae ae Vv. PLAINTIFF YEVGENIY ZHILOVSKIY’S OBJECTION AND OPPOSITION TO ee 13 PRESTIGE DEFAULT SERVICES; U.S. DECLARATION OF NON-MONETARY 14 BANK TRUST NATIONAL ASSOCIATION, STATUS BY DEFENDANT PRESTIGE DEFAULT SERVICES eae AS TRUSTEE OF THE LODGE SERIES III 15 TRUST; SN SERVICING CORPORATION; all persons known and unknown, claiming any [Cal. Civil Code § 29241] 16 legal or equitable right, title,estate, lien, or interest in the property described in the 17 complaint adverse to plaintiff's title,or any 18 cloud upon plaintiff's title thereto; and DOES 1 through 20, inclusive, ee 19 Defendants. 20 ee 21 ae 22 ee 23 eee 24 25 26 mee 27 Plaintiff YEVGENIY ZHILOVSKIY, an individual (‘Plaintiff’) hereby objects to and 28 I Yevgeniy Zhilovskiy v.Prestige Default Services, efa/. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status opposes Defendant PRESTIGE DEFAULT SERVICES Declaration of Non-Monetary Status. A party that files a declaration of non-monetary status does not actually become a nominal party until 15 days pass without objection. Cal. Civ. Code § 2924/(d); see also Silva v. Wells Fargo Bank NA, No. 11-cv-3200 GAF, 2011 WL 2437514 at 5 (C.D. Cal. June 16, 2011). If a timely objection to the declaration of non-monetary status is filed, the trustee will thereafter be required to participate in the action or proceeding. Cal. Civ. Code, § 2924/(e). On timely service of an objection to the declaration of non-monetary status, the trustee has 30 days from the date of service within which to filean answer or other responsive pleading to the complaint or cross-complaint. Cal. Civ. Code, § 2924/(f). Here, as of July 30, 2020, the Placer County Superior Court’s website does not show that 11 Defendant PRESTIGE DEFAULT SERVICES Declaration of Non-Monetary Status has yet been 12 filed. 13 Accordingly, pursuant to Cal. Civ. Code § 2924/, PRESTIGE DEFAULT SERVICES is 14 required to participate in this action. See also 4 Miller & Starr, Cal. Real Est., Deed of Trust and 15 Mortgages, § 10:4 (3d ed.) (§2924/ “appears to provide that the trustee must participate in the 16 action whenever there is any objection to the non-monetary status, regardless of whether the 17 objection is based on valid grounds”). Moreover, the aforementioned Non-Monetary Declaration does not meet the requirements set 19 forth, inter alia, under Cal. Civ. Code § 2924/(b). Specifically, Cal. Civ. Code § 2924/(b) states; 20 “The declaration of nonmonetary status shall set forth the status of the trustee as trustee under the deed of trust that is the subject of the action or proceeding, that 21 the trustee knows or maintains a reasonable belief that it has been named as a 22 defendant in the proceeding solely in its capacity as a trustee under the deed of trust, itsreasonable belief that ithas not been named as a defendant due to any 23 acts or omissions on its part in the performance of its duties as trustee, the basis 24 for that knowledge or reasonable belief, and that it agrees to be bound by whatever order or judgment is issued by the court regarding the subject deed of 25 trust.” [Bold Emphasis Added] 26 Here, PRESTIGE DEFAULT SERVICES was not named solely in itscapacity as substitute 27 trustee as PRESTIGE DEFAULT SERVICES claims in itsdeclaration. 28 2 Yevgeniy Zhilovskiy v. PrestigeDefault Services, efa/. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status On the contrary, Plaintiff's Complaint, on its face, asserts multiple claims against PRESTIGE DEFAULT SERVICES. Furthermore, Plaintiff?'s Complaint, on its face, alleges that Defendant PRESTIGE DEFAULT SERVICES is not now, nor ever was, the true Trustee. PRESTIGE DEFAULT SERVICES had no legal authority or power to initiate the foreclosure sale and that said Defendant PRESTIGE DEFAULT SERVICES is neither the beneficiary, mortgagee, trustee nor any of their authorized agents as required by California Civil Code § 2924(a)(1). Finally, Defendant PRESTIGE DEFAULT SERVICES states in itsDeclaration of Non- 10 Monetary Status that “The basis for that belief is that the acts of PRESTIGE DEFAULT 11 SERVICES in commencing and proceeding with the foreclosure proceedings are privileged under 12 Civil Code § 2924(d), and Civil Code § 47.” 13 However, a trustee is nor privileged under California Civil Code § 2924(d) when, as here, it 14 did not act in good faith in acting as trustee, and a trustee isnot protected by Civil Code §47 because 15 the litigation privilege does not apply to claims of wrongful foreclosure arising from actions taken 16 in a non-judicial foreclosure proceeding; such proceedings are not judicial or official proceedings 17 under the anti-SLAPP statute. Crossroads Inv'rs, L.P. v. Fed. Nat'l Mortg. Ass'n, 13 Cal. App. 5th 18 757, 222 Cal. Rptr. 3d 1 (Ct. App. 2017). 19 In any event, Plaintiff requests that the Court find that PRESTIGE DEFAULT SERVICES 20 must participate in this action and respectfully requests an order that PRESTIGE DEFAULT 21 SERVICES answer or otherwise respond to the Complaint by a date the Court deems proper. 22 23 IV. CONCLUSION 24 Based upon the foregoing, Plaintiff YEVGENIY ZHILOVSKIY respectfully requests that 25 Defendant PRESTIGE DEFAULT SERVICES’ Non-Monetary Status be determined to be of no 26 force and effect in this action. 27 In the event that the Court recognizes PRESTIGE DEFAULT SERVICES ‘Non-Monetary 28 3 Yevgeniy Zhilovskiy v.Prestige Default Services, etal. _ Plaintiffs Obj. & Oppo. to Decl. Of Non-Monetary Status Declaration, Plaintiff respectfully and timely objects to said declaration and thus submits that PRESTIGE DEFAULT SERVICES must participate in this action. Accordingly, Plaintiff respectfully requests that PRESTIGE DEFAULT SERVICES be ordered to answer or otherwise respond to the Complaint by a date the Court deems proper. DD NN OH Oo Date: July 30, 2020 Respectfully Submitted, oO 11 LAW OFFICES OF CLIF B. SCHERER 12 YH AULA , 13 Clifford B. “Scherer, Esq. . Attorney for Plaintiff, 14 YEVGENIY ZHILOVSKTY 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Yevgeniy Zhilovskiy v.Prestige Default Services, e7a/. PlaintiffsObj. & Oppo. to Decl. OfNon-Monetary Status PROOF OF SERVICE I am employed in the City of Roseville, County of Placer, State of California. I am over the age of 18 and not a party to the action. My business address is 800 Sunrise Ave Suite C Roseville, CA 95661. On August 3, 2020 I served the following documents by placing a true copy thereof in a sealed envelope(s) PLAINTIFF YEVGENIY ZHILOVSKIY’S OBJECTION AND OPPOSITION TO DECLARATION OF NON-MONETARY STATUS BY DEFENDANT PRESTIGE DEFAULT SERVICES. on the person(s) below as follows: 1. Shannon C. Williams Coung M. Nguyen GHIDOTTI | BERGER, LLP 1920 Old Tustin Ave 11 Santa Ana, CA 92705 12 13 v (MAIL) I placed the envelope for collection and mailing, following our ordinary 14 business practices. | am readily familiar with this firms’s practice for collecting and processing correspondence for mailing, itis deposited in the ordinary course of 15 business with the United States Postal Service, in a sealed envelope with postage 16 fully prepaid. |am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Roseville, California. 17 19 I declare under penalty of perjury under the laws of the State of California that the 20 above is true and correct. 21 22 Executed on August 3, 2020 at Roseville, California 23 24 PAVEL TISKIY 25 a > 26 27 28 5 Yevgeniy Zhilovskiy v.Prestige Default Services, eral. _ PlaintiffsObj. & Oppo. to Decl. Of Non-Monetary Status