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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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Chatsworth Courthouse

  • 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

SEVERSON & WERSON

ALDRIDGE PITE LLP

WOLFE STUART BRUCE

 

Court Documents

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 -

2/8/2018: Other -

Other -

4/17/2018: Other -

Unknown

5/1/2018: Unknown

Other -

6/28/2018: Other -

Memorandum of Points & Authorities

7/25/2018: Memorandum of Points & Authorities

Case Management Statement

7/31/2018: Case Management Statement

Motion to Compel

8/10/2018: Motion to Compel

Opposition

8/14/2018: Opposition

Request for Dismissal

8/17/2018: Request for Dismissal

Notice

8/17/2018: Notice

Brief

9/11/2018: Brief

Unknown

9/14/2018: Unknown

Proof of Personal Service

9/21/2018: Proof of Personal Service

Notice

2/19/2019: Notice

Unknown

3/20/2019: Unknown

Proof of Service by Mail

4/8/2019: Proof of Service by Mail

126 More Documents Available

 

Docket Entries

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

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

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

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

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

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

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

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

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

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  • 03/06/2019
  • DITECH 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
  • Ex-Parte Application; Filed by Plaintiff/Petitioner

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

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

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

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

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

    Read MoreRead Less
  • 09/25/2017
  • Notice of case management conference; Filed by Clerk

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

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

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

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Tentative Rulings

Case Number: PC058000    Hearing Date: April 20, 2021    Dept: F49

Dept. F-49

Date: 4/20/2021

Case No: PC058000

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: PC058000    Hearing Date: January 26, 2021    Dept: F49

Dept. F-49

Date: 1-26-21

Case No: PC058000

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: PC058000    Hearing Date: September 10, 2020    Dept: F49

Dept. F-49

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

Case No: PC058000

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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