Preview
F Superior Court of California
Raymond L. Sandelman SBN 078020
County of Butte
Attorney at Law |
196 Cohasset Road, Suite 225
L 2/19/2021
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (FAX)
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Email:Raymond@sandelmanlaw.com
D Ki lener: Cjerl
By Deputy
Electronically FILED
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
11
WAYNE A. COOK, TRUSTEE OF THE
12 NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 TRUST DATED 12/29/98, NOTICE OF HEARING OF DEMURRER TO
AMENDED CROSS COMPLAINT OF JOHN
14
Plaintiff,
DENTON, CONSERVATOR OF THE
ESTATE OF EDWARD F. NIDEROST AND
15
AS SUCCESSOR TRUSTEE OF THE
16 EDWARD F. NIDEROST REVOCABLE
EDWARD F. NIDEROST, et. al., LIVING TRUST
17
18
Defendants. Hearing Date: 3/17/2021
Hearing Time: 9:00 a.m.
19 / Department: 1
AND RELATED CROSS COMPLAINTS Judge: Tamara Mosbarger
20 Date of Complaint: 4/22/2020
/ Trial Date: 3/29/2021
21
22
23 TO JOHN DENTON, CONSERVATOR OF THE ESTATE OF EDWARD F. NIDEROST
24 AND AS SUCCESSOR TRUSTEE OF THE EDWARD F. NIDEROST REVOCABLE LIVING
25 TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY & KNOWLES LLP, AND ALL
26 OTHER PARTIES:
27 NOTICE IS HEREBY GIVEN that Wayne A. Cook, Trustee of The Wayne A. Cook 1998
28 Family Trust Dated 12/29/98’s demurrer to the First, Eighth, Ninth and Tenth Cause of Action to
1
NOTICE OF HEARING ON DEMURRER TO AMENDED CROSS COMPLAINT
the Amended Cross Complaint by John Denton, Conservator Of The Estate Of Edward F. Niderost
and as Successor Trustee Of The Edward F. Niderost Revocable Living Trust has been set for
hearing on March 17, 2021 at 9:00 a.m. or as soon thereafter as the matter can be heard in
Department 1 of the above-entitled court located at 1775 Concord Avenue, Chico, California.
The Court follows the tentative ruling procedure set forth in California Rules of Court Rule
3.1308 subdivision (a)(1): tentative rulings on law and motion matters will be available on the Court’s
website at www.buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day
preceding the hearing.
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NOTICE OF HEARING ON DEMURRER TO AMENDED CROSS COMPLAINT
Raymond L. Sandelman SBN 078020
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090/ (530) 343-5091 (FAX)
Email:Raymond@sandelmanlaw.com
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
1
WAYNE A. COOK, TRUSTEE OF THE
12 NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 TRUST DATED 12/29/98, DEMURRER TO AMENDED CROSS
COMPLAINT OF JOHN DENTON,
Plaintiff,
14 CONSERVATOR OF THE ESTATE OF
EDWARD F NIDEROST AND AS
15
SUCCESSOR TRUSTEE OF THE EDWARD
16 F. NIDEROST REVOCABLE LIVING TRUST
EDWARD F. NIDEROST, et. al.,
17 Hearing Date: 3/17/2021
Defendants. Hearing Time: 9:00 a.m.
18
Department: 1
/ Judge: Tamara Mosbarger
19
AND RELATED CROSS COMPLAINTS Date of Complaint: 4/22/2020
20 Trial Date: 3/29/2021
/
21
22
23 Wayne A. Cook, individually, and Wayne A. Cook, Trustee of The Wayne A. Cook 1998
24 Family Trust Dated 12/29/98 (hereafter referred to as “Wayne A. Cook, Trustee”) demur to the
25 First, Eighth, Ninth and Tenth Causes of Action to the Amended Cross Complaint by John Denton,
26 Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F.
27 Niderost Revocable Living Trust, on the following grounds:
28 (a) The First Cause of Action in the Amended Cross Complaint fails to state facts sufficient
DEMURRER TO AMENDED CROSS COMPLAINT
to constitute a cause of actions against Wayne A. Cook, individually .
(b) The Eighth Cause of Action in the Amended Cross Complaint fails to state facts sufficient
to constitute a cause of actions against Wayne A. Cook, individually.
(c) The Ninth Cause of Action in the Amended Cross Complaint fails to state facts sufficient
to constitute a cause of actions against Wayne A. Cook, individually.
(d) The Tenth Cause of Action in the Amended Cross Complaint fails to state facts sufficient
to constitute a cause of actions against Wayne A. Cook, individually.
(e) The First Cause of Action in the Amended Cross Complaint is uncertain as to Wayne A.
Cook, individually, because the pleading is based on written exhibits that are alleged to be attached
10 to the document as Exhibits B through H, but there are no exhibits attached to the pleading.
i (f) The Eighth Cause of Action in the Amended Cross Complaint is uncertain Wayne A.
ao
12 Cook, individually because the pleading is based on written exhibits that are alleged to be attached
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14 (g) The Ninth Cause of Action in the Amended Cross Complaint is uncertain Wayne A.
Coe
65
652 16 to the document as Exhibits B through H, but there are no exhibits attached to the pleading.
The Dodd-Frank Wall Street Reform and Consumer Protection Act provides at 15 U.S.C. § 1640(k) a defense
to foreclosures by allowing a consumer to assert a claim based on a violation of the ability to repay requirements of 15
25 U.S.C. § 1639c(a). See Khadher v. PNC Bank, N.A. (6th Cir. 2014) 577 Fed.Appx. 470, 479, This statue is part of the
Truth in Lending Act set forth at 15 U.S.C.A. §§1601-1667f.
26 6 Regulation Z implements the Truth And Lending Act (12 C.F.R. § 226.1 and §1026.1) The regulations are
set forth at 12 C.F.R. § 226.1-226.59, and §1026.1-1026.61)
27 ’ The Real Estate Settlement Procedures Act is codified at 12 U.S.C.A. § 2601 et seq.
® The Amended Cross Complaint states at Page 2 lines 1-2 that Edward F. Niderost individually and as trustee
28 of the Edward F. Niderost Revocable Living Trust are the Cross-Complainant.
° The Fine $500,000 Note is described at Paragraph 32 and Exhibit E to the Cross Complaint.
22
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED CROSS
COMPLAINT
which may be judicially noticed (see Section 8 of this Brief). The Amended Cross Complaint also
alleges at Page 5 line 26 to Page 6 line 2 that the purchase was funded by Cross-Complainants
withdrawing from an equity line of credit secured by Cross-Complainants’ residence (a different
loan on a different dwelling). The absence of an allegation of ultimate fact, with particularity, that
the transaction was a residential mortgage transaction and a consumer credit transaction, means that
prima facia elements of the statutory claims are missing:
(a) Only a creditor involved in a residential mortgage transaction is statutorily required to
make a determination that the consumer has a reasonable ability to repay the loan (15 U.S.C.A.
§1639c) because the remedies of the Truth in Lending Act are available only in “consumer credit
10 transactions.” Extensions of credit for non-consumer purposes, such as loans for a business purpose,
Be
ae 11 even when that loan is obtained by a natural person are outside the scope of the statutes. (Gilliam,
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28
TABLE OF EXHIBITS
Raymond L. Sandelman SBN 078020
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (FAX)
Email:Raymond@sandelmanlaw.com
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
11
WAYNE A. COOK, TRUSTEE OF THE
12 NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 TRUST DATED 12/29/98, DECLARATION IN SUPPORT OF
Plaintiff, DEMURRER TO AMENDED CROSS
14 COMPLAINT OF JOHN DENTON,
CONSERVATOR OF THE ESTATE OF
15
EDWARD F NIDEROST AND AS
16 SUCCESSOR TRUSTEE OF THE EDWARD
EDWARD F. NIDEROST, et. al., F, NIDEROST REVOCABLE LIVING TRUST
17
18
Defendants. Hearing Date: 3/17/2021
Hearing Time: 9:00 a.m.
/
19 Department: 1
AND RELATED CROSS COMPLAINTS Judge: Tamara Mosbarger
20 Date of Complaint: 4/22/2020
/ Trial Date: 3/29/2021
21
22
23 I, Raymond L. Sandelman, declare that:
24 1. I am an attorney licensed to practice in all California state courts, and the attorney for
25 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98.
26 2. I sent defense counsel a meet and confer communication and a draft of this demurrer
27 discussing the pleading deficiencies in the Amended Cross Complaint. Ms. Knowles did not take
28 my telephone call when I tried to discuss the pleading deficiencies. She did not respond in writing
29
DECLARATION IN SUPPORT OF DEMURRER TO AMENDED CROSS COMPLAINT
to my meet and confer communication. I obtained an extension and then sent Ms. Knowles a draft
of the brief. I telephoned her and she was unavailable to discuss the pleading deficiencies.
3. On February 11, 2021 I filed a declaration entitling me to a thirty day extension from the
original due date of the demurrer (February 17, 2021) to file a demurrer.
4. Attached hereto marked Exhibit 1 are true and correct copies of portions of the transcript
to Edward Niderost’s deposition.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
10
11
Dated: Febivy A, 2e2l Seal
Raymond L. Sandelman
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Preview
F Superior Court of California Raymond L. Sandelman SBN 078020 County of Butte Attorney at Law | 196 Cohasset Road, Suite 225 L 2/19/2021 Chico, CA 95926-2284 (530) 343-5090 / (530) 343-5091 (FAX) E Email:Raymond@sandelmanlaw.com D Ki lener: Cjerl By Deputy Electronically FILED Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 11 WAYNE A. COOK, TRUSTEE OF THE 12 NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 TRUST DATED 12/29/98, NOTICE OF HEARING OF DEMURRER TO AMENDED CROSS COMPLAINT OF JOHN 14 Plaintiff, DENTON, CONSERVATOR OF THE ESTATE OF EDWARD F. NIDEROST AND 15 AS SUCCESSOR TRUSTEE OF THE 16 EDWARD F. NIDEROST REVOCABLE EDWARD F. NIDEROST, et. al., LIVING TRUST 17 18 Defendants. Hearing Date: 3/17/2021 Hearing Time: 9:00 a.m. 19 / Department: 1 AND RELATED CROSS COMPLAINTS Judge: Tamara Mosbarger 20 Date of Complaint: 4/22/2020 / Trial Date: 3/29/2021 21 22 23 TO JOHN DENTON, CONSERVATOR OF THE ESTATE OF EDWARD F. NIDEROST 24 AND AS SUCCESSOR TRUSTEE OF THE EDWARD F. NIDEROST REVOCABLE LIVING 25 TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY & KNOWLES LLP, AND ALL 26 OTHER PARTIES: 27 NOTICE IS HEREBY GIVEN that Wayne A. Cook, Trustee of The Wayne A. Cook 1998 28 Family Trust Dated 12/29/98’s demurrer to the First, Eighth, Ninth and Tenth Cause of Action to 1 NOTICE OF HEARING ON DEMURRER TO AMENDED CROSS COMPLAINT the Amended Cross Complaint by John Denton, Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F. Niderost Revocable Living Trust has been set for hearing on March 17, 2021 at 9:00 a.m. or as soon thereafter as the matter can be heard in Department 1 of the above-entitled court located at 1775 Concord Avenue, Chico, California. The Court follows the tentative ruling procedure set forth in California Rules of Court Rule 3.1308 subdivision (a)(1): tentative rulings on law and motion matters will be available on the Court’s website at www.buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day preceding the hearing. rUG 10 Dated: Filo tuery (Vaou 11 Raymond L. Sandelman 12 Attorney for Wayne A Cook, ao ae individually and as Trustee of The sé oe 13 Wayne A. Cook 1998 Family Trust 33 2s BSEa ss oR 14 Ao¢g eee GES AS 15 ieas Zac Ze S2s £28 16 g<69Sa $f ea 5S BR 17 ge 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF HEARING ON DEMURRER TO AMENDED CROSS COMPLAINT Raymond L. Sandelman SBN 078020 Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090/ (530) 343-5091 (FAX) Email:Raymond@sandelmanlaw.com Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 1 WAYNE A. COOK, TRUSTEE OF THE 12 NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 TRUST DATED 12/29/98, DEMURRER TO AMENDED CROSS COMPLAINT OF JOHN DENTON, Plaintiff, 14 CONSERVATOR OF THE ESTATE OF EDWARD F NIDEROST AND AS 15 SUCCESSOR TRUSTEE OF THE EDWARD 16 F. NIDEROST REVOCABLE LIVING TRUST EDWARD F. NIDEROST, et. al., 17 Hearing Date: 3/17/2021 Defendants. Hearing Time: 9:00 a.m. 18 Department: 1 / Judge: Tamara Mosbarger 19 AND RELATED CROSS COMPLAINTS Date of Complaint: 4/22/2020 20 Trial Date: 3/29/2021 / 21 22 23 Wayne A. Cook, individually, and Wayne A. Cook, Trustee of The Wayne A. Cook 1998 24 Family Trust Dated 12/29/98 (hereafter referred to as “Wayne A. Cook, Trustee”) demur to the 25 First, Eighth, Ninth and Tenth Causes of Action to the Amended Cross Complaint by John Denton, 26 Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F. 27 Niderost Revocable Living Trust, on the following grounds: 28 (a) The First Cause of Action in the Amended Cross Complaint fails to state facts sufficient DEMURRER TO AMENDED CROSS COMPLAINT to constitute a cause of actions against Wayne A. Cook, individually . (b) The Eighth Cause of Action in the Amended Cross Complaint fails to state facts sufficient to constitute a cause of actions against Wayne A. Cook, individually. (c) The Ninth Cause of Action in the Amended Cross Complaint fails to state facts sufficient to constitute a cause of actions against Wayne A. Cook, individually. (d) The Tenth Cause of Action in the Amended Cross Complaint fails to state facts sufficient to constitute a cause of actions against Wayne A. Cook, individually. (e) The First Cause of Action in the Amended Cross Complaint is uncertain as to Wayne A. Cook, individually, because the pleading is based on written exhibits that are alleged to be attached 10 to the document as Exhibits B through H, but there are no exhibits attached to the pleading. i (f) The Eighth Cause of Action in the Amended Cross Complaint is uncertain Wayne A. ao 12 Cook, individually because the pleading is based on written exhibits that are alleged to be attached aR sé oe 13 to the document as Exhibits B through H, but there are no exhibits attached to the pleading. zs B<56 gs oR 14 (g) The Ninth Cause of Action in the Amended Cross Complaint is uncertain Wayne A. Coe 65 652 16 to the document as Exhibits B through H, but there are no exhibits attached to the pleading. The Dodd-Frank Wall Street Reform and Consumer Protection Act provides at 15 U.S.C. § 1640(k) a defense to foreclosures by allowing a consumer to assert a claim based on a violation of the ability to repay requirements of 15 25 U.S.C. § 1639c(a). See Khadher v. PNC Bank, N.A. (6th Cir. 2014) 577 Fed.Appx. 470, 479, This statue is part of the Truth in Lending Act set forth at 15 U.S.C.A. §§1601-1667f. 26 6 Regulation Z implements the Truth And Lending Act (12 C.F.R. § 226.1 and §1026.1) The regulations are set forth at 12 C.F.R. § 226.1-226.59, and §1026.1-1026.61) 27 ’ The Real Estate Settlement Procedures Act is codified at 12 U.S.C.A. § 2601 et seq. ® The Amended Cross Complaint states at Page 2 lines 1-2 that Edward F. Niderost individually and as trustee 28 of the Edward F. Niderost Revocable Living Trust are the Cross-Complainant. ° The Fine $500,000 Note is described at Paragraph 32 and Exhibit E to the Cross Complaint. 22 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED CROSS COMPLAINT which may be judicially noticed (see Section 8 of this Brief). The Amended Cross Complaint also alleges at Page 5 line 26 to Page 6 line 2 that the purchase was funded by Cross-Complainants withdrawing from an equity line of credit secured by Cross-Complainants’ residence (a different loan on a different dwelling). The absence of an allegation of ultimate fact, with particularity, that the transaction was a residential mortgage transaction and a consumer credit transaction, means that prima facia elements of the statutory claims are missing: (a) Only a creditor involved in a residential mortgage transaction is statutorily required to make a determination that the consumer has a reasonable ability to repay the loan (15 U.S.C.A. §1639c) because the remedies of the Truth in Lending Act are available only in “consumer credit 10 transactions.” Extensions of credit for non-consumer purposes, such as loans for a business purpose, Be ae 11 even when that loan is obtained by a natural person are outside the scope of the statutes. (Gilliam, <é oF os gs 12 220 Trustee of Lou Easter Ross Revocable Trust v. Levine, Trustee of Joel Sherman Revocable Trust (9th Bera B20 Bonn ax SE? 17 Eb68 Sa aa 5S BS 18 Bs 19 20 21 22 23 24 25 26 27 28 mz:\orig_data\work\client directories\cook, wayne 1814\demurrerxcp&a 219.docx 28 TABLE OF EXHIBITS Raymond L. Sandelman SBN 078020 Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 / (530) 343-5091 (FAX) Email:Raymond@sandelmanlaw.com Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 11 WAYNE A. COOK, TRUSTEE OF THE 12 NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 TRUST DATED 12/29/98, DECLARATION IN SUPPORT OF Plaintiff, DEMURRER TO AMENDED CROSS 14 COMPLAINT OF JOHN DENTON, CONSERVATOR OF THE ESTATE OF 15 EDWARD F NIDEROST AND AS 16 SUCCESSOR TRUSTEE OF THE EDWARD EDWARD F. NIDEROST, et. al., F, NIDEROST REVOCABLE LIVING TRUST 17 18 Defendants. Hearing Date: 3/17/2021 Hearing Time: 9:00 a.m. / 19 Department: 1 AND RELATED CROSS COMPLAINTS Judge: Tamara Mosbarger 20 Date of Complaint: 4/22/2020 / Trial Date: 3/29/2021 21 22 23 I, Raymond L. Sandelman, declare that: 24 1. I am an attorney licensed to practice in all California state courts, and the attorney for 25 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98. 26 2. I sent defense counsel a meet and confer communication and a draft of this demurrer 27 discussing the pleading deficiencies in the Amended Cross Complaint. Ms. Knowles did not take 28 my telephone call when I tried to discuss the pleading deficiencies. She did not respond in writing 29 DECLARATION IN SUPPORT OF DEMURRER TO AMENDED CROSS COMPLAINT to my meet and confer communication. I obtained an extension and then sent Ms. Knowles a draft of the brief. I telephoned her and she was unavailable to discuss the pleading deficiencies. 3. On February 11, 2021 I filed a declaration entitling me to a thirty day extension from the original due date of the demurrer (February 17, 2021) to file a demurrer. 4. Attached hereto marked Exhibit 1 are true and correct copies of portions of the transcript to Edward Niderost’s deposition. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 10 11 Dated: Febivy A, 2e2l Seal Raymond L. Sandelman ae 12 ag <é oe 13 ae gs oR g