On 06/12/2017 ALEXANDER LU filed a Property - Other Real Property lawsuit against RUSHMORE LOAN MANAGEMENT SERVICES, LLC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ and CURTIS A. KIN. The case status is Pending - Other Pending.
****6657
06/12/2017
Pending - Other Pending
Los Angeles County Superior Courts
Burbank Courthouse
Los Angeles, California
LAURA A. MATZ
CURTIS A. KIN
LU ALEXANDER
LU AN INDIVIDUAL ALEXANDER
RUSHMORE LOAN MANAGEMENT SERVICES LLC
BANK OF AMERICA NAITONAL ASSOCIATION A UNITED STATES CORPORATION
DITECH FINANCIAL LLC
BANK OF AMERICA NATIONAL ASSOCIATION A UNITED STATES CORPORATION
DITECH FINANCIAL LLC A DELAWARE LIMITED LIABILITY COMPANY
MTGLQ INVESTORS LP A DELAWARE LIMITED PARTNERSHIP
RUSHMORE LOAN MANAGEMENT SERVICES LLC A CALIFORNIA LIMINTED LIABILITY COMPANY
VOKSHORI LAW GROUP
VOKSHORI NIMA STEPHEN
MCCARTHY & HOLTHUS LLP
COUTTS MELISSA ROBBINS
ABBOTT THOMAS NATHANIEL
BRITT STEPHEN
BIDERMAN DAVID
1/17/2020: Notice of Posting of Jury Fees
12/9/2019: Opposition - OPPOSITION SUPPLEMENTAL OPPOSITION TO DEFENDANT'S DEMURRER TO THE SECOND AMENDED COMPLAINT
12/9/2019: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO BANK OF AMERICA'S REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE
11/13/2019: Answer
11/20/2019: Declaration - DECLARATION OF THOMAS N. ABBOTT IN RESPONSE TO ORDER TO SHOW CAUSE RE SANCTIONS FOR FAILURE TO APPEAR AT CASE MANAGEMENT CONFERENCE
6/20/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)
6/6/2019: Demurrer - without Motion to Strike
4/26/2019: Proof of Service by Mail
6/12/2017: Notice - NOTICE OF OSC
4/19/2019: Case Management Statement
3/29/2019: Request for Judicial Notice
3/29/2019: Demurrer - without Motion to Strike
6/12/2017: Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued
6/12/2017: Summons
11/3/2017: Proof of Service (not Summons and Complaint)
8/8/2018: Minute Order - Minute order entered: 2018-08-08 00:00:00
1/28/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice
8/8/2018: Ex Parte Application -
Hearing02/22/2021 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Jury Trial
Hearing02/11/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status Conference
Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Case Management Conference - Held
DocketMinute Order ( (Case Management Conference)); Filed by Clerk
DocketRequest for Dismissal; Filed by DITECH FINANCIAL, LLC, a Delaware Limited Liability Company (Defendant)
DocketCase Management Statement; Filed by RUSHMORE LOAN MANAGEMENT SERVICES, LLC, a California Liminted Liability Company (Defendant); MTGLQ Investors, LP, a Delaware Limited Partnership (Defendant)
DocketCase Management Statement; Filed by ALEXANDER LU, an individual (Plaintiff)
DocketNotice of Posting of Jury Fees; Filed by ALEXANDER LU, an individual (Plaintiff)
DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk
DocketOrder (of Judgment of Dismissal); Filed by Bank of America National Association, a United States Corporation (Defendant)
DocketAnswer; Filed by Attorney for Defendant
DocketProof of Service; Filed by Attorney for Defendant
DocketSummons Filed
DocketComplaint filed-Summons Issued
DocketCivil Case Cover Sheet
DocketNotice (of OSC)
DocketNotice of Case Management Conference
DocketSummons; Filed by null
DocketNotice of Case Assignment - Unlimited Civil Case
DocketComplaint filed-Summons Issued; Filed by null
Case Number: EC066657 Hearing Date: December 12, 2019 Dept: E
DEMURRER
[CCP §430.10 et. seq.]
Case: Alexander Lu v. Rushmore Loan Management Services, LLC (EC 066657)
Defendant Bank of America, N.A.’s (“BANA”) Demurrer to Plaintiff’s Second Amended Complaint (“SAC”) is SUSTAINED WITHOUT LEAVE TO AMEND.
The Court has reluctantly considered plaintiff’s late-filed “Supplemental Opposition,” which was filed without leave of Court and after the demurrer had been fully briefed. Indeed, plaintiff made the strategic decision simply to oppose the demurrer initially on the ground that BANA’s brief was over the page limit set forth in CRC Rule 3.1113(d). Ultimately acknowledging the folly of that position one day before the initially scheduled hearing on the demurrer (see 12/5/19 Coplan Decl.), plaintiff thereafter filed the Supplemental Opposition merely three days before the instant hearing, leaving virtually no time for BANA to submit a reply. Plaintiff is hereby warned that, in the future, the Court may decline to consider filings not made in accordance with the rules and statutes that govern this litigation.
On the merits, the Court finds that the new allegations of the SAC fail to sufficiently correct the deficiencies previously noted in this Court’s August 16, 2019 minute order sustaining the demurrer to the First Amended Complaint (“FAC”), including the bar of the statute of limitations, as well as the judicial estoppel and res judicata bars flowing from plaintiff’s bankruptcy, bankruptcy proceedings and filings, and bankruptcy discharge. The SAC’s new allegations concerning a scheme pursuant to which BANA is sought to be held responsible for Rushmore’s conduct from 2016 onward (after BANA is alleged to have transferred all interest in the Note, Deed of Trust and subject property to MTGLQ Investors LP, as is expressly permitted under the DOT), are insufficient to create BANA’s vicarious responsibility for those co-defendants’ alleged wrongdoing. In this regard, it is noteworthy that the purportedly conspiratorial act in which BANA is alleged to have engaged, namely, “with[olding] the terms of the Loan Modification Agreement from MTLGQ/RUSHMORE” (SAC ¶ 37) is flatly inconsistent with conspiring with or knowingly aiding and abetting those entities to harm plaintiff.
Because plaintiff has failed in the SAC to correct the deficiencies of the FAC, despite being permitted to do so, and because plaintiff has failed in his Supplemental Opposition to meet the burden of demonstrating how the SAC could be amended to cure it of the repeated defects, the demurrer is now sustained without leave to amend.
Defendant BANA’s Request for Judicial Notice is GRANTED in part. The Court has taken judicial notice of the existence of the subject documents in the Court file, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions as enumerated in Day v. Sharp (1975) 50 Cal.App.3d 904, 914, including the effect of Court orders. The Court has considered the absence of material in the documents to the extent permissible in connection with arguments that inconsistent positions have been taken and judicial estoppel may apply.
Defendant BANA shall submit an appropriate proposed order of dismissal.