This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 00:04:18 (UTC).

MYLENE FAROOQ VS. BANK OF AMERICA N.A., ET AL.

Case Summary

On 09/25/2017 MYLENE FAROOQ filed a Property - Foreclosure lawsuit against BANK OF AMERICA N A . This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN P. PFAHLER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8000

  • Filing Date:

    09/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN P. PFAHLER

 

Party Details

Plaintiff and Appellant

FAROOQ MYLENE

Defendants and Respondents

CLEAR RECON CORP.

GREEN TREE SERVICING LLC

DITECH FINANCIAL LLC

BANK OF AMERICA N.A.

DITECH FINANCIAL LLC FKA GREEN TREE SERVICING LLC

Attorney/Law Firm Details

Plaintiff Attorney

JT LEGAL GROUP APC

Defendant Attorneys

ALDRIDGE PITE LLP

SEVERSON & WERSON

WOLFE STUART BRUCE

 

Court Documents

Unknown

9/27/2017: Unknown

Unknown

9/27/2017: Unknown

Unknown

9/27/2017: Unknown

Minute Order

9/27/2017: Minute Order

Proof of Service (not Summons and Complaint)

10/4/2017: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

10/4/2017: Proof of Service (not Summons and Complaint)

Unknown

10/16/2017: Unknown

Unknown

10/18/2017: Unknown

Unknown

10/30/2017: Unknown

Unknown

10/31/2017: Unknown

Unknown

11/15/2017: Unknown

Minute Order

11/30/2017: Minute Order

Order on Court Fee Waiver (Superior Court)

1/2/2018: Order on Court Fee Waiver (Superior Court)

Other -

1/4/2018: Other -

Proof of Service (not Summons and Complaint)

1/10/2018: Proof of Service (not Summons and Complaint)

Unknown

2/2/2018: Unknown

Minute Order

2/7/2018: Minute Order

Unknown

2/7/2018: Unknown

126 More Documents Available

 

Docket Entries

  • 05/13/2019
  • DocketAppellate Order Dismissing Appeal (NOA:02/19/19 B295867); Filed by Clerk

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  • 05/08/2019
  • DocketClerk's Notice of Non-Compliance of Default on Appeal; Filed by Clerk

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  • 04/12/2019
  • DocketAppeal - Notice of Default Issued; Filed by Clerk

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  • 04/05/2019
  • DocketProof of Service by Mail; Filed by MYLENE FAROOQ (Plaintiff)

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  • 04/05/2019
  • DocketNtc Designating Record of Appeal APP-003/010/103 ("U"); Filed by MYLENE FAROOQ (Plaintiff)

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  • 04/05/2019
  • DocketProof of Service by Mail; Filed by MYLENE FAROOQ (Plaintiff)

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  • 03/28/2019
  • DocketAppeal - Notice of Default Issued; Filed by Clerk

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  • 03/20/2019
  • DocketAppeal - Notice of Filing of Notice of Appeal (2nd Amended); Filed by Clerk

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  • 03/15/2019
  • DocketAppeal - Notice of Filing of Notice of Appeal (Amended); Filed by Clerk

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  • 03/06/2019
  • DocketDITECH FINANCIAL LLC?S FIRST AMENDED NOTICE OF BANKRUPTCY FILING AND IMPOSITION OF AUTOMATIC STAY; Filed by DITECH FINANCIAL LLC (Defendant)

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218 More Docket Entries
  • 09/27/2017
  • DocketEx-Parte Application; Filed by Plaintiff/Petitioner

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  • 09/27/2017
  • DocketDeclaration; Filed by Plaintiff/Petitioner

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  • 09/27/2017
  • DocketMinute order entered: 2017-09-27 00:00:00; Filed by Clerk

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  • 09/27/2017
  • DocketDeclaration; Filed by Plaintiff/Petitioner

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  • 09/27/2017
  • DocketDeclaration; Filed by Plaintiff/Petitioner

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  • 09/25/2017
  • DocketNotice of case assignment; Filed by Clerk

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  • 09/25/2017
  • DocketNotice of case management conference; Filed by Clerk

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  • 09/25/2017
  • DocketCivil Case Cover Sheet; Filed by MYLENE FAROOQ (Plaintiff)

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  • 09/25/2017
  • DocketSummons; Filed by null

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  • 09/25/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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Tentative Rulings

Case Number: ****8000 Hearing Date: June 7, 2022 Dept: F49

Dept.: F-49

Date: 06/07/2022

Case No: ****8000

DEMURRERS (2)

MP: 1) Defendant, Kirk Larsen

2) Defendants, Loancare, LLC, and Federal National Mortgage Association

(“Fannie Mae”)

RP: Plaintiffs, Mylene Farooq and Ibrahim Farooq

RELIEF REQUESTED:

1. Defendant, Kirk Larsen

Demurrer to each cause of action in Second Amended Complaint

2. Defendants, Loancare, LLC and Federal National Mortgage Association (“Fannie Mae”)

Demurrer to each cause of action in Second Amended Complaint.

RULING:

1. The demurrers of Defendant, Kirk Larsen, to the first through nineteenth causes of action are sustained without leave to amend.

2. The demurrers of Defendant, Loancare, LLC, and Federal National Mortgage Association (“Fannie Mae”) to the first through nineteenth causes of action are sustained without leave to amend.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiffs allege that the Defendants are wrongfully foreclosing on her home. In their Second Amended Complaint, the Plaintiffs allege the following causes of action:

1) Fraud;

2) Breach of Contract;

3) Breach of Implied Covenant of Good Faith and Fair Dealing;

4) Unfair Competition Law

(There are no fifth or sixth causes of action)

7) Negligent Infliction of Emotional Distress;

8) Intentional and Negligent Misrepresentation

9) Misrepresentations by All Services

10) Violation of Civil Code section 2923.5

11) Violation of Civil Code section 2923

12) Violation of Civil Code section 2923.7

13) Violation of Civil Code section 2923.10

14) Violation of Civil Code section 2914.17

15) Declaratory Relief and Quiet Title

16) Negligence

17) Negligence

18) Fraud

19) Fair Credit Reporting Act (“FCRA”)

On September 27, 2017, the Plaintiff, Mylene Farooq, appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted LoanCare, LLC, leave to intervene on September 10, 2020, because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020, to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action because the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

Loan Care, LLC, filed a motion to dissolve the preliminary injunction that had been issued on November 30, 2021. On October 26, 2021, the Court granted the motion.

On February 18, 2022, the Plaintiffs filed their Second Amended Complaint. Defendants, Kirk Larsen, Loancare, LLC, and Federal National Mortgage Association (“Fannie Mae”) filed demurrers.

This June 7, 2022 hearing concerns the demurrers directed at the Second Amended Complaint. In addition, the Court has set an OSC regarding the failure to file a proof of service. Finally, since this case was commenced on September 25, 2017, the Court has set an OSC regarding the 5-year deadline to bring it to trial.

GROUNDS FOR DEMURRER:

1. Defendant, Kirk Larsen

The Plaintiff served the Second Amended Complaint on Kirk Larsen. However, he was not named as a defendant and no cause of action is directed at him. Further, none of the causes of action include facts identifying how Mr. Larsen harmed the Plaintiff.

2. Defendants, Loancare, LLC and Federal National Mortgage Association (“Fannie Mae”)

The pleadings lack sufficient facts to show that Loancare, LLC, is liable under any of the theories identified in the Second Amended Complaint.

OPPOSITION:

1. Defendant, Kirk Larsen

The Plaintiffs have facts to support all of their claims against Kirk Larsen.

2. Defendants, Loancare, LLC and Federal National Mortgage Association (“Fannie Mae”)

The Defendant’s papers include hearsay, mistakes, false statements, and unsupported conclusions. Further, the Defendant raises factual questions that cannot be resolved in a demurrer. The Defendant is seeking remedies based on false court records. In addition, the demurrer is untimely and the Defendant did not comply with the requirement to meet and confer

before filing it. The Plaintiff has pleaded sufficient facts to state each claim against the Defendant. Finally, it is an abuse of discretion not to grant leave to amend.

REPLY:

1. Defendant, Kirk Larsen

The Plaintiffs failed to show that there are any allegations in the Second Amended Complaint directed at Kirk Larsen or showing that he did anything wrongful towards the Plaintiffs. The claims are barred by the statute of limitations because he was not added to this case until the Plaintiffs filed the Second Amended Complaint.

2. Defendants, Loancare, LLC and Federal National Mortgage Association (“Fannie Mae”)

The Plaintiff’s opposition is late. Further, the Plaintiff offers no grounds to find that any of their claims state sufficient facts against Loancare, LLC.

ANALYSIS:

1. Defendant, Kirk Larsen

The Defendant, Kirk Larsen, makes a demurrer to each cause of action on the ground that the Second Amended Complaint lacks sufficient facts to state any claim against him. The following begins by addressing the lack of leave to add a new party, Kirk Larsen, to this action, and then analyzes the demurrers.

a. Plaintiff Failed to Obtain Leave to Add Kirk Larsen as a Named Defendant

A review of the Court file reveals that Kirk Larsen was not a named defendant in the Original Complaint filed on September 25, 2017, or in the First Amended Complaint filed on November 26, 2018. Further, the Court finds no motion seeking leave to add Kirk Larsen as a new party to this action.

Under CCP section 473(a), a plaintiff must obtain leave of Court to add a new party. When a plaintiff does not, CCP section 436 authorizes the Court to strike any part of a pleading, such as claims directed at a new party, that were not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Further, any pleading filed without leave of Court is subject to a motion to strike, either by the defendant or on the Court's own motion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal. App. 4th 603, 612.) The Court, by virtue of its inherent power to prevent abuse of its processes, may strike an amended complaint "filed in disregard of established procedural processes," and may strike an amended pleading "because no request for permission to amend was sought." (Id. at 613.)

Here, Plaintiff did not obtain leave to add Mr. Larsen as a named Defendant in this case. This is grounds to strike all claims directed at Kirk Larsen. Instead of striking the claims, however, the following section identifies the grounds to resolve this procedural defect, i.e., the Court will sustain the demurrers to each cause of action and not grant leave to amend because the Plaintiff must seek leave before adding a new party, the Plaintiff’s claims do not state sufficient facts, and Plaintiff’s claims are barred by the statute of limitations.

b. No Cause of Action Contains Sufficient Facts to Plead a Claim Against Kirk Larsen

In addition to not obtaining leave to add Kirk Larsen as a named Defendant, the Plaintiff did not any facts to show how Mr. Larsen is liable under any of the nineteen causes of action in her Second Amended Complaint. The only mention of Mr. Larsen is an allegation in paragraph 41 that MERS, Inc. transferred a loan to Recontrust in 2011 and that this was done through a document “by Mr. Larsen claiming to be the assistant secretary of MERS, Inc.”. There are no

allegations that Mr. Larsen had any interest in the property, in the loans, in the deeds of trust, or in any real or personal property in this action. There are no allegations identifying any conduct directed at the Plaintiff that would be wrongful or tortious.

Also, Mr. Larsen is not named in the case caption as a defendant. He is not referred to as a defendant in the sole paragraph with his name, paragraph 41. He is not included in any definition of “Defendants” in the Second Amended Complaint. No cause of action is directed at Mr. Larsen. No remedy is sought from Mr. Larsen. No allegations show any relationship or transaction between the Plaintiff and Mr. Larsen.

Finally, as discussed above in section 1, Mr. Larsen was not identified in the Original Complaint or the First Amended Complaint. Thus, the Plaintiffs first identified Mr. Larsen as liable for conduct that occurred in 2011 when they filed the Second Amended Complaint.

The straightforward rule is that amendment after the statute of limitations has run will not be permitted where the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram v. Sup. Ct. (Slinkard) (1979) 98 Cal.App.3d 483, 492.) Claims do not relate back to the filing of the original complaint unless they are based on the same general set of facts in the original complaint and seek recovery from the originally named defendants. (Barrington v. A. H. Robins Co. (1985) 39 C3d 146, 150). Since Mr. Larsen was not named in the Original Complaint, the claims in the Second Amended Complaint do not relate back to the Original Complaint. Thus, the statute of limitations has run for 11 years on the claims arising from the 2011 conduct and, as a result, any claims against Mr. Larsen for the 2011 conduct are barred.

California law imposes the burden on the Plaintiff to demonstrate the manner in which she can amend her pleadings to correct the defects identified in the demurrer. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Plaintiff did not file any opposition papers to identify any basis for granting leave to amend. Nor does it appear reasonably possible for these defects to be corrected by amendment because the Plaintiff did not obtain leave to add Mr. Larsen, there are no allegations identifying any basis for Mr. Larsen to be liable, and the statute of limitations has run any claim in the Second Amended Complaint against Mr. Larsen.

Therefore, the Court sustains the demurrer to the first through nineteenth causes of action. The Court does not grant leave to amend.

2. Defendants, Loancare, LLC and Federal National Mortgage Association (“Fannie Mae”)

The Defendants, Loancare, LLC, and Fannie Mae, make a demurrer to each cause of action on the ground that the Second Amended Complaint is uncertain and that the first and fourth causes of action lack sufficient facts to state any claim against them.

a. The Pleadings are Uncertain

The Defendants did not proceed through each cause of action and show how each cause of action is uncertain. However, as the following shows, there are grounds to find that the first, second, sixth, seventh, eighth, ninth, thirteenth, fourteenth, sixteenth, and nineteenth causes of action are uncertain due to the lack of a proper caption for these causes of action.

A demurrer for uncertainty under CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so unintelligible that the defendant cannot reasonably respond, in other words, the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

A review of the Second Amended Complaint reveals that the captions for the first, second, sixth, seventh, eighth, ninth, thirteenth, fourteenth, sixteenth, and nineteenth causes of

action do not comply with CRC rule 2.112, subdivision (4) because they do not identify the party or parties to whom each cause of action is directed, for example “against defendant Smith”. However, the Plaintiff did identify the parties against whom the third, fourth, fifth, tenth, eleventh, twelfth, fifteenth, seventeenth, and eighteenth causes of action are directed.

Further, a review of the allegations in these causes of action reveals that the defendants cannot reasonably determine whether these causes of action are directed at them. These unclear allegations coupled with the failure to comply with CRC rule 2.112, subdivision (4) make the pleadings uncertain because the defendants cannot determine what counts or claims are directed against them. They can determine whether the Plaintiffs directed the third, fourth, fifth, tenth, eleventh, twelfth, fifteenth, seventeenth, and eighteenth causes of action at them. But they cannot reasonably determine whether the remaining causes of action are directed at them. This is grounds for a demurrer based on uncertainty.

Thus, the Court sustains the demurrer to first, second, sixth, seventh, eighth, ninth, thirteenth, fourteenth, sixteenth, and nineteenth causes of action on the ground that the failure to comply with CRC rule 2.112, subdivision (4) makes them uncertain.

b. The First and Fourth Causes of Action Lack Sufficient Facts

The Defendants argue that the first cause of action for fraud in origination and the fourth cause of action for violation of the Unfair Competition Law lack sufficient facts.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The demurrer admits all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

i) First Cause of Action for Fraud in the Origination

The first cause of action is for fraud and it must include the following elements:

1) a representation, usually of fact, which is false;

2) knowledge of its falsity;

3) intent to defraud;

4) justifiable reliance upon the misrepresentation; and

5) damage resulting from that justifiable reliance

(Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.)

This is a tort of deceit and the facts constituting each element must be alleged with particularity; the claims cannot be saved by referring to the policy favoring liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Since the claims must be pleaded with particularity, the causes of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) In addition, pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.)

The first cause of action begins on page 18 of the Second Amended Complaint, at approximately line 18. The Plaintiffs’ allegations in paragraphs 110 to 121 include the following:

1) they never missed a payment;

2) multiple loans were fabricated using deeds of trust;

3) they did not obtain $276,400 from Bank of America;

4) a deed of trust was filed and recorded on June 23, 2011;

5) there was a transfer of the deed of trust;

6) the deed of trust was foreclosed upon and a 2013 DOT was “raised from the dead”;

7) there is a pattern of fraud and deception under a business commercial loan;

8) Plaintiffs refinanced with Countrywide Home Loans and Bank of America acquired Countrywide in 2007;

9) When Bank of America acquired Countrywide, it induced the Plaintiffs to enter into mortgages from 2003 to 2008 with loans with Countrywide;

10) Bank of America has a history of fraudulent misrepresentation and “continued to originate in the same manner hoping Plaintiffs will never find out”.

These allegations do not state a cause of action for fraud against Loancare, LLC, and Fannie Mae. They do not allege with particularity each element against Loancare, LLC, and Fannie Mae. For example, there are no allegations identifying the misrepresentation made by a person with authority to speak for Loancare, LLC, or Fannie Mae.

Further, the pleadings lack facts pleading a fraud claim against anyone. The pleadings are inconsistent, for example, they include allegations that the Plaintiffs did not obtain money but that they made payments on a loan. They allege there was a pattern of fraud and deception under a commercial loan, but this concerns a residential loan. And it is wholly unclear how Bank of America induced Plaintiffs to enter into loans with Countrywide from 2003 to 2008 after it acquired Countrywide in 2007.

There are no allegations that plead each element of a fraud claim, for example, there was a specific misrepresentation that the defendants knew was false, that the defendants made the specific misrepresentation with the intent to defraud, that the plaintiffs justifiably relied upon the misrepresentation, and the damages resulting to the plaintiffs from that justifiable reliance. Further, the pleadings do not comply with the requirement in CCP section 425.10, subdivision (a)(1), that a complaint contain a statement of facts constituting the cause of action in ordinary and concise language.

Therefore, the Court sustains the demurrer of Defendants, Loancare, LLC, and Fannie Mae, to the first cause of action.

Leave to amend will only be granted if plaintiffs provide sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) The Plaintiffs’ opposition offers no facts showing they can plead a claim for fraud against Loancare, LLC, or Fannie Mae. The Plaintiffs’ claims concern loans that originated before Loancare, LLC, or Fannie Mae were involved in the real property. As a result, it does not appear reasonably possible for the Plaintiffs to amend and plead a claim for fraud based on the origination of the loans.

Accordingly, the Court does not grant leave to amend.

ii) Fourth Cause of Action for Unfair Competition Law

The fourth cause of action is based on the alleged violation of Business and Professions Code section 17200. In order to plead a claim under Business and Professions Code section 17200, there must be allegations demonstrating that the Defendants engaged in an unlawful, unfair, or fraudulent business act or practice. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676-677.) This includes anything that can properly be called a business practice

and that at the same time is forbidden by law. (Id.) Since these are statutory claims, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violations. (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619.)

A review of the fourth cause of action reveals that it lacks any particularity in pleading the facts supporting the statutory elements of the violations with regards to Loancare, LLC, or Fannie Mae. There are no allegations that identify the business practice of these defendants.

Instead, Plaintiffs alleges in paragraphs 230 to 239 that Loancare, LLC, made false statements and assertions throughout its pleadings, has provided false documents to the court, and has improperly acted as a debtor buyer or collector by intervening in this action. This concerns litigation conduct, not a business practice.

The Plaintiffs then allege in paragraphs 243, 257, 276, and 289 that there are documents that disprove Loancare’s authority or standing, that there was an assignment of the deed of trust from Ditech to Loancare, that Loancare has not provided evidence “that the wire transfer has sent to Plaintiffs”, that Loancare is claiming the loan was fabricated in 2014, and that Loancare is asking the court to dissolve an injunction so it can proceed to foreclose on a falsified loan that Defendants fabricated. None of these paragraphs allege with reasonable particularity the facts showing a business practice that violated any identified law. Instead, they concern conduct in this litigation, for example, Loancare sought to dissolve the preliminary injunction.

Therefore, the Court sustains the demurrer of Defendants, Loancare, LLC, and Fannie Mae, to the fourth cause of action.

Leave to amend will only be granted if plaintiffs provide sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) The Plaintiffs’ opposition offers no facts showing they can plead a claim for unfair business practices against Loancare, LLC, or Fannie Mae. The Plaintiffs’ claims concern the litigation conduct of Loancare, LLC, and not a business practice. As a result, it does not appear reasonably possible for the Plaintiffs to amend and plead a claim for unfair business practices based on the litigation conduct.

Accordingly, the Court does not grant leave to amend.

Dept.: F-49

Date: 06/07/2022

Case No: ****8000

STATUS CONFERENCE REGARDING 5-YEAR DEADLINE

ANALYSIS:

The Court finds that this action will not be subject to the five-year deadline until March 25, 2023, due to the extension from Emergency Rule 10.

CCP section 583.310 requires actions be brought to trial within 5 years after the action is commenced against the defendant. If trial is not held within the time allowed, CCP section 583.360(a) authorizes the Court on its own motion or on motion of the defendant to dismiss the action.

Further, the California Judicial Council’s Emergency Rule 10, adopted April 6, 2020, extended the time to bring a case to trial for all civil actions filed on or before April 6, 2020 by six months. (see copy of Emergency Rule 10 below). It expressly applied this to CCP section 583.310. Although Emergency Rule 10, subd. (c), states that the rule will sunset on June 30, 2022, it also states that this does not nullify the effect of the extension of time in which to bring a civil action to trial.

Therefore, for cases filed on or before April 6, 2020, the five-year time period was extended to five years and six months.

Here, the Plaintiff commenced this action on September 25, 2017. That means the action must be brought to trial within 5 years and, since the case was filed before April 6, 2020, the five-year time period was extended by six months to March 25, 2023.



Case Number: ****8000 Hearing Date: May 5, 2022 Dept: F49

Dept.: F-49

Date: 05/05/2022

Case No: ****8000

DEMURRER

MP: Defendant, Kirk Larsen

RP: Plaintiff, Mylene Farooq

RELIEF REQUESTED:

Demurrer to each cause of action in Second Amended Complaint.

RULING:

The demurrers of Defendant, Kirk Larsen, to the first through nineteenth causes of action are sustained without leave to amend.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiffs allege that the Defendants are wrongfully foreclosing on her home. In their Second Amended Complaint, the Plaintiffs allege the following causes of action:

1) Fraud;

2) Breach of Contract;

3) Breach of Implied Covenant of Good Faith and Fair Dealing;

4) Unfair Competition Law

(There are no fifth or sixth causes of action)

7) Negligent Infliction of Emotional Distress;

8) Intentional and Negligent Misrepresentation

9) Misrepresentations by All Services

10) Violation of Civil Code section 2923.5

11) Violation of Civil Code section 2923

12) Violation of Civil Code section 2923.7

13) Violation of Civil Code section 2923.10

14) Violation of Civil Code section 2914.17

15) Declaratory Relief and Quiet Title

16) Negligence

17) Negligence

18) Fraud

19) Fair Credit Reporting Act (“FCRA”)

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted LoanCare, LLC, leave to intervene on September 10, 2020, because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020, to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action because the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

Loan Care, LLC, filed a motion to dissolve the preliminary injunction that had been issued on November 30, 2021. On October 26, 2021, the Court granted the motion.

GROUNDS FOR DEMURRER:

The Plaintiff served the summons and complaint for the Second Amended Complaint on Kirk Larsen. However, he was not named as a defendant and no cause of action is directed at him. Further, none of the causes of action include facts identifying how Mr. Larsen harmed the Plaintiff.

OPPOSITION:

The Plaintiff did not file any opposition papers.

REPLY:

The Defendant filed a reply to note that Plaintiff filed no opposition papers.

ANALYSIS:

The Defendant, Kirk Larsen, makes a demurrer to each cause of action on the ground that the Second Amended Complaint lacks sufficient facts to state any claim against him. The following begins by addressing the lack of leave to add a new party, Kirk Larsen, to this action, and then analyzes the demurrers.

1. Plaintiff Failed to Obtain Leave to Add Kirk Larsen as a Named Defendant

A review of the Court file reveals that Kirk Larsen was not a named defendant in the Original Complaint filed on September 25, 2017, or in the First Amended Complaint filed on November 26, 2018. Further, the Court finds no motion seeking leave to add Kirk Larsen as a new party to this action.

Under CCP section 473(a), a plaintiff must obtain leave of Court to add a new party. When a plaintiff does not, CCP section 436 authorizes the Court to strike any part of a pleading, such as claims directed at a new party, that were not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Further, any pleading filed without leave of Court is subject to a motion to strike, either by the defendant or on the Court's own motion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal. App. 4th 603, 612.) The Court, by virtue of its inherent power to prevent abuse of its processes, may strike an amended complaint "filed in disregard of established procedural processes," and may strike an amended pleading "because no request for permission to amend was sought." (Id. at 613.)

Here, Plaintiff did not obtain leave to add Mr. Larsen as a named Defendant in this case. This is grounds to strike all claims directed at Kirk Larsen. Instead of striking the claims, however, the following section identifies the grounds to resolve this procedural defect, i.e., the Court will sustain the demurrers to each cause of action and not grant leave to amend because the Plaintiff must seek leave before adding a new party, the Plaintiff’s claims do not state sufficient facts, and Plaintiff’s claims are barred by the statute of limitations.

2. No Cause of Action Contains Sufficient Facts to Plead a Claim Against Kirk Larsen

In addition to not obtaining leave to add Kirk Larsen as a named Defendant, the Plaintiff did not any facts to show how Mr. Larsen is liable under any of the nineteen causes of action in her Second Amended Complaint. The only mention of Mr. Larsen is an allegation in paragraph 41 that MERS, Inc. transferred a loan to Recontrust in 2011 and that this was done through a document “by Mr. Larsen claiming to be the assistant secretary of MERS, Inc.”. There are no allegations that Mr. Larsen had any interest in the property, in the loans, in the deeds of trust, or in any real or personal property in this action. There are no allegations identifying any conduct directed at the Plaintiff that would be wrongful or tortious.

Also, Mr. Larsen is not named in the case caption as a defendant. He is not referred to as a defendant in the sole paragraph with his name, paragraph 41. He is not included in any definition of “Defendants” in the Second Amended Complaint. No cause of action is directed at Mr. Larsen. No remedy is sought from Mr. Larsen. No allegations show any relationship or transaction between the Plaintiff and Mr. Larsen.

Finally, as discussed above in section 1, Mr. Larsen was not identified in the Original Complaint or the First Amended Complaint. Thus, the Plaintiff has identified Mr. Larsen as liable on conduct that occurred in 2011. The straightforward rule is that amendment after the statute of limitations has run will not be permitted where the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram v. Sup. Ct. (Slinkard) (1979) 98 Cal.App.3d 483, 492.) Claims do not relate back to the filing of the original complaint unless they are based on the same general set of facts in the original complaint and seek recovery from the original named defendants. (Barrington v. A. H. Robins Co. (1985) 39 C3d 146, 150). Since Mr. Larsen was not named in the Original Complaint, the claims in the Second Amended Complaint do not relate back to the Original Complaint. Thus, the statute of limitations has run for 11 years on the claims arising from the 2011 conduct and, as a result, any claims against Mr. Larsen for the 2011 conduct are barred.

California law imposes the burden on the Plaintiff to demonstrate the manner in which she can amend her pleadings to correct the defects identified in the demurrer. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Plaintiff did not file any opposition papers to identify any basis for granting leave to amend. Nor does it appear reasonably possible for these defects to be corrected by amendment because the Plaintiff did not obtain leave to add Mr. Larsen, there are no allegations identifying any basis for Mr. Larsen to be liable, and the statute of limitations has run any claim in the Second Amended Complaint against Mr. Larsen.

Therefore, the Court sustains the demurrer to the first through nineteenth causes of action. The Court does not grant leave to amend.

Moving defendant ordered to file a proposed judgment within 15 days from today’s date. Moving defendant to give notice.



Case Number: ****8000 Hearing Date: April 19, 2022 Dept: F49

Dept. F-49

Date: 04/19/2022

Case No: ****8000

PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

MP: Plaintiffs, Mylene Farooq and Ibrahim Farooq

RP: Plaintiff-in-Intervention, Loan Care LLC

RELIEF REQUESTED:

Preliminary injunction barring the sale of the Plaintiff’s property.

RULING:

1. Plaintiffs’ motion for a preliminary injunction is denied.

2. The temporary restraining order issued on February 23, 2022 is dissolved.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiffs allege that the Defendants are wrongfully foreclosing on her home. In their Second Amended Complaint, the Plaintiffs allege the following causes of action:

1) Fraud;

2) Breach of Contract;

3) Breach of Implied Covenant of Good Faith and Fair Dealing;

4) Unfair Competition Law

(There are no fifth or sixth causes of action)

7) Negligent Infliction of Emotional Distress;

8) Intentional and Negligent Misrepresentation

9) Misrepresentations by All Services

10) Violation of Civil Code section 2923.5

11) Violation of Civil Code section 2923

12) Violation of Civil Code section 2923.7

13) Violation of Civil Code section 2923.10

14) Violation of Civil Code section 2914.17

15) Declaratory Relief and Quiet Title

16) Negligence

17) Negligence

18) Fraud

19) FCRA

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted LoanCare, LLC, leave to intervene on September 10, 2020 because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action based on the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

Loan Care, LLC, filed a motion to dissolve the preliminary injunction that had been issued on November 30, 2021. On October 26, 2021, the Court granted the motion.

On February 23, 2022, Plaintiff filed an ex parte application for a preliminary injunction. The Court issued a temporary restraining order that enjoined the sale of the property and set an OSC regarding a preliminary injunction for April 7, 2022. Further, the Court ordered the Plaintiff, as a condition of the temporary restraining order, to pay $2,000 to Ditech on or before March 15, 2022. In addition, within fifteen calendar days of the February 23, 2022 minute order, the Court ordered the Plaintiff to serve all of the named defendants in the Second Amended Complaint with the Second Amended Complaint, a copy of the February 23, 2022 Minute Order, the Plaintiff’s ex parte application and exhibits, the summons, and the complaint.

The Court ordered that the failure to serve all of these documents as well as the failure to make the $2,000 payment to Ditech be grounds to deny, quash, vacate, and recall the TRO.

The Court then continued the hearing on the preliminary injunction to April 19, 2022.

ANALYSIS:

This hearing concerns the Plaintiffs’ application for a preliminary injunction to enjoin the sale of her personal property.

1. Plaintiff’s Failure to Comply with February 23, 2022 Order

First, the Court ordered the Plaintiffs to pay $2,000 to Ditech by March 25, 2022, and to serve all documents in support of her application within fifteen days of the February 23, 2022 order. The Plaintiff failed to provide any evidence that she complied with this requirement. In the February 23, 2022, order, the Court stated that the failure to comply with this requirement might be grounds for denying her motion.

The Plaintiff has repeatedly failed to make monthly payments for the property, as ordered by the Court. When the Court issued a prior preliminary injunction on November 30, 2017, the Court ordered the Plaintiff to make ongoing monthly payments of $2,000 in order to satisfy the requirement for an undertaking under CCP section 529. The Plaintiff never made these payments.

The opposition papers state that the Plaintiff has not made the payment and has not served the papers.

The Plaintiff’s failure to provide competent, credible evidence that she made the $2,000 payment or complied with the Court’s February 23, 2022 order is the first ground to deny the motion.

2. Plaintiff’s Failure to Show Grounds for Preliminary Injunction

Second, the Plaintiff seeks an injunction barring the Defendants from selling or encumbering her real property.

a. Legal Authority for Preliminary Injunction

CCP section 527(a) requires a motion for a preliminary injunction to establish with facts in affidavits or in a verified complaint that there are grounds to issue a preliminary injunction. Declarations may be used under CCP section 2015.5 because they are equivalent to an affidavit.

Under CCP section 526(a), a preliminary injunction may be issued in the following cases:

1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

4) When pecuniary compensation would not afford adequate relief.

5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

7) Where the obligation arises from a trust.

The Plaintiff has the burden of establishing grounds exist for the injunction with evidence offered under oath. (Ancora-Citronelle Corp. v. Green (1974) 41 Cal. App. 3d 146, 148.) The granting or denial of a preliminary injunction rests in the sound discretion of the Court and is based upon a consideration of all the particular circumstances of each individual case. (Froomer v. Drollinger (1960) 183 Cal. App. 2d 787, 788-789.) If granted, the preliminary injunction does nothing more than to preserve the status quo until the merits of plaintiffs' claim can be adjudicated. (Id.)

The decision to grant or deny a preliminary injunction is committed to the discretion of the trial court after the Court determines:

1) the likelihood that the plaintiff will prevail on the merits at trial, and

2) the harm to the plaintiff of denying the injunction relative to the harm to the defendant of granting the injunction.

(Pleasant Hill Bayshore Disposal v. Chip-It Recycling (2001) 91 Cal. App. 4th 678, 695.)

b. Application to Plaintiffs’ Motion

The Plaintiffs must first show that they are entitled to the relief requested. The Plaintiffs fail to do so. The Plaintiffs fail to identify or prove any circumstances in CCP section 526 for the requested injunction.

A review of the Plaintiffs’ arguments in their papers reveals no ground to issue the requested preliminary injunction. Plaintiffs argue Ditech has not standing to foreclose on her property. This does not identify grounds for a preliminary injunction because the Ditech does not require “standing” to exercise its contractual right to foreclose on her property to recover the unpaid loan amounts. Also, as discussed below, Loan Care LLC, is the party seeking to sell the property to recover the amounts that the Plaintiff owes on the loan.

Plaintiffs also argue Ditech has no “beneficial interest” and is engaged in an illegal foreclosure. Plaintiffs fail to provide competent evidence to support this theory. Plaintiffs argue that this case is an example of unfair business practices. Plaintiffs offer speculation and no competent evidence of any unfair business practice by Ditch that would be grounds to issue a preliminary injunction.

Further, Plaintiffs fail to show any evidence regarding Loan Care, LLC, which intervened in this action in 2020 because it has the beneficial interest in this property. Instead, Plaintiff, Mylene Farooq, offers speculation regarding a number of companies, including Bank of America, Countrywide Home Loans, Green Tree Servicing, Clear Recon Corp., Aldridge Pite, LLP, MERS, JP Morgan Chase, Chase Home Financial LLC, NEWREZ LLC, Fannie Mae, Lawyers Title, Landsafe Title of California, Stewart Title of California, Aurora Loan Services, Black Night, and Capital One.. There is no credible evidence showing any grounds to issue any preliminary injunction against any of these entities or any other entity regarding the real property at issue.

Further, Plaintiffs provide no competent evidence showing that there are grounds to issue a preliminary injunction under CCP section 527 to halt the sale of the real property to collect the amounts she has not paid on the loan. As discussed below, the evidence shows that the Plaintiffs have been in default since 2015. The Plaintiffs offer no grounds to find that the Defendants cannot exercise their right to sell the real property to recover the amounts due and owing on the loan.

The Plaintiffs’ papers state they are based on the declaration of Mylene Farooq and Ibrahim Farooq. There are no credible, competent facts in these declarations that demonstrate whether or not the Defendants are wrongfully foreclosing on the property such that a preliminary injunction should be issued to maintain the status quo. On the contrary, as the Court has found at prior hearings, the Plaintiffs have failed to make the $2,000 monthly payments needed to reside on the property since 2017.

Further, the Plaintiffs request that the Court take judicial notice of numerous filings in this case, including the Second Amended Complaint, Loan Care’s Complaint-in-Intervention, the property description of her property, opposition papers, documents accompanying opposition papers, Court rulings, numerous documents recorded on the property, tentative rulings from prior hearings, a bankruptcy status report, a computer summary of the Court docket, notice that no hearing was held on May 13, 2020, and a court ruling denying a motion from July 25, 2018. The Plaintiffs do not use these numerous documents to show any grounds exist to issue a preliminary injunction.

In the opposition, Loan Care LLC, provides facts in the declaration of Darcie Lyle, who has access to the documents pertaining to the loan agreement with the Plaintiffs. Ms. Lyle states in paragraph 6 that the Plaintiff obtained a loan and recorded a deed of trust on the real property to secure the loan. Ms. Lyle states in paragraph 9 that the Plaintiff failed to make payments in 2015 and was then denied a request for a loan modification because she failed to make trial payments. Ms. Lyle states in paragraphs 12 to 15 that a notice of default was recorded, that Plaintiff did not tender the amounts due to restate her loan, and that a notice of trustee sale was recorded.

Ms. Lyle states in paragraph 16 that Loan Care LLC began servicing the loan and provided notice to the Plaintiff and that she began communicating with Loan Care to request loss mitigation assistance. Ms. Lyle states in paragraph 20 that due to the Plaintiff’s failure to reinstate the loan or cure the default, a notice of trustee sale was recorded on January 19, 2022. Ms. Lyle states in paragraph 25 that Loan Care LLC has paid the property taxes and insurance on the real property.

In paragraph 22, Ms. Lyle states that the loan remains in default and Plaintiff has made no credible offer to tender the amounts needed to reinstate the loan. Ms. Lyle states in paragraph 23 that the total amount owed on the loan is $448,148.11, as of March 22, 2022.

This evidence in the opposition papers demonstrate that Loan Care LLC is exercising the right to sell the real property in order to recover the $448,148.11 due on the loan caused by the Plaintiffs failure to make payments on the loan since 2015. As discussed above, the Plaintiffs offer no evidence to show a probability of succeeding on any legal theory such that a preliminary injunction should be issued to maintain the status quo pending the trial. The Plaintiffs offer no evidence that they paid the amounts due. The Plaintiffs offer no evidence that they have ever complied with the Court’s order that required them to pay $2,000 per month in order to maintain the preliminary injunction issued in 2017. The Plaintiffs offer no evidence that Loan Care, LLC, has no right to exercise the right to sell to recover the amounts that the Plaintiffs owe. The Plaintiffs offer no evidence that any grounds exist to issue the requested preliminary injunction. This is the second ground to deny the motion.

Therefore, the Court denies the Plaintiffs’ application for a preliminary injunction and dissolves the temporary restraining order issued on February 23, 2022.



Case Number: ****8000 Hearing Date: January 13, 2022 Dept: F49

Dept. F-49

Date: 01/13/2022

Case No: ****8000

PLAINTIFF’S MOTION FOR RECONSIDERATION

MP: Plaintiff, Mylene Farooq

RP: Plaintiff-in-Intervention, Loan Care LLC

RELIEF REQUESTED:

Reconsideration of the October 26, 2021 Order that dissolved the preliminary injunction barring the sale of the Plaintiff’s property. The preliminary injunction had been issued on November 30, 2017.

RULINGS:

1. Deny motion for reconsideration.

2. Since Mylene Farooq drafted and filed this document, order opposing counsel to give notice to Mylene Farooq’s attorney of record, Evane Abassi, of this proceeding, and that Evane Abassi and any other attorney representing Plaintiff must accompany every motion, opposition paper, or reply with a declaration signed under penalty of perjury showing that the attorney had drafted and efiled the document.

3. Impose monetary sanctions of $1,000 on Mylene Farooq, payable within 10 days, for the violation of CCP section 1008.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiff alleges that the Defendants are wrongfully foreclosing on her home. In the caption to her First Amended Complaint, the Plaintiff did not list a first through fourth causes of action. Instead, she identifies the causes of action as 5, 6, 7, 8, and 9. These causes of action include the following:

5) Breach of Contract;

6) Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Negligence;

8) Negligent Infliction of Emotional Distress; and

9) Violation of Business and Professions Code section 17200.

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted LoanCare, LLC, leave to intervene on September 10, 2020 because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action based the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

Loan Care, LLC, filed a motion to dissolve the preliminary injunction that had been issued on November 30, 20271. On October 26, 2021, the Court granted the motion. This is the order that the Plaintiff requests the Court to reconsider.

ANALYSIS:

This hearing concerns the Plaintiff’s motion for reconsideration. The Plaintiff argues that LoanCare LLC made false representations in its motion to dissolve the preliminary injunction. The Plaintiff’s motion is not supported by any declarations, documents, or other evidence. The following analyzes the Plaintiff’s motion, analyzes the documents and finds that the Plaintiff improperly used her attorney’s name to file the pending motion, and then imposes monetary sanctions on the Plaintiff for her violation of CCP section 1008.

1. Plaintiff’s Motion for Reconsideration is Denied

Under CCP section 1008(a), when a motion has been denied in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may make an application to the same judge that made the order to seek reconsideration of the motion and an order modifying, amending, or revoking the prior order. The application for reconsideration must be made within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law.

CCP section 1008(a) requires the party making the application to state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court's jurisdiction with regard to applications to renew and that no application to renew any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court's power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.)

A review of the Plaintiff’s motion reveals that it does not include a declaration identifying new facts, circumstances, or law. Since the Plaintiff has not complied with CCP section 1008, the Court lacks jurisdiction to consider her requested relief.

Further, the Plaintiff provides no basis to reconsider the October 26, 2021 order. At that hearing, the Court found that it was in the ends of justice under CCP section 533 to dissolve the preliminary injunction because the Plaintiff had, contrary to the Court’s intent, been residing at the subject property without payment of any money.

When the Court issued the preliminary injunction on November 30, 2017, the Court found that the Plaintiff had demonstrated a likelihood of prevailing on the merits of some of her claims and that she would suffer great injury if her residence is sold. In order to satisfy the requirement for an undertaking under CCP section 529, the Court ordered the Plaintiff to make ongoing monthly payments of $2,000.

This payment of money by the Plaintiff was mandatory for the validity of the preliminary injunction. The language in CCP section 529 makes the undertaking a mandatory prerequisite for the issuance of a preliminary injunction. (ABBA Rubber Co. v. Seaquist (1991) 235 Cal. App. 3d 1, 10 [finding that bond is an "indispensable prerequisite to the issuance of a preliminary injunction" and the duty to order a bond is "mandatory, not discretionary."]) In addition, an injunction is void without an undertaking. (Federal Automotive Services v. Lane Buick Co. (1962) 204 Cal. App. 2d 689, 695 [holding injunction inoperative and of no effect because the order did not require a bond.])

LoanCare, LLC, provided evidence that the Plaintiff has not paid the monthly payments of $2,000, as required by the Court’s November 30, 2017 order. In her opposition to the motion to dissolve, the Plaintiff provided no evidence she had made any payments.

In the Plaintiff’s pending motion for reconsideration, the Plaintiff argues that LoanCare, LLC, made false statements in its motion. The Plaintiff identifies none. And again, the Plaintiff offers no evidence that she made any payments.

Accordingly, the Plaintiff has not offered any new facts, circumstances, or law that would be grounds to reconsider the October 26, 2021 order that dissolve the preliminary injunction. The Plaintiff did not make the monthly payments ordered by the Court and required under CCP section 529 to enforce the preliminary injunction.

Therefore, the Court denies the Plaintiff’s motion for reconsideration of the October 26, 2021 order.

2. Mylene Farooq, not Evane Abassi, Drafted and Filed the Pending Motion

CCP section 128 provides the Court with the inherent power “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every manner pertaining thereto. Further, CCP section 284 provides that a party may change her attorney at any time. Its companion provision, CCP section 285, states: “When an attorney is changed, as provided in [section 284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.

The purpose of these statutes is to have the record of representation clear so the parties may be certain with whom they are authorized to deal. (People v. Metrim Corp. (1960) 187 Cal.App.2d 289, 294.) Litigants are not required to investigate the relationship between opposing attorneys of record and their clients. They and the courts have every right to rely on court records as binding on both litigants and the attorneys appearing of record on their behalf. (People ex rel. Dept. Pub. Wks. v. Hook (1967) 248 Cal.App.2d 618, 624.)

Further, these statutes and principles identify a strong judicial interest in regulating who appears as attorney of record. As a practical matter, it is one of the ways the court has for retaining effective control of the case. The following shows that there are grounds to find that Mylene Farooq drafted and filed the pending motion. It is necessary to make orders based on this finding to ensure the Court has effective control of the case and to ensure that the opposing counsel knows with whom they are authorized to communicate.

First, the Court notes that the Plaintiff’s motion contains a signature by an attorney, Evane Abassi. However, the first page does not include all the required information for the attorney. A review of the Court file reveals that the Plaintiff filed a Notice of Substitution on September 29, 2021 to show that Evane Abassi was her new legal representation.

Under CRC rule 2.111, subdivision (1), the first page of each motion must include, in the top left of the page, the name, office address, telephone number, fax number, e-mail address, and State Bar membership number of the attorney for the party in whose behalf the paper is presented. The first page of the Plaintiff’s motion for reconsideration does not identify the name and State Bar membership number of the attorney, Evane Abassi. Although this might be an inadvertent mistake, this failure to include the name of the attorney and the State Bar membership number motion is the first of several other facts from which is it reasonable to draw an inference that an attorney did not draft the document.

The next basis is the format of the motion. It is the same format used by the Plaintiff when she was self-represented. For example, in her prior filings, such as the motion for reconsideration filed on May 14, 2021, the Plaintiff, as a self-represented litigant, used the following formatting conventions:

1) she indicated the page number in the center-left column of each page with the number in font substantially larger than used in the body of the document; and

2) in the caption on the right-hand column of the first page, she identifies the trial date as “NON-SET” (sic).

A review of the pending motion for reconsideration filed on November 12, 2021 reveals that it also has the page number in the center-left column with the number in large font. Further, it also identifies the trial date with the same, incorrectly spelled word “none” as in “NON-SET”. This is grounds to find that Mylene Farooq drafted the pending document because she used the format she used in her prior filings.

In addition, the motion includes arguments and requests that have been offered by the Mylene Farooq in previous documents that are utterly unsupported by evidence. For example, in the motion for reconsideration filed on May 14, 2021 by the Plaintiff, as a self-represented litigant, she requested that the Court order the Defendants to stop interfering with her computer. The motion filed on November 12, 2021 and signed by Evane Abassi includes the same request for the Defendants to stop interfering with the Plaintiff’s computer. Neither motion offers any evidence to show that the Defendants are interfering with the Plaintiff’s computer.

Another example is the Plaintiff’s argument that LoanCare, LLC, made fraudulent statements in its Complaint-in-Intervention. The Plaintiff made this in the motion for reconsideration she filed on May 14, 2021, when she was self-represented, and in the pending motion filed on November 12, 2021 and signed by Evane Abassi. Neither motion offers any evidence to show that LoanCare, LLC, made fraudulent statements in its Complaint-in-Intervention. The deployment of unsupported claims of fraud in the Complaint-in-Intervention and interference with computers in the pending motion is an additional ground to find that Mylene Farooq drafted the pending document.

Finally, a review of the CRS data on eCourt for the pending motion filed on November 12, 2021 reveals that the email of the person who filed the motion signed by Evane Abassi is:

mylene625crt@gmail.com

This is not the email address of Evane Abassi. The pending motion identifies the email address in the caption of the motion as:

evanabbassi@aol.com

However, this is not the correct email for Evane Abassi. A review of the State Bar website reveals that the correct email address for Evane Abassi, who is identified as “Evan Abassi” on the State Bar records, includes an “e” between “evan” and abassi@aol.com. Thus, the correct email is:

evaneabbasi@aol.com

This attorney email address was not the email address used to file the pending motion. Instead, the address mylene625crt@gmail.com is the same as motions filed by the Plaintiff when she was self-represented. Thus, a review of the CRS data on eCourt shows that, even though the Plaintiff has substituted in Evane Abassi as her attorney and this attorney has a separate email address, the pending motion was efiled by a person using Mylene Farooq’s email address.

This review of the documents previously submitted by the Plaintiff when she was self-represented and after she had filed a notice of substitution for Evane Abassi reveals they include 1) similarities in formatting, 2) similar unsupported arguments about opposing counsel and the opposing party, and 3) the same email address used by Mylene Farooq when she was self-represented. It is reasonable to draw an inference from these facts that Mylene Farooq, not Evane Abassi, drafted and efiled this document. Accordingly, the Court issues the following to remedy this improper conduct.

First, it is not clear that Evane Abassi is aware that Mylene Farooq is filing documents under Evane Abassi’s name. If Evane Abassi was aware that Mylene Farooq was preparing and filing documents, then Evane Abassi could be subject to disciplinary proceedings by the California State Bar. Attorneys must conform to professional standards in whatever capacity they are acting in a particular matter and can be disciplined for knowingly allowing the illegal practice of law in the attorney’s name. (Crawford v. State Bar of Cal. (1960) 54 Cal.2d 659, 668 [determining whether to annul the public reproval of an attorney who allowed a disbarred attorney to practice law in the attorney’s firm.]) Accordingly, the Court directs the opposing party to give notice to Evane Abassi of this proceeding so that Evane Abassi may determine the way to proceed as the attorney of record for Mylene Farooq.

Second, California courts have the authority to fashion procedures and remedies as necessary to protect litigants' rights. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 762). For example, when a plaintiff's deliberate and egregious misconduct in the course of the litigation renders any sanction short of dismissal inadequate to protect the fairness of the trial, California courts necessarily have the power to preserve their integrity by dismissing the action. (Id.) The essential requirement is to calibrate the sanction to the wrong.

Here, the wrong is that Mylene Farooq has drafted and filed a document under the name of her attorney. As a result, the Court will not review the merits of any motion filed on behalf of the Plaintiff unless it is accompanied by a declaration from the Plaintiff’s attorney in which the attorney expressly states, under penalty of perjury, that the attorney formatted, drafted, and efiled the motion. Further, the Plaintiff’s attorney must accompany any opposition and reply papers with a declaration expressly stating under penalty of perjury that the attorney formatted, drafted, and efiled the document. This will ensure that the Court and the opposing parties have greater knowledge of the identity of the person advancing the legal arguments and who is prepared to discuss them in private communications or at formal hearings. This will apply to any future attorney who is substituted in the case.

If the Plaintiff becomes self-represented, then this will not be required.

3. Sanctions are Necessary Due to the Plaintiff’s Failure to Comply with CCP section 1008

CCP section 1008(d) authorizes the Court to punish a party with sanctions when the party violates CCP section 1008. Here, the Court finds that Mylene Farooq has violated CCP section 1008 by filing a motion that lacks any evidence of a new fact, circumstance, or law.

This is not the first time that the Plaintiff, Mylene Farooq, has disregarded court orders or rules of civil procedure. The Plaintiff has repeatedly filed motions for reconsideration without complying with CCP section 1008, which, as discussed above, identifies the Court’s exclusive jurisdiction to reconsider prior orders. Since the Plaintiff continues to file improper motions for relief under CCP section 1008, the Court finds that monetary sanctions are necessary.

The Court finds that $500 is the proper amount of sanctions because this is less than the amount of attorney’s fees that a reasonable attorney would bill to oppose this motion. This is based on the Court’s knowledge that a reasonable attorney would bill at least four hours at $250 per hour to draft the opposition and appear for the hearing.

Accordingly, the Court orders Mylene Farooq to pay $500 to LoanCare, LLC, within 10 days.

Further, if the Plaintiff does not comply with this order and she fails to pay the full $500 within 10 days, then LoanCare, LLC, may enforce this sanction order as an independent monetary judgment. In addition, the Court will impose additional sanctions under CCP section 177.5 for the Plaintiff’s failure to comply with this order. (See 20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1278 [affirming a trial court order imposing sanctions under CCP section 177.5 on a party that failed to pay a sanctions order as a penalty for ignoring lawful orders of the court].)

Loan Care to give notice.



b'

Case Number: ****8000 Hearing Date: October 26, 2021 Dept: F49

Dept. F-49

Date: 10/26/2021

Case No: ****8000

PLAINTIFF’S MOTION FOR RECONSIDERATION

DEFENDANT’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION

RELIEF REQUESTED:

1. Plaintiff, Mylene Farooq

Motion for Reconsideration and the Following Orders (filed on June 21, 2021)

a) reconsidering the order denying Plaintiff’s motion to dismiss complaint-in-intervention

b) Strike errors of fact in claims and procedural background

c) Enforce injunction granted on 11/30/2017

d) enforcing minute orders allowing Plaintiff to amend her complaint

e) Strike demurrer on 7th and 8th causes of action because they cannot be subject to demurrer.

2. Defendant-in-Intervention, Loan Care, LLC

Order dissolving temporary restraining orders and preliminary injunction

RULINGS:

1. Plaintiff, Mylene Farooq

Deny motion for reconsideration and other orders in its entirety.

2. Defendant-in-Intervention, Loan Care, LLC

Grant motion and dissolve the preliminary injunction issued on November 30, 2017 barring the sale of the Plaintiff’s property.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiff alleges that the Defendants are wrongfully foreclosing on her home. In the caption to her First Amended Complaint, the Plaintiff did not list a first through fourth causes of action. Instead, she identifies the causes of action as 5, 6, 7, 8, and 9. These causes of action include the following:

5) Breach of Contract;

6) Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Negligence;

8) Negligent Infliction of Emotional Distress; and

9) Violation of Business and Professions Code section 17200.

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted the LoanCare, LLC, leave to intervene on September 10, 2020 because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action based the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

ANALYSIS:

This hearing concerns the following two motions:

1) Plaintiff’s motion for reconsideration and various other orders; and

2) Defendant’s motion to dissolve the temporary restraining orders and preliminary injunction.

1. Plaintiff’s Motion for Reconsideration and Other Motions

The Plaintiff’s motion is identified as a motion for reconsideration of the order denying her motion to dismiss the Complaint-in-Intervention. However, the Plaintiff asks for several other forms of relief so her motion is seeking the following:

a) reconsideration of the June 10, 2021 order denying her motion to dismiss;

b) an order striking the facts in the Court’s summary of the claims and background in the Court’s rulings;

c) an order enforcing the injunction issued on November 30, 2017;

d) an order enforcing a minute order allowing Plaintiff to amend her complaint; and

e) an order striking a demurrer to the 7th and 8th causes of action in her Complaint on the ground they are not subject to demurrer.

a. The June 10, 2021 Order at Issue

On June 10, 2021, the Court heard the Plaintiff’s motion to dismiss in which she argued that the Court lacked subject matter jurisdiction over the Complaint in Intervention. This motion was denied because the Plaintiff identified no authority in her motion that offered any basis to find the Court lacked subject matter jurisdiction over the claims in Loancare LLC’s Complaint-In-Intervention. In her papers, the Plaintiff argued that she filed her lawsuit for mortgage fraud and identity theft, she had ineffective assistance of counsel and collusion, people think procedures are fair, intervention is a joinder of parties, the court “did not have both parties subject Matter Jurisdiction (sic) therefore LONECARE must dismiss its claims”, and the court must balance the quests of its fairness in its application. There were additional arguments about the doctrine of res judicata, untimeliness of the intervention, statute of limitations, a falsified deed of trust, a forged grant deed, the deletion of data on her computer, the Court erred by granting judicial notice of documents, the defendants wrongfully initiated foreclosure actions, and there is no valid chain of title. A review of the arguments revealed no cogent or persuasive grounds to find that the Court lacked subject matter jurisdiction over a claim for declaratory relief concerning real property in California.

The Court’s "subject matter jurisdiction" refers to the court\'s power to hear and resolve a particular dispute or cause of action. (Conservatorship of O\'Connor (1996) 48 Cal.App.4th 1076, 1087.) The California Constitution confers broad subject matter jurisdiction on the superior court. (Cal. Const., art. VI, ; 10.) Each superior court has general subject matter jurisdiction, meaning that it can adjudicate any and all cases brought before it, with some exceptions for courts of limited jurisdiction. (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 556.)

The Complaint-in-Intervention seeks declaratory relief regarding the rights and duties of the parties with regards to the real property at 18503 Olympian Court, Santa Clarita, California 91351. Since this is a claim about real property located within the state of California, the Superior Court has subject matter jurisdiction over the claim.

As a result, the Court denied the Plaintiff’s motion to dismiss.

b. Plaintiff’s Pending Motion for Reconsideration Should be Denied

The Plaintiff requests that the Court reconsider this June 10, 2021 order. Under CCP section 1008(a), when a motion has been denied in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may make an application to the same judge that made the order to seek reconsideration of the motion and an order modifying, amending, or revoking the prior order. The application for reconsideration must be made within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law.

CCP section 1008(a) requires the party making the application to state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court\'s jurisdiction with regard to applications to renew and that no application to renew any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court\'s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.)

A review of the Plaintiff’s motion reveals that it does not include a declaration identifying new facts, circumstances, or law. Since the Plaintiff has not complied with CCP section 1008, the Court lacks jurisdiction to consider her requested relief.

Further, the Plaintiff’s motion identifies no grounds to reconsider the prior order. Her memorandum includes a number of arguments that do not concern subject matter jurisdiction, for example, arguments about attorneys, schemes to defraud the Court and plaintiff, and that “Court online services play a party on LOANCARE and Ditech’s Fraud on the Court”. At one point, the Plaintiff argues that ECOURT manipulates the Docket and filed documents and she states:

ECOURT must stop interfering with Plaintiff’s filed documents, deletion

of dockets, and preparing Ruling automatically generated through the

Court’s computer system.

Many of these arguments are repeated from prior papers. None has any relevance to subject matter jurisdiction over Loancare LLC’s request for declaratory relief concerning real property located in California. Moreover, there is no evidence whatsoever that eCourt, a case management system, has developed an AI (“Artificial Intelligence”) with the ability or desire to thwart the Plaintiff’s claims.

Therefore, the Court denies the Plaintiff’s motion for reconsideration because she failed to comply with CCP section 1008 and, as a result, the Court lacks jurisdiction to hear a motion for reconsideration that fails to comply with CCP section 1008.

The Plaintiff also made various other requests, such as an order striking errors in summaries of the background for the case, to enforce orders, such as the preliminary injunction, and to strike demurrers to the seventh and eighth causes of action. The Plaintiff cites no authority or grounds for these orders. Further, the Plaintiff offers no facts showing good cause for these orders. The Court denies these additional requests for relief because there is no authority or good cause shown for any of them.

California law holds that a self-represented litigant “is entitled to the same, but no greater, consideration than other litigants and attorneys,” and that the self-represented litigant “is restricted to the same rules of procedure as is required of those qualified to practice before our courts.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055–1056.) “A litigant has a right to act as his own attorney but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” (Id. at p. 1055.) “Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 979.)

This is not the first time that the Plaintiff, Mylene Lopez-Farooq, has disregarded court orders or rules of civil procedure. As the Court noted in its ruling regarding the April 20, 2021 hearing, the Plaintiff ignored a bankruptcy order and did not seek the proper remedies to contest the order, if she believed she has valid grounds to challenge it. Also, the Plaintiff has repeatedly filed motions for reconsideration without complying with CCP section 1008, which, as discussed above, identifies the Court’s exclusive jurisdiction to reconsider prior orders. As noted above, California law does not “cast a sympathetic eye on the unprepared” and the Court will continue to require the Plaintiff to comply with the rules of procedure and will continue to deny the Plaintiff’s improper requests for relief.

2. Defendant-in-Intervention’s Motion to Dissolve the Temporary Restraining Orders and the Preliminary Injunction

The Defendant-in-Intervention, Loan Care, LLC, requests that the Court dissolve the following orders:

a) the temporary restraining orders issued on September 27, 2017 and November 20, 2019; and

b) the preliminary injunction issued on November 30, 2017.

The Defendant argues that the Plaintiff has never paid the amounts she must pay on the loan.

Under CCP section 533, the Court is authorized in any action to modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.

Accordingly, section 533 identifies three independent bases for modifying or dissolving a restraining order:

1) change in the facts;

2) change in the law, or

3) ends of justice.

On November 30, 2017, the Court heard the Plaintiff’s motion for a preliminary injunction to prevent the sale of her property at 18503 Olympian Court, Santa Clarita, California 91351, until the resolution of this case. In the November 30, 2017 minute order, the Court stated:

In sum, the Court concludes that MP has met her burden to demonstrate a likelihood

of prevailing on the merits of some of her claims. In addition, MP will suffer

great injury if her residence is sold. MP’s motion for preliminary injunction is granted. Per the undertaking requirement and per CCP 529(a)‚ MP is ordered to make ongoing monthly payments of $2,000.

This November 30, 2017 order issuing the preliminary injunction terminated the temporary restraining order issued on September 27, 2017. (See International Union of Operating Engineers v. Superior Court (1989) 207 Cal.App.3d 340, 355 [“A TRO is purely transitory in nature and terminates automatically when a preliminary injunction is issued or denied.”])

On November 20, 2019, the Plaintiff appeared with an ex parte for a temporary restraining order to prevent the sale of her property. The Court granted the application and issued the temporary restraining order but stated:

Plaintiff’s ex parte application is granted, for good cause, shown, on the condition

that plaintiff pays and continues to pay the monthly mortgage to the loan provider.

The plaintiff may not reside at the subject property payment free.

The Court set the hearing on the OSC regarding a preliminary injunction for March 2, 2020. The matter was continued to March 13, 2020. At that hearing, the Court denied the Plaintiff’s request for a preliminary injunction. Under the above authority from International Union, this March 13, 2020 order denying the preliminary injunction automatically terminated the November 20, 2019 temporary restraining order.

As a result, the only operative order for which the Court may grant relief in the Defendant-in-Intervention’s papers is the November 30, 2017 order issuing the preliminary injunction. The temporary restraining orders were terminated by the November 30, 2017 and May 13, 2020 orders.

As noted above, when it issued the preliminary injunction on November 30, 2017, the Court required that the Plaintiff pay the $2,000 monthly payments as the undertaking under CCP section 529. This payment of money by the Plaintiff was mandatory for the validity of the preliminary injunction. The language in CCP section 529 makes the undertaking mandatory. (ABBA Rubber Co. v. Seaquist (1991) 235 Cal. App. 3d 1, 10 [finding that bond is an "indispensable prerequisite to the issuance of a preliminary injunction" and the duty to order a bond is "mandatory, not discretionary."]) In addition, an injunction is void without an undertaking. (Federal Automotive Services v. Lane Buick Co. (1962) 204 Cal. App. 2d 689, 695 [holding injunction inoperative and of no effect because the order did not require a bond.])

Accordingly, evidence that the Plaintiff has not paid the monthly payments of $2,000, as required by the Court’s November 30, 2017 order would show a change in the facts that would be grounds to dissolve the preliminary injunction under CCP section 533. Further, it is evidence that it is in the ends of justice to dissolve the preliminary injunction because the requirement to pay the monthly amount was mandatory and the failure to pay the money would make the injunction inoperative and of no effect.

The Defendant-in-Intervention provides evidence in the declaration of Darcie Lyle, an assistant secretary employed by Loan Care LLC. Ms. Lyle states in paragraphs 5 and 6 that she has reviewed the loan file for the loan relating to the Plaintiff’s property. In paragraph 8, Ms. Lyle states that the Plaintiff has not made any payment since September 2015. In paragraph 16, Ms. Lyle states that Loan Care continues to pay the real property taxes and insurance on the property.

In her opposition, the Plaintiff fails to offer any evidence that she made the $2,000 monthly payments ordered by the Court. The Plaintiff raises arguments about the tender rule, about misrepresentations in the papers, about the request for judicial notice, about Loan Care’s failure to comply with Federal Central District rules. None of these arguments identify any grounds to deny the motion. None of these arguments show she made the monthly payments, as ordered by the Court and that were required as a condition to obtain the preliminary injunction.

The Plaintiff, Mylene Lopez-Farooq, also filed a declaration in support of her opposition. She provides opinions that she is a victim of fraud and that a manifest injustice has occurred. She provides facts regarding bankruptcies filed by other parties, on her belief that the grant deed was forged, on her belief that Loan Care made misrepresentations in its untimely motion to intervene, and that its cause of action for declaratory relief lacks sufficient facts. She utterly fails to offer evidence that she made a single monthly payment, as ordered by the Court. There is no evidence of a check, a payment, a money order, a transfer of funds, or any other payment of $2,000 per month, as ordered by the Court.

Therefore, the Defendant-in-Intervention has provided evidence showing that there are grounds to dissolve the preliminary injunction issued on November 30, 2017 because the Plaintiff has never complied with the requirement to make monthly payments of $2,000. This evidence of a change in the facts show that it is in the ends of justice to dissolve the preliminary injunction because the Plaintiff has, contrary to the Court’s intent, been residing at the subject property without payment of any money.

Further, this is evidence that the preliminary injunction is inoperative because the indispensable prerequisite of an undertaking, make through the monthly payments, has not been performed.

Accordingly, the Court grants the Defendant-in-Intervention’s Motion and dissolves the preliminary injunction issued on November 30, 2017.

Defendant to give notice.

'


b'

Case Number: ****8000 Hearing Date: September 30, 2021 Dept: F49

Dept. F-49

Date: 9/30/2021

Case No: ****8000

PLAINTIFF’S MOTION FOR RECONSIDERATION,

RELIEF REQUESTED:

Plaintiff, Mylene Farooq, and Third Party, Ibrahim Farooq

Order reconsidering the June 10, 2021 order in which the Court denied the Plaintiff’s motion to dismiss Loancare’s Complaint-in-Intervention.

RULINGS:

Deny motion for reconsideration in its entirety.

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiff alleges that the Defendants are wrongfully foreclosing on her home. In 2011, the Plaintiff borrowed $276,400.00 from Defendant, Bank of America, and secured the loan with a deed of trust on her property. The Plaintiff’s loan was then assigned to the Defendant, Ditech, on April 1, 2013.

In early 2016, the Plaintiff failed to make payments on the loan. In September of 2016, Ditech appointed the Defendant, Clear Recon Corp., as the trustee under the deed. Clear Recon then recorded a notice of default on the property on August 24, 2017.

The Plaintiff commenced this action to claim that the Defendants failed to follow the requirements for providing her with the opportunity to modify her loan. She alleges that the Defendants’ acts to foreclose on her property are violations of the Homeowner’s Bill of Rights and are torts.

In the caption to her First Amended Complaint, the Plaintiff did not list a first through fourth causes of action. Instead, she identifies the causes of action as 5, 6, 7, 8, and 9. These causes of action include the following:

5) Breach of Contract;

6) Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Negligence;

8) Negligent Infliction of Emotional Distress; and

9) Violation of Business and Professions Code section 17200.

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted the LoanCare, LLC, leave to intervene on September 10, 2020 because it found that LoanCare, LLC, claimed an interest relating to the property. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Ditech Financial, LLC, filed a motion to enforce a bankruptcy order directing the Plaintiff to dismiss this action based the bankruptcy court had issued a Chapter 11 reorganization order. The Court found that the Plaintiff had refused to comply with the order and, as a result, the Court granted the motion and dismissed the action against Ditech Financial, LLC. A judgment of dismissal was entered on June 4, 2021.

ANALYSIS:

This hearing concerns the Plaintiff’s motion for reconsideration of the June 10, 2021 order that denied her motion to dismiss the Complaint-in-Intervention of Loancare LLC.

1. The June 10, 2021 Order at Issue

On June 10, 2021, the Court heard the Plaintiff’s motion to dismiss in which she argued that the Court lacked subject matter jurisdiction over the Complaint in Intervention. This motion was denied because the Plaintiff identified no authority in her motion that offered any basis to find the Court lacked subject matter jurisdiction over the claims in Loancare LLC’s Complaint-In-Intervention. In her papers, the Plaintiff argued that she filed her lawsuit for mortgage fraud and identity theft, she had ineffective assistance of counsel and collusion, people think procedures are fair, intervention is a joinder of parties, the court “did not have both parties subject Matter Jurisdiction (sic) therefore LONECARE must dismiss its claims”, and the court must balance the quests of its fairness in its application. There were additional arguments about the doctrine of res judicata, untimeliness of the intervention, statute of limitations, a falsified deed of trust, a forged grant deed, the deletion of data on her computer, the Court erred by granting judicial notice of documents, the defendants wrongfully initiated foreclosure actions, and there is no valid chain of title. A review of the arguments revealed no cogent or persuasive grounds to find that the Court lacked subject matter jurisdiction over a claim for declaratory relief concerning real property in California.

The Court’s "subject matter jurisdiction" refers to the court\'s power to hear and resolve a particular dispute or cause of action. (Conservatorship of O\'Connor (1996) 48 Cal.App.4th 1076, 1087.) The California Constitution confers broad subject matter jurisdiction on the superior court. (Cal. Const., art. VI, ; 10.) Each superior court has general subject matter jurisdiction, meaning that it can adjudicate any and all cases brought before it, with some exceptions for courts of limited jurisdiction. (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 556.)

The Complaint-in-Intervention seeks declaratory relief regarding the rights and duties of the parties with regards to the real property at 18503 Olympian Court, Santa Clarita, California 91351. Since this is a claim about real property located within the state of California, the Superior Court has subject matter jurisdiction over the claim.

As a result, the Court denied the Plaintiff’s motion to dismiss.

2. Plaintiff’s Request for Reconsideration

Under CCP section 1008(a), when a motion has been denied in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may make an application to the same judge that made the order to seek reconsideration of the motion and an order modifying, amending, or revoking the prior order. The application for reconsideration must be made within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law.

CCP section 1008(a) requires the party making the application to state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court\'s jurisdiction with regard to applications to renew and that no application to renew any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court\'s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.)

A review of the Plaintiff’s motion reveals that it does not include a declaration identifying new facts, circumstances, or law. Since the Plaintiff has not complied with CCP section 1008, the Court lacks jurisdiction to consider her requested relief.

Further, the Plaintiff’s motion identifies no grounds to reconsider the prior order. Her memorandum includes a number of arguments that do not concern subject matter jurisdiction, for example, arguments about attorneys, schemes to defraud the Court and plaintiff, and that “Court online services play a party on LOANCARE and Ditech’s Fraud on the Court”. At one point, the Plaintiff argues that ECOURT manipulates the Docket and filed documents and she states:

ECOURT must stop interfering with Plaintiff’s filed documents, deletion

of dockets, and preparing Ruling automatically generated through the

Court’s computer system.

Many of these arguments are repeated from prior papers. None has any relevance to subject matter jurisdiction over Loancare LLC’s request for declaratory relief concerning real property located in California. Moreover, there is no evidence whatsoever that eCourt, a case management system, has developed an AI (“Artificial Intelligence”) with the ability or desire to thwart the Plaintiff’s claims.

Therefore, the Court denies the Plaintiff’s motion for reconsideration because she failed to comply with CCP section 1008 and, as a result, the Court lacks jurisdiction to hear a motion for reconsideration that fails to comply with CCP section 1008.

California law holds that a self-represented litigant “is entitled to the same, but no greater, consideration than other litigants and attorneys,” and that the self-represented litigant “is restricted to the same rules of procedure as is required of those qualified to practice before our courts.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055–1056.) “A litigant has a right to act as his own attorney but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” (Id. at p. 1055.) “Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 979.)

This is not the first time that the Plaintiff, Mylene Lopez-Farooq, has disregarded court orders or rules of civil procedure. As the Court noted in its ruling regarding the April 20, 2021 hearing, the Plaintiff ignored a bankruptcy order and did not seek the proper remedies to contest the order, if she believed she has valid grounds to challenge it. Also, the Plaintiff has repeatedly filed motions for reconsideration without complying with CCP section 1008, which, as discussed above, identifies the Court’s exclusive jurisdiction to reconsider prior orders. As noted above, California law does not “cast a sympathetic eye on the unprepared” and the Court will continue to require the Plaintiff to comply with the rules of procedure and will continue to deny the Plaintiff’s improper requests for relief.

Plaintiff to give notice.

'


b'

Case Number: ****8000 Hearing Date: September 2, 2021 Dept: F49

Dept. F-49

Date: 09/02/21

Case ****8000

MOTION TO COMPEL

MOVING PARTY: Plaintiff, Mylene Farooq

RESPONDING PARTY: Defendant, Loan Care, LLC

Notice: ok

RELIEF REQUESTED

Plaintiff requests that the Court compel Defendant to provide responses to her Requests for Production of Documents (Set One).

RULINGS:

1. Deny Plaintiff’s Motion to compel responses.

2. Impose monetary sanctions of $645 on the Plaintiff for misusing discovery by filing this motion without justification.

SUMMARY OF ACTION

The Plaintiff alleges claims that the Defendants are wrongfully foreclosing on her home.

In 2011, the Plaintiff borrowed $276,400.00 from Defendant, Bank of America, and secured the loan with a deed of trust on the property. The Plaintiff’s loan was then assigned to the Defendant, Ditech, on April 1, 2013.

In early 2016, the Plaintiff defaulted. In September of 2016, Ditech appointed the Defendant, Clear Recon Corp., as the trustee under the deed. Clear Recon then executed a notice of default and this was recorded on the property on August 24, 2017.

The Plaintiff brought this case to claim that the Defendants never intended to offer her an opportunity to modify her loan and that the Defendants’ acts to foreclose on her violate the Homeowner’s Bill of Rights and are torts.

In the caption to her First Amended Complaint, the Plaintiff did not list a first through fourth causes of action. Instead, she identifies the causes of action as 5, 6, 7, 8, and 9. These causes of action include the following:

5) Breach of Contract;

6) Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Negligence;

8) Negligent Infliction of Emotional Distress; and

9) Violation of Business and Professions Code section 17200.

The Court issued a preliminary injunction on November 30, 2017 to halt the sale of the Plaintiff’s real property.

In 2020, LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted LoanCare, LLC, leave to intervene on September 10, 2020. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

In March of 2021, Plaintiff served Requests for Production of Documents (Set One) on Defendant. The specific date of service is unclear because Plaintiff did not include a copy of the Requests for Production along with the proof of service in her motion. The Defendant’s attorney, Tim Pomeroy, states that the Plaintiff’s requests were received on March 17, 2021. He adds that the Plaintiff’s requests were signed and dated on March 10, 2021.

A copy of the Plaintiff’s requests for production is in exhibit A to Mr. Pomeroy’s declaration. A review of the requests reveals that the Plaintiff signed and dated the requests on March 10, 2021. Accordingly, it appears that the Plaintiff served the requests for production on March 10, 2021.

On March 26, 2021, Plaintiff filed the pending motion to compel Defendant’s responses to the Requests.

ANALYSIS:

1. Motion to Compel

The Plaintiff argues that the Court should order the Defendant to respond to her requests for production. However, she filed her motion before the time to respond had ended. Under CCP section 2031.260, a party has 30 days to respond after requests for production of documents are served on the party. When the responding party fails to serve responses within this 30 day time period, CCP section 2031.300 authorizes the propounding party to seek an order compelling responses.

As noted above, Plaintiff served the requests for production on or about March 10, 2021. (See Pomeroy Decl., ¶ 3, Exh. A.) As such, Defendant’s responses were due on or about April 10, 2021.

The Plaintiff did not wait until April 10, 2021 to file her motion. Instead, the Plaintiff filed her motion on March 26, 2021, which was 15 days before the responses were due. As a result, the Plaintiff’s motion does not show grounds for relief because it does not show that the Defendant had failed to serve timely responses within the 30-day time period after service of the requests for production on March 10, 2021. As a result, the Plaintiff’s motion should be denied as premature.

In addition, the Defendant’s opposition shows that the Defendant served responses and produced documents on April 14, 2021. (See Pomeroy Decl., ¶ 6 and copies of the responses and documents in exhibit B.) As a result, the Plaintiff’s motion is moot and this is additional grounds to deny her request for relief.

Therefore, the Plaintiff’s Motion to Compel Responses is denied.

2. Monetary Sanctions

The Defendant requests that the Court impose monetary sanctions on the Plaintiff because her motion is a misuse of discovery.

Under CCP section 2023.010(h), it is a misuse of discovery to file a motion to compel unsuccessfully and without substantial justification. Here, the Plaintiff’s motion is a misuse of discovery because there was no justification to file the motion before the responses were due.

Under California Code of Civil Procedure section 2023.030(a), the Court may impose monetary sanctions on party that misuses discovery. Here, there are grounds to impose monetary sanctions because the Plaintiff misused discovery by filing a motion to compel responses before the responses were due.

The Defendant’s attorney, Tim Pomeroy, provides facts in paragraph 9 to show that the Defendant incurred $1,075 in monetary sanctions based on 5 hours to respond to the Plaintiff’s motion billed at $215 per hour.

A more reasonable amount of time to spend responding and appearing on this motion is 3 hours. When billed at the reasonable rate of $215, the total is $645. This is a reasonable amount of monetary sanctions to impose on the Plaintiff for the attorney’s fees and costs incurred by the Defendant as a result of her misuse of discovery.

Therefore, monetary sanctions of $645 are imposed on the Plaintiff under CCP section 2023.030 for filing the pending motion without substantial justification.

DISPOSITION:

1. Plaintiff’s Motion to Compel Responses is denied.

2. Monetary sanctions of $645 are imposed on the Plaintiff.

3. Defendant, Loancare, LLC, is ordered to give notice.'


Case Number: ****8000    Hearing Date: April 20, 2021    Dept: F49

Dept. F-49

Date: 4/20/2021

Case No: ****8000

1. PLAINTIFF’S MOTION TO COMPEL IDENTITIES OF COURT EMPLOYEES

2. DEFENDANTS’S MOTION TO DISMISS DITECH

RELIEF REQUESTED:

1. Plaintiff, Mylene Farooq

Order compelling Court to provide identities of law clerks, attorneys, and court process managers.

Order for Defendants to stop intruding on Plaintiff’s electronic devices

2. Defendant, Ditech Financial LLC

Order dismissing Defendant, Ditech Financial LLC

RECOMMENDATIONS:

1. Plaintiff, Mylene Farooq

Deny motion in its entirety.

2. Defendant, Ditech Financial LLC

Grant motion and dismiss Ditech Financial LLC

CLAIMS AND PROCEDURAL BACKGROUND:

The Plaintiff alleges claims that the Defendants are wrongfully foreclosing on her home.

In 2011, the Plaintiff borrowed $276,400.00 from Defendant, Bank of America and secured the loan with a deed of trust on the property. The Plaintiff’s loan was then assigned to the Defendant, Ditech, on April 1, 2013.

Ditech sent billing statements to the Plaintiff every month. In September of 2015, the Plaintiff submitted a Mortgage Assistance Application under HAMP. Ditech informed the Plaintiff that she was eligible for a trial payment plan under HAMP and assigned a single point of contact. When the Plaintiff contacted Ditech to follow up on the plan, Ditech admitted it had not reviewed the Plaintiff’s eligibility for foreclosure prevention alternatives.

In early 2016, the Plaintiff defaulted. In September of 2016, Ditech appointed the Defendant, Clear Recon Corp., as the trustee under the deed. Clear Recon then executed a notice of default and this was recorded on the property on August 24, 2017.

The Plaintiff brought this case to claim that the Defendants never intended to offer her an opportunity to modify her loan and that the Defendants’ acts to foreclose on her violate the Homeowner’s Bill of Rights and are torts.

In the caption to her First Amended Complaint, the Plaintiff did not list a first through fourth causes of action. Instead, she identifies the causes of action as 5, 6, 7, 8, and 9. These causes of action include the following:

5) Breach of Contract;

6) Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Negligence;

8) Negligent Infliction of Emotional Distress; and

9) Violation of Business and Professions Code section 17200.

On September 27, 2017, the Plaintiff appeared with an ex parte application for a TRO, which this Court granted until further order. On November 30, 2017, the Court issued a preliminary injunction to bar the sale of the real property.

LoanCare, LLC, sought leave to intervene in this case because Ditech transferred the beneficial interest in the deed of trust to LoanCare, LLC. The Court granted the LoanCare, LLC, leave to intervene on September 10, 2020. LoanCare LLC filed a Complaint in Intervention on September 28, 2020 to plead a single cause of action for declaratory relief regarding the rights of the parties in the real property.

Loancare, LLC, is not a party to the First Amended Complaint. It is not named as a defendant and the Plaintiff has not filed a DOE amendment to identify Loancare, LLC, as a DOE Defendant.

ANALYSIS:

This hearing concerns the following two motions:

1) the Plaintiff’s motion filed on November 18, 2020 to compel the Court to identify its law clerks, attorneys, and process managers and to order Defendants to stop intruding on her electronic devices; and

2) the Defendant’s motion to dismiss Ditech Financial LLC.

In addition, the Court has set a Status Conference regarding the Bankruptcy of Ditech Financial LLC for this hearing.

1. Plaintiff’s Motion to Compel the Identification of Court Employees and to Halt Intrusions on her Electronic Devices

The Plaintiff filed a motion on November 18, 2020 to compel the Court to provide her with the identifies of Court individuals responsible for the preparation of the Court’s tentative rulings and minute orders. She argues that the Court’s employees made mistakes and filed documents improperly. She also claims that she has had difficulties when she e-files documents with the Court.

The Plaintiff identifies no legal authority that would authorize her to obtain information on any individual at Court for any purpose in this lawsuit. More importantly, the Plaintiff identifies no basis for obtaining discovery into the identity of any individual at the Court. Under CCP section 2017.010, a party may obtain discovery regarding any matter that is relevant to the subject matter involved in the pending action or to the determination of any motion made in the action, if the matter is admissible or appears reasonably calculated to lead to the discovery of admissive evidence. Further, section 2017.010 authorizes discovery into the identity of persons having knowledge of any discoverable matter.

Here, the Court’s employees possess no knowledge relevant to the subject matter in this action, i.e., the Plaintiff’s claims about her property, based on their employment with the Court. The Plaintiff offers no facts showing good cause to find they have knowledge of any matters admissible or reasonably calculated to lead to the discovery of admissible evidence. As a result, CCP section 2017.010 does not authorize the Plaintiff to obtain discovery into the identities of the Court employees because they have no knowledge of any discoverable matter in this case.

Further, the Court reviews each document, applies the law to the facts, and makes determinations in order to resolve the disputes between the parties. The Court’s employees do not possess any information relevant to the manner by which the Court makes determinations on its orders because this is a task for which the Court is solely responsible. If the Plaintiff does not agree with the Court’s order, her remedy is to use the appropriate civil procedure to obtain reconsideration or modification of the order. The identity of any court employee is unnecessary to any of these civil procedures to contest or correct a Court order.

Further, the Plaintiff claims that the Court’s employees have sabotaged her case. She offers absolutely no evidence to support such claims. On the contrary, the Court’s employees work diligently and follow all applicable rules to ensure that the Court has every document needed to make the correct decision. They are dedicated to serving all litigants by providing equal access to justice through the fair, timely and efficient resolution of all cases.

Accordingly, a review of the Plaintiff’s papers reveals no legal authority and no cause whatsoever to allow her to obtain discovery into the identity of any of the Court’s employees. If she has any concern about an order or document, she may raise it with the Court.

Therefore, the Plaintiff’s request for the identities of any Court employee is denied.

Further, the Plaintiff requests that the Court order the Defendants not to intrude into her electronic devices, e.g., her computer, cell phone, and printer. The Plaintiff identifies no legal authority for such an order. The Plaintiff fails to offer any evidence that the Defendants are intruding into any of her electronic devices. This request is denied as well.

Accordingly, the Court denies the Plaintiff’s motion in its entirety.

2. Defendant’s Motion to Dismiss Ditech

The Defendant, Ditech Financial LLC, requests that the Court dismiss it from the action because it has obtained a bankruptcy discharge of the Plaintiff’s claims. The following analysis shows that the Bankruptcy Court has ordered that the Plaintiff’s claims be dismissed, that the Plaintiff has willfully and deliberately refused to comply with this order, and that these extreme circumstances merit the dismiss of the Plaintiff’s action under the Court’s inherent authority to dismiss actions lacking in merit.

a. Orders and Background Regarding Defendant’s Bankruptcy

On February 19, 2019, the Defendant filed its Notice of Bankruptcy Filing because Ditech Holding Corporation and its subsidiaries, including Ditech Financial, LLC, had filed petitions for relief under Chapter 11 on February 11, 2019. Under 11 USC section 362, this operated as an automatic stay of the continuance of any judicial action against the Defendant, Ditech Financial, LLC. The Court stayed this action on February 20, 2020.

The Court then held Bankruptcy Status Conferences on June 26, 2019, October 23, 2019, January 17, 2020, May 13, 2020, and October 5, 2020.

On June 5, 2020, the Defendant filed a Notice of Bankruptcy Court Order. This notice includes the Bankruptcy Court’s “Order Granting Plan Administrator’s Third Omnibus Motion To Enforce Injunctive Provisions Of Plan And Confirmation Order”. A copy of this order is attached as exhibit 1 to the Defendant’s motion.

This Bankruptcy Court order barred the Plaintiff from continuing to maintain and prosecute her claims for damages against Ditech Financial LLC (Order, page 2, numbered paragraph “3”). It required her to dismiss her claims no less than 14 days after the entry of the order (Id.). The order includes a file stamp on the top of the page showing that it was entered on June 3, 2020.

It permitted the Debtors, including Ditech Financial LLC, to seek sanctions in the event Plaintiff refused to dismiss monetary claims against Ditech (Order, page 2, numbered paragraph “4”).              In addition, in Annex A, the Bankruptcy Court specifically identifies the Plaintiff's claim as a claim that must be dismissed (page 4 of the pages that have the landscape orientation in Annex A):

This shows that the Plaintiff was ordered by the Bankruptcy Court to dismiss her claims no later than 14 days from the entry of the order on June 3, 2020.  Since the Plaintiff filed opposition papers on April 12, 2021, the Plaintiff has refused to comply with this order and is continuing to litigate her claims against Ditech in this case.

b. The Court Has Inherent Authority to Dismiss in this Circumstance

The following shows that the Plaintiff’s failure to comply with the Bankruptcy Court order is grounds for the Court to exercise its inherent authority and dismiss the Plaintiff’s claims against Ditech. 

CCP sections 581(m) and 583.150 recognize that courts have the inherent authority to dismiss an action.  Trial courts should only exercise this inherent authority in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation, the fault lies with the client and not the attorney, and when the court issues a directive that the party fails to obey.  (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799) (as modified on denial of reh'g on May 31, 2007).

For example, in Del Junco, the Court found that the defendant in following orders of the court and that her actions were those of an obstructionist, not a participant in the process. The Court found that the following conduct supported the order striking the defendant’s answer and entering a default:

1) she filed documents in propria persona that did not follow proper form, were lengthy, contained irrelevant information, and violated court rules;

2) she filed documents without serving them;

3) she did not pay sanctions when ordered to do so;

4) she operated a counterfeit web site; and

5) when she had counsel, matters did not improve and misrepresentations were made to the court, documents were not filed when promised, responses to discovery were not served, and phone calls were not returned.

The Court found that these actions caused the plaintiff to incur unnecessary expense and were clear and deliberate grounds for the trial court to strike the defendant’s answer and enter a default.

c. This is an Extreme Situation in which the Court May Dismiss the Plaintiff’s Claims

As noted above, the Court identified circumstances in which it was appropriate for the Court to exercise its inherent authority to dismiss an action.  These included circumstances in which the party engaged in clear and deliberate conduct to thwart justice, when no lesser alternatives would remedy the situation, when the fault lies with the client and not the attorney, and when the party fails to obey a court order (Del Junco, supra, 150 Cal.App.4th at p. 799).

The following shows that these circumstances exist in this case to dismiss the Plaintiff’s claims.  Moreover, a court order dismissing the Plaintiff’s claims against the Defendant is consistent with the Bankruptcy Court’s order directing the Plaintiff to dismiss her claims against the Defendant.  

Clear and Deliberate Refusal

In the pending case, the Plaintiff’s conduct shows a clear and deliberate refusal to comply with the Bankruptcy Order.  On June 2, 2020, a United States Bankruptcy Judge, the Honorable James Garrity, issued an order that specifically identified the Plaintiff’s claims against the Defendant and required her to dismiss her claims no later than 14 days after entry of the order (see moving papers, exhibit 1).  The order was entered on June 3, 2020.  As a result, the Plaintiff was required to dismiss her claims no later than 14 days later, which was June 17, 2020. 

The Defendant served notice of the order on the Plaintiff on June 5, 2020.  The Defendant’s notice identified the injunction from litigating the case, identified the provision authorizing the Defendant to see sanctions against the Plaintiff if she failed to dismiss her claims, and included a copy of the Bankruptcy Order.

The Plaintiff did not comply by dismissing the action by June 17, 2020 or any later date.  On the contrary, she has continued to litigate this case by filing papers to seek reconsideration of orders, by seeking to compel the Court to provide her with the identity of its employees, by seeking an order for the Defendants to stop intruding into her electronic devices, by seeking a continuance to retain counsel, and by filing an opposition to the pending motion to dismiss.  Throughout her papers, the Plaintiff offers scant legal authority, no relevant evidence, and no valid grounds for any of the relief sought.

For example, in her opposition to the pending motion, the Plaintiff claims on page 2 that the Defendant’s “enforcement order” on June 5, 2020 was not signed by the judge.  This is false.  The order attached to the Defendant’s notice was signed by Judge Garrity. 

In addition, the Plaintiff notes she filed an objection to the June 5, 2020 notice.  There were no grounds for any objection to a notice of the Bankruptcy Order. 

The Plaintiff then argues that had not served unidentified motions to consumer claimants and consumer litigations.  She also argues that other proceedings in the Bankruptcy Court were improper.  This offers no basis for her failure to comply with the Bankruptcy Order. 

She also claims that Chief Counsel for Ditech Financial LLC was involved in falsified loans.  She adds that her claim was altered, the amount was altered, that documents were replaced, that her proof of service was “intercepted”, that there is a conflict of interest, that documents were not provided, that her claim is “valid and Criminally (sic) enforceable”, that the Plaintiff’s credit was falsified, and that Ditech is in contempt.  None of these arguments offer any explanation for her failure to comply with the Bankruptcy Order. 

California law holds that a self-represented litigant “is entitled to the same, but no greater, consideration than other litigants and attorneys,” and that the self-represented litigant “is restricted to the same rules of procedure as is required of those qualified to practice before our courts.”  (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055–1056.)  “A litigant has a right to act as his own attorney but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.”  (Id. at p. 1055.)  “Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 979.)

Here, the Plaintiff’s actions show a clear and deliberate refusal to comply with a Court order because she has not dismissed the action and continues to litigate her claims against the Defendant.  If she is permitted to continue litigating her claims against the Defendant, it creates the danger of a “kaleidoscope of shifting rules” in that she is allowed to disregard an express order that required her to dismiss her claims against the Defendant no later than June 17, 2020, but all other parties subject to the order complied by dismissing the claims identified in Annex A to the order. 

Further, the Plaintiff’s clear and deliberate refusal to comply with the Bankruptcy Order has caused the Defendant to incur unnecessary expenses.  As a result, the Plaintiff’s refusal has interfered with the Bankruptcy Court’s ability to manage the reorganization of the Defendant under the chapter 11 Bankruptcy because the Defendant has continued to incur expenses to defend itself from a lawsuit that should have been dismissed by June 17, 2020. 

No Lesser Alternative to Dismissal

In addition, no lesser alternative than dismissal will remedy the situation.  The Plaintiff’s claims were required to be dismissed by June 17, 2020.  She is barred from continuing to litigate her claims against the Defendant.  No other procedure is available in this Court. 

Fault Lies with the Plaintiff

Further, the fault lies with the Plaintiff and not an attorney because she is self-represented.  As noted above, she is restricted to the same rules of procedure as any other person qualified to practice law.  Her failure to comply with the bankruptcy court is her fault.

Plaintiff Failed to Obey Court Order

Finally, the Plaintiff has failed to obey a directive issued by the Bankruptcy Court that barred her claim. 

Under 11 USC section 1141(d)(1)A), the confirmation of a plan discharges the debtor from any debt that arose before the date of such confirmation.  A “debt” is defined by 11 USC section 101(12) to include “liability on a claim.”  A “claim” within the meaning of 11 USC section 101(5) of the Bankruptcy Code means:

(A) right to payment, whether or not such right is reduced to judgment,

liquidated, unliquidated, fixed, contingent, matured, unmatured,

disputed, undisputed, legal, equitable, secured, or unsecured; or

(B) right to an equitable remedy for breach of performance if such

breach gives rise to a right to payment, whether or not such right to an

equitable remedy is reduced to judgment, fixed, contingent, matured,

unmatured, disputed, undisputed, secured, or unsecured.

In enacting this broad definition of “claim,” Congress contemplated that “all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.” (Cal. Dept. Of Health Services v. Jensen (9th Cir. 1993) 995 F.2d 925, 929.  

Aa general rule, the “confirmation of a plan of reorganization constitutes a final judgment in bankruptcy proceedings.” (Sanders Confectionery Prods., Inc. v. Heller Fin., Inc. (6th Cir. 1992) 973 F.2d 474, 480.  Such confirmation by a bankruptcy court “has the effect of a judgment by the district court and res judicata principles bar relitigation of any issues raised or that could have been raised in the confirmation proceedings.” (In re Chattanooga Wholesale Antiques, Inc. (6th Cir. 1991) 930 F.2d 458, 463.

As noted above, the Bankruptcy Order specifically identified the Plaintiff’s claims in Annex A.  The Bankruptcy Order confirmed the plan of reorganization.  This constituted a final judgment in the bankruptcy proceedings.  It discharged the Defendant from any debt arising from the Plaintiff’s claim.

As a result, the Plaintiff has to obey the directive or timely seek a remedy in the Bankruptcy Court.  Since the Plaintiff has offered no evidence that she sought any timely remedy, she was required to dismiss her claims against the Defendant.  By failing to dismiss her claims, she has failed to obey a Court order.

This analysis shows that this is an extreme situation in which the Court exercises its inherent authority and dismisses the Plaintiff’s claims against the Defendant, Ditech Financial.

Plaintiff to give notice on her motion to compel, and Defendant Ditech to give notice on its motion to dismiss  



Case Number: ****8000    Hearing Date: January 26, 2021    Dept: F49

Dept. F-49

Date: 1-26-21

Case No: ****8000

Trial Date: N/A

RECONSIDER

MOVING PARTY: Plaintiff, Mylene Farooq

RESPONDING PARTY: LoanCare, LLC

RELIEF REQUESTED

Motion for Reconsideration of the Order Granting LoanCare, LLC Leave to Intervene

SUMMARY OF ACTION

Plaintiff Mylene Farooq alleges executing a $276,400 loan refinancing agreement with Defendant Bank of America in June 2011. The loan was secured with a deed of trust on property identified as 18503 Olympian Court, Santa Clarita. Loan service transferred from Bank of America to Defendant Ditech on April 1, 2013. Ditech sent Plaintiff billing statements every month.

In September 2015, Plaintiff submitted a Mortgage Assistance Application under HAMP. Ditech informed Plaintiff she was eligible for a trial payment plan under HAMP and assigned a single point of contact. When Plaintiff contacted Ditech to follow up on the plan, Ditech admitted it hadn’t reviewed Plaintiff’s eligibility for foreclosure prevention alternatives. In early 2016, Plaintiff defaulted on the note. In September 2016, Ditech appointed Defendant Clear Recon Corp. as the trustee under the deed, who then executed a note of default that was recorded on the property on August 24, 2017.

On September 25, 2017, Plaintiff filed a complaint Violation of Civil Code section 2923.55, Violation Civil Code section 2923.6, Violation of Civil Code section 2923.7, Violation of Civil Code section 2924.12, Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200.

On September 27, 2017, the court granted the ex parte application for temporary restraining order enjoining the foreclosure. On November 30, 2017, the Court granted the preliminary injunction. On February 8, 2018, the court granted the motion of counsel for plaintiff to withdraw as attorney of record.

On May 24, 2018, the court sustained the demurrer of Ditech to the Violation of Civil Code section 2923.55, Violation Civil Code section 2923.6, Violation of Civil Code section 2923.7, Violation of Civil Code section 2924.12 causes of action without leave to amend, and sustained the demurrer to the Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200 causes of action with 30 days leave to amend. On the same date, the court sustained the demurrer of Bank of America to the entire complaint without leave to amend. The court entered judgment in favor of Bank of America on July 19, 2018.

After a number of continuances, Plaintiff in pro per filed a first amended complaint for Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200.

On February 11, 2019, Ditech filed for Chapter 11 Bankruptcy. On February 19, 2019, Plaintiff filed a notice of appeal. On February 20, 2019, the court ordered the case stayed due to the Ditech Bankruptcy. The appeal was dismissed on May 13, 2019.

At the January 17, 2020 status conference, the court placed the case against Ditech on the civil inactive list. On March 13, 2020, the court denied Plaintiff’s motions for “Cancellation of Assignment,” leave to amend to file an amended complaint, and permanent injunction.

On September 10, 2020, the court granted LoanCare, LLC leave to file a complaint in intervention. LoanCare, LLC filed its complaint in intervention for declaratory relief on September 28, 2020.

RULING: Denied.

Request for Judicial Notice: Granted.

Moving party contends the court granted the subject motion on false pretenses, including falsified deed of trust, thereby rendering it null and void. Plaintiff also contends a “computer intrusion” caused a delay in the filing of the motion. Ibrahim Farooq, spouse of Plaintiff also submits a declaration denying ever executing certain documents, as well claims that the courthouse staff hid her case file, and defendants continue to collude with computer interference.[1]

The court specially set the subject hearing pursuant to the ex parte motion of moving party on November 4, 2020. The motion was filed on the same date.

Defendant in opposition counters that the motion offers no new law or facts in support of the motion.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Citations.) A motion for reconsideration will be denied absent a strong showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved of and overruled on unrelated grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172 (footnote 3); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213; Baldwin v. Home Sav. of America. (1997) 59 Cal.App.4th 1192, 1199.) Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.) The burden under Section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

The motion lacks any new or different facts, or showing of diligence. Plaintiff lacks any showing of justification for the failure to raise any new arguments at the time of the prior hearing, and/or simply seeks to reiterate the prior arguments. Dissatisfaction with the underlying proceedings involving cross-complainant in intervention will not support a basis for reconsideration.

Additional motions and a Status Conference re: Bankruptcy are set for February 16, 2021 and April 20, 2021.

Moving party to give notice.


[1]The declaration of Ibrahim Farooq was filed on October 15, 2020.



Case Number: ****8000    Hearing Date: September 10, 2020    Dept: F49

Dept. F-49

Date: 9-10-20 c/f 5-11-20

Case No: ****8000

Trial Date: N/A

INTERVENE

MOVING PARTY: LoanCare, LLC

RESPONDING PARTY: Plaintiff, Mylene Farooq

RELIEF REQUESTED

Motion for Leave to Intervene

SUMMARY OF ACTION

Plaintiff Mylene Farooq alleges executing a $276,400 loan refinancing agreement with Defendant Bank of America in June 2011. The loan was secured with a deed of trust on property identified as 18503 Olympian Court, Santa Clarita. Loan service transferred from Bank of America to Defendant Ditech on April 1, 2013. Ditech sent Plaintiff billing statements every month.

In September 2015, Plaintiff submitted a Mortgage Assistance Application under HAMP. Ditech informed Plaintiff she was eligible for a trial payment plan under HAMP and assigned a single point of contact. When Plaintiff contacted Ditech to follow up on the plan, Ditech admitted it hadn’t reviewed Plaintiff’s eligibility for foreclosure prevention alternatives. In early 2016, Plaintiff defaulted on the note. In September 2016, Ditech appointed Defendant Clear Recon Corp. as the trustee under the deed, who then executed a note of default that was recorded on the property on August 24, 2017.

On September 25, 2017, Plaintiff filed a complaint Violation of Civil Code section 2923.55, Violation Civil Code section 2923.6, Violation of Civil Code section 2923.7, Violation of Civil Code section 2924.12, Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200.

On September 27, 2017, the court granted the ex parte application for temporary restraining order enjoining the foreclosure. On November 30, 2017, the Court granted the preliminary injunction. On February 8, 2018, the court granted the motion of counsel for plaintiff to withdraw as attorney of record.

On May 24, 2018, the court sustained the demurrer of Ditech to the Violation of Civil Code section 2923.55, Violation Civil Code section 2923.6, Violation of Civil Code section 2923.7, Violation of Civil Code section 2924.12 causes of action without leave to amend, and sustained the demurrer to the Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200 causes of action with 30 days leave to amend. On the same date, the court sustained the demurrer of Bank of America to the entire complaint without leave to amend. The court entered judgment in favor of Bank of America on July 19, 2018.

After a number of continuances, Plaintiff in pro per filed a first amended complaint for Breach of Contract, Breach of Implied Covenant, Negligence, Negligent Infliction of Emotional Distress; and Violation of Business and Professions Code section 17200.

On February 11, 2019, Ditech filed for Chapter 11 Bankruptcy. On February 19, 2019, Plaintiff filed a notice of appeal. On February 20, 2019, the court ordered the case stayed due to the Ditech Bankruptcy. The appeal was dismissed on May 13, 2019.

At the January 17, 2020 status conference, the court placed the case against Ditech on the civil inactive list. On March 13, 2020, the court denied Plaintiff’s motions for “Cancellation of Assignment,” leave to amend to file an amended complaint, and permanent injunction.

RULING: Granted.

LoanCare, LLC moves for leave to intervene. LoanCare, LLC on grounds of protecting its beneficial interest in the deed of trust. LoanCare, LLC represents that the beneficial interest under the Deed of Trust was assigned to it from DiTech on October 24, 2019. [Req. Jud. Not., Ex. 3.] On June 21, 2019, Plaintiff, in pro per, recorded a lis pendens on the property. [Id., Ex. 4.] LoanCare, LLC as the holder of the deed of trust contends that Plaintiff continues to skip payments due on the note, and therefore seeks leave to intervene in order to preserve and pursue its rights under the deed of trust.

Plaintiff in pro per filed a four day late opposition, and argues that the subject motion “interferes” with Plaintiff’s prior and/or efforts to cancel an unlawful assignment of a deed of trust and motion to add additional defendants. Plaintiff challenges the authority of LoanCare, LLC to intervene, as it has “no legal authority to demand payment from Plaintiff.” Plaintiff bases this contention with the argument that she is a victim of identity theft, which led to a series of “falsified loans.”

Code of Civil Procedure section 387 provides in relevant part:

(d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(A) A provision of law confers an unconditional right to intervene.

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.

(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.

(Code Civ. Proc., ; 387.)

“The right to intervention may be permissive or unconditional. It is permissive when a person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both of the parties. (Code Civ. Proc., ; 387, subd. (a).) It is unconditional when the person seeking intervention claims an interest relating to the property or transaction that is the subject of the action, the disposition of the action may impair or impede the person's ability to protect that interest, and the interest is not being adequately represented by existing parties. (Code Civ. Proc., ; 387, subd. (b).)

(Mylan Labs. v. Soon-Shiong (1999) 76 Cal. App. 4th 71, 77-78.)

“The trial court has discretion to permit a nonparty to intervene where: (1) the proper procedures have been followed, (2) the nonparty has a direct and immediate interest in the action, (3) the intervention will not enlarge the issues in the litigation, and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.” (Chavez v. Netflix (2008) 162 Cal.App.4th 43, 51; Hinton v. Beck (2009) 176 Cal.App.4th 1378, 1382 [“Intervention pursuant to section 387, subdivision (a) is not a matter of right, but is discretionary with the trial court”].) “[I]t is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108; City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036 [“Because the decision whether to allow intervention is best determined based on the particular facts in each case, it is generally left to the sound discretion of the trial court”].)

“An order denying intervention is reviewed under the deferential abuse-of-discretion standard.” (Noya v. A.W. Coulter Trucking (2006) 143 Cal.App.4th 838, 842.) A court did not abuse its discretion in denying intervention as untimely, even though there is no statutory time limit. (Ibid.)

LoanCare, LLC maintains a direct interest in the property based on the deed of trust assignment from DiTech, and therefore an unconditional right to intervene. Even if the motion fell under the discretionary standard, LoanCare, LLC presents a sufficient basis for leave to intervene. Nothing in the opposition establishes an invalid interest in the property. The motion for leave to intervene is therefore granted. LoanCare, LLC to serve it’s complaint in intervention in conformance with Code of Civil Procedure section 387, subd. (e).

(e) If leave to intervene is granted by the court, the intervenor shall do both of the following:

(1) Separately file the complaint in intervention, answer in intervention, or both.

(2) Serve a copy of the order, or notice of the court's decision or order, granting leave to intervene and the pleadings in intervention as follows:

(A) A party to the action or proceeding who has not yet appeared shall be served in the same manner for service of summons …

(B) A party who has appeared in the action or proceeding, whether represented by an attorney or not represented by an attorney, shall be served in the same manner for service of summons …

(f) Within 30 days after service of a complaint in intervention or answer in intervention, a party may move, demur, or otherwise plead to the complaint in intervention or answer in intervention in the same manner as to an original complaint or answer.

Status Conference re: Bankruptcy set for October 5, 2020.

Moving party to give notice.



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