On 05/15/2017 LISA O'RRELL filed a Property - Foreclosure lawsuit against WILMINGTON SAVINGS FUND SOCIETY. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER and LAURA A. MATZ. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
RALPH C. HOFER
LAURA A. MATZ
CLEAR RECON CORP.
WILMINGTON SAVINGS FUND SOCIETY/FSB
DLI PROPERTIES LLC
CLEAR RECON SAVINGS FUNDS SOCIETY
TEST PARTY FOR TRUST CONVERSION
DLI PROPERTIES LLC
FRESHMAN RONALD HENRY
FRESHMAN RONALD H.
RONALD H. FRESHMAN LAW OFFICES OF
LANE NUSSBAUM SBN 264200
ALDRIDGE PITE LLP
SALMON PETER JOSEPH
NUSSBAUM LANE MICHAEL
8/7/2020: Notice of Change of Address or Other Contact Information
4/28/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)
5/15/2017: Notice of Case Management Conference
5/24/2017: Notice of Ruling
6/12/2017: Legacy Document - LEGACY DOCUMENT TYPE: Opposition
6/20/2017: Notice of Ruling
6/30/2017: Legacy Document - LEGACY DOCUMENT TYPE: Opposition
10/3/2017: Case Management Statement
11/3/2017: Minute Order - Minute order entered: 2017-11-03 00:00:00
2/16/2018: Memorandum of Points & Authorities
3/20/2018: Notice of Ruling
4/9/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition
9/11/2018: Legacy Document -
10/17/2017: Minute Order - Minute order entered: 2017-10-17 00:00:00
1/2/2018: Legacy Document - LEGACY DOCUMENT TYPE: Demurrer
3/9/2018: Proof of Service (not Summons and Complaint)
4/2/2018: Legacy Document - LEGACY DOCUMENT TYPE: Declaration
Docketat 09:00 AM in Department D; Trial Setting Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 09:00 AM in Department D; Hearing on Motion for Summary Judgment (or alternatively, Summary Adjudication of Issues filed on behalf of Defendants Wilmington Savings Funds Society, FSB, et al.) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment or alternatively, Summ...)); Filed by ClerkRead MoreRead Less
DocketMemorandum of Points & Authorities; Filed by WILMINGTON SAVINGS FUND SOCIETY/FSB (Defendant); CLEAR RECON CORP. (Defendant)Read MoreRead Less
DocketObjection (to the Declaration of Lisa O'Rrell in Support of Opposition to Defendant's Motion for Summary Judgment or Alternatively, Summary Adjudication of Issues); Filed by WILMINGTON SAVINGS FUND SOCIETY/FSB (Defendant); CLEAR RECON CORP. (Defendant)Read MoreRead Less
DocketObjection (Plaintiff's Objections to Declarations of Michael Bennett and Tammy Laird); Filed by LISA O'RRELL (Plaintiff)Read MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by LISA O'RRELL (Plaintiff)Read MoreRead Less
DocketOpposition (Plaintiff's Opposition to Request for Judicial Notice); Filed by LISA O'RRELL (Plaintiff)Read MoreRead Less
DocketOpposition (Plaintiff's Opposition to Separate Statement of Undisputed Facts); Filed by LISA O'RRELL (Plaintiff)Read MoreRead Less
DocketDeclaration (Declaration of Lisa O'rrell in Support of Opposition to Motion for Summary Judgment); Filed by LISA O'RRELL (Plaintiff)Read MoreRead Less
DocketExParte Application (TO SHORTEN TIME TO HEAR MOTION FOR CONSOLIDATION AND A TRO RESTRAIN- ING TO STAY THE UD UNTIL MOTION FOR CONSOLIDATION OR STAY IS HEARD ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketOrder ((TEMPORARY RESTRAINING ORDER) ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketNotice of Case Management ConferenceRead MoreRead Less
DocketNotice (of OSC)Read MoreRead Less
DocketComplaint filed-Summons IssuedRead MoreRead Less
DocketSummons FiledRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by nullRead MoreRead Less
DocketSummons; Filed by nullRead MoreRead Less
Case Number: EC066736 Hearing Date: August 21, 2020 Dept: NCD
Case Number: EC 066736 Trial date: None Set
Case Name: O’Rrell v. Wilmington Savings Fund Society, FSB, etc., et al.
MOTION FOR SUMMARY JUDGMENT
(OR, in the Alternative, Summary Adjudication)
[CCP § 437c; CRC 3.1350 et seq.]
Moving Party: Defendants Wilmington Savings Funds Society, FSB and Clear Recon Corp.
Responding Party: Plaintiff Lisa O’Rrell
Summary judgment in favor of defendants Wilmington Savings Funds Society, FSB
and Clear Recon Corp.
In the alternative, summary adjudication of the first, second and/or third causes of action.
Causes of Action from Second Amended Complaint
1) Declaratory Relief/Judgment v. All Defendants
2) Breach of Contract/Estoppel v. PMAT
3) Violation of Calif. Homeowner Bill of Rights v. PMAT, Clear Recon
4) Cancellation of Instruments v. All Defendants*
5) Wrongful Foreclosure v. All Defendants*
*Demurrer sustained without leave to amend as to PMAT on 2/23/28. JOP granted without leave to amend as to Clear Recon on 9/21/18
SUMMARY OF COMPLAINT:
Plaintiff Lisa O’Rrell alleges that defendants Wilmington Savings Fund Society (“Premium” or “PMAT”) and Clear Recon Corporation (Clear Recon) have wrongfully foreclosed on her primary residence in Studio City, which was purchased at foreclosure sale by defendant DLI Properties, LLC.
Plaintiff alleges that the original loan transaction in connection with the property with JPMorgan Chase Bank as lender, resulted in plaintiff disputing accounting amounts and unauthorized charges. Chase recognized it had overcharged plaintiff and refunded $17,000. Plaintiff again complained of accounting errors in 2016 and 2017, but Chase did not resolve the errors, but allegedly transferred the servicing problems to Rushmore Loan Servicing. Plaintiff alleges that Chase also purported to transfer interest in the deed of trust to US Bank, but did not transfer interest in the debt or note, and that the loan was then purchased by Freddie Mac, not NRZ Trust, but NRZ then purported to sell an interest in the loan and deed of trust to defendant Premium, which held no interest or rights in the debt or deed of trust. Plaintiff alleges that she was accordingly not obligated to tender payment to Premium.
The complaint alleges that Premium and its agents failed to provide notice of plaintiff’s right to bring an action in defense of plaintiff’s default or acceleration of the loan, which was a condition precedent, and that Premium failed to provide plaintiff with notice of her right to demand a copy of the note, evidence of ownership
and accounting of her debt as required under Civil Code § 2923.55(B), and also failed to contact plaintiff to discuss pre-foreclosure alternatives as required by Civil Code § 2923.5(a)(1), and that the declaration attached to the Notice of Default is false.
Plaintiff alleges that defendant DLI Properties is not a bona fide purchaser, as it had a legal responsibility to inquire of plaintiff’s interest in the property but failed to do so even though plaintiff was in possession of the property.
On May 16, 2017, the court heard an ex parte application filed on behalf of plaintiff to stay an unlawful detainer trial set in an unlawful detainer action concerning the subject property. The court issued a temporary stay pursuant to a temporary restraining order, which was to expire at midnight May 24, 2017.
On May 22, 2017, the court heard an ex parte application filed on behalf of plaintiff to deem the cases related and stay the UD until a motion for consolidation could be heard. The court found that the cases fall within the meaning of related case, and denied the request for continuance of the TRO.
On May 24, 2017, the court heard an ex parte application filed on behalf of plaintiff to continue the UD trial until a motion to consolidate was heard, which was granted, and the UD trial continued to July 3, 2017. O’Rrell, as the defendant in the UD case, was ordered to pay rent in the sum of $4,000 each month pursuant to CCP § 1170.5(c). On June 2, 2017, O’Rrell deposited the sum of $4,000 with the court.
On June 23, 2017, the court heard a motion to consolidate this action with the pending UD action, which was granted, and the cases ordered consolidated upon receipt of proof of payment of the reclassification fee by plaintiff. The fee was ordered paid within five court days. Evidently, no reclassification fee was timely paid.
On September 22, 2017, the court sustained a demurrer brought by DLI, the purchaser of the subject property at the trustee’s sale, to the First Amended Complaint without leave to amend, so that DLI is no longer a party to the unlimited civil action.
DLI, as plaintiff in the UD case, then brought a motion for summary judgment on the UD case against the two UD defendants O’Rrell and Morlan.
The UD file shows that on April 25, 2017, the default of defendant Morlan was entered.
On May 3, 2017, plaintiff DLI filed motions to have matters in Requests for Admissions served on O’Rrell and Morlan on April 24, 2017 deemed admitted. On May 15, 2017, the court granted the motions and awarded sanctions against each defendant in the sum of $500.
On April 13, 2018, the court heard DLI’s motion for summary judgment in the UD action, which was granted as to defendant O’Rrell, based primarily on the material deemed admitted.
On October 4, 2018, O’Rrell filed a notice of appeal of the UD judgment.
On November 28, 2018, this motion was filed on behalf of defendants Premium and Clear Recon.
The motion has been continued several times, including by stipulation at a hearing on a status conference regarding the appeal and the lifting of the automatic stay to hear the motion for summary judgment.
The file shows that in this matter, a Notice Designating Record on Appeal was filed on May 4, 2020. On June 11, 2020, the clerk filed an appeal appendix pursuant to CRC Rule 8.124, which document has evidently not yet been scanned.
The court of appeal docket shows that on January 24, 2020, the court of appeal filed an order deeming the appeal of the UD matter to have been filed in this unlimited case, as the matters had been consolidated, although no reclassification fee had been paid. The court of appeal ordered the superior court to collect the reclassification fee and comply with the notification duties of CRC Rule 8.100. The docket also shows that the appeal had been dismissed but on April 29, 2020, the court of appeal granted a motion to vacate the dismissal, ordered appellant to take immediate action to cure the default, such action to occur within 15 days. The court of appeal docket notes the receipt of the designation that appellant is proceeding by CRC Rules 8.121, 8.130 - no reporter’s transcript, on May 4, 2020, and that appellant’s opening brief and appendix were filed on July 10, 2020. Respondent’s brief is due August 10, 2020.
As noted above, plaintiff has appealed this court’s most recent rulings pursuant to which this court imposed issue and evidence sanctions. The motion for summary judgment relies in part on arguments that plaintiff will be unable to establish each of plaintiff’s remaining causes of action due to the court’s orders prohibiting plaintiff from introducing certain evidence necessary to support those claims.
CCP § 916 (a) provides that the perfecting of an appeal stays proceedings in the trial court, in effect, that with certain exceptions, not applicable here:
“the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”
It appears that the motion for summary judgment currently before this court would be subject to a stay.
In Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, the California Supreme Court addressed the issue of whether an appeal from the denial of a special motion to strike under the anti-SLAPP statute effects an automatic stay of the trial court proceedings. The Court concluded that the automatic stay applied to stay all further trial court proceedings on causes of action affected by the anti-SLAPP motion, and that the trial court had accordingly lacked subject matter jurisdiction during the pendency of appeal, so that a judgment for plaintiffs was void.
The Court explained the general rationale and application of CCP § 916:
“ Subject to certain exceptions not relevant here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”5 (§ 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a) “is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, 5 Cal.Rptr.2d 742 (Elsea ).)
To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or “affected” by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. “[W]hether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381, 205 Cal.Rptr. 880 (Horowitz ).) “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938, 20 Cal.Rptr.2d 841 (Betz ).)
Varian, at 189.
Here, the matter is proceeding to appeal, the outcome of which could affect a ruling the trial court would be making in connection with the motion for summary judgment in this matter, which concerns the legitimacy of the underlying unlawful detainer matter. The motion is accordingly be subject to stay, to avoid interfering with the effectiveness of the court of appeal’s rulings on the appeal. The court stays this motion for summary judgment pending the outcome of the appeal.
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Motion for Summary Judgment or Alternatively, Summary Adjudication of Issues is STAYED pending resolution of the pending appeal, 2nd Appellate District Case Number B303821.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.
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