Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal

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PLAINTIFF’S OPPOSITION TO COURT’S OSC IN RE DISMISSAL

– EDCV12-00640-CJC (FFMx)

RICHARD IVAR RYDSTROM, ESQ. CSBN: 147470

[email protected]

RYDSTROM LAW OFFICE

4695 MacArthur Court 11th Floor

Newport Beach, Ca 92660

949.678.2218 (Tel) | 949.606.9716 (Fax)

www.RydstromLaw.Com

Attorney for Plaintiff

OPHELIA GEORGIEV ROOP

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

OPHELIA GEORGIEV ROOP Plaintiff,

vs.

CITIMORTGAGE INC., KAISER

FEDERAL BANK; CITI

RESIDENTIAL LENDING INC.; CR

TITLE SERVICE, INC.

Does 1 to 100, Inclusive

Defendants,

Case NO.: EDCV12-00640 CJC (FFMx) [San Bernardino Superior Court Case No. CIVDS 1101103] PLAINTIFF’S OPPOSITION TO COURT’S OSC IN RE DISMISSAL Hearing Date: _none ____________ Time: ____________ Courtroom: Hon. Cormac J. Carney First Amended Complaint Served: Mar. 28, 2012 Case Removed: April 26, 2012

TO THE COURT AND ALL PARTIES AND THEIR COUNSEL:

///

Case 5:12-cv-00640-CJC-FFM Document 15 Filed 05/21/12 of 35 Page ID #:697

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PLEASE TAKE NOTICE that Plaintiff OPHELIA GEORGIEV ROOP

(“ROOP”) files PLAINTIFF’S OPPOSITION TO OSC IN RE DISMISSAL.

Posture & State Court Rulings on the Case:

As a preliminary matter, Plaintiff requests that this Court rule on

Plaintiff’s remand motion as Defendants improperly removed this action without

federal question jurisdiction and failed to remove this action within 30 days after

service of the original complaint raising HAMP standards (28 U.S.C. 1446(b)(1))

(see Plaintiff’s Notice of Motion and Motion to Remand). Immediately prior to

Defendants removal, the Superior Court overruled Defendants demurrer on key

causes of action against key Defendants. The causes of action of wrongful

foreclosure (as to CitiMortgage, CitiResidential, CR Title, and Kaiser Federal

Bank), unfair business practices (as to CitiMortgage and Kaiser Federal Bank), and

promissory estoppel (as to CitiMortgage), survived Defendants demurrer in

Superior Court. The court also granted leave to amend to restate other causes of

action. Plaintiff requests this court to take judicial notice when it must and when it

may (FRCP 201; Ca. Ev. C. 451-456; 452(e)) of the state Superior Court ruling of

Judge John M. Pacheco. (see Minute Order of 02/23/2012; Notice of Removal at

Exhibit 2O at Exhibit 2). Plaintiffs timely filed a more expansive amended


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complaint to meet the court’s request for more particular and detailed facts.

Plaintiff’s amended complaint complies with the court’s order, and also satisfies

the heightened pleading standards under Federal Rules of Civil Procedure 9(b),

which require her to “state with particularity the circumstances constituting fraud

or mistake.” Fed. R. Civ. P. 9(b). Plaintiff’s allegations are sufficient to enable

defendants to “prepare an adequate answer[.]” Schreiber Distrib. Co. v. Serv-Well

Furniture Co., 806 F.2d 1393, 1400 (9th Cir, 1986); see Bosse v. Crowell Collier

& MacMillan, 565F.2d 602, 611 (9th Cir. 1977); Walling v. Beverly Enter., 476

F.2 393, 397 (9th Cir. 1973).

Dated: May 21, 2012

______________________________________

By: Richard Ivar Rydstrom, Esq.


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TABLE OF CONTENTS

I. THE NATURE & IMPORTANCE OF THE CASE………………………...1

II. ARGUMENT………………………………………………………………..3

a. Standard of Review on a Motion to Dismiss…………………………3

b. Plaintiff States a Claim for Breach of a Trial Period Plan Agreement

and Verbal Agreements, and Breach of Covenant of Good Faith …...4

i. TPP is an Enforceable Contract…………………………4

c. In this Case, the Superior Court Has Ruled that Plaintiff Has Stated

Causes of Action for Promissory Estoppel, Unfair Deceptive Business

Practices, and Wrongful Foreclosure ……………………………….10

ii. Promissory Estoppel Alleges Promises and Detrimental

Reliance………………………………………………..10

iii. Unfair Deceptive Business Practices………………….12

iv. Wrongful Foreclosure………………………………….14

d. Plaintiff States a Claim for Fraud (False Promises Without the Intent

to Perform) and Negligent Misrepresentation……………………….15

e. Plaintiff States a Claim for Violations of the Rosenthal Act (CC 1788

et seq.)……………………………………………………………….18

f. Plaintiff States a Claim for Negligence……………………………..19

g. Plaintiff States a Claim for Quiet Title……………………………...21

h. Plaintiff States a Claim for Emotional Distress……………………..22

III. CONCLUSION…………………………………………………………….24


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TABLE OF AUTHORITIES

United States Supreme Court Cases

Ashcroft v. Iqbal,

129 S. Ct. 1937 (U.S. 2009)…………………………………………………3

Erickson v. Pardus,

551 U.S. 89 (U.S. 2007)……………………………………………………..3

Lung v. Payne,

476 U.S. 926 (U.S. 1986)…………………………………………………..11

United States Court of Appeals Cases

ARCO Environmental Remediation, L.L.C. v. Department of Health &

Environmental Quality of Montana,

213 F.3d 1108 (9th Cir.2000)………………………………………………16

Bosse v. Crowell Collier & MacMillan,

565F.2d 602(9th Cir. 1977)………………………………………………...iii

Epstein v. Washington Energy Co.,

83 F.3d 1136 (9th

Cir. 1996)…………………………………………………4

Lee v. City of L.A.,

250 F.3d 668 (9th

Cir. 2001)…………………………………………………4

Porter v. Jones,

319 F.3d 483, 494 (9th Cir. 2003)……………………………………………3

Schreiber Distrib. Co. v. Serv-Well Furniture Co.,

806 F.2d 1393 (9th Cir, 1986)……………………………………………..iii


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Walling v. Beverly Enter.,

476 F.2 393 (9th Cir. 1973)………………………………………………...iii

Wigod v. Wells Fargo Bank, N.A.

No. 11-1423; 2012 WL 727646 (7th Circuit, Ill Mar. 7

2012)………………………………………………1, 2, 8, 12, 13, 18, 19, 20

United States District Court Cases

Accord Walters v. Fidelity Mortg. Of Cal.,

730 F. Supp. 2d 1185 (E.D. Cal. 2010)…………………………………….18

Allen v. CitiMortgage, Inc.,

No. CCB-10-2740, 2011 WL 3425665 (D. Md. Aug. 4,

2011)………………………………………………………………1, 5, 9, 10, 12, 23

Ansanelli v. J.P. Morgan Chase Bank, N.A.

2011 WL 1134451 (N.D. Cal. Mar. 28, 2011)…………………1, 8, 9 ,13, 20

Bosque v. Wells Fargo Bank NA,

762 F. Supp. 2d 342 (D. Mass. 2011)……………………………1, 8, 11, 13

Distor v. U.S. Bank HA

2009 WL 3429700 (N.D. Cal. 2009)………………………………………21

Durmic v. JP Morgan Chase Bank, N.A.

No. 10-cv-10380-RGS, 2010 WL 4825632 (D. Mass. Nov. 24, 2010)…8, 11

Herrera v. LCS Financial Services Corp.,

2009 WL 5062192, (N.D.Cal., Dec.22, 2009)…………………………….18

InQuote Corp v. Cole,

No. 99-cv-6232, 2000 WL 1222211 (N.D. Ill. Aug. 24, 2000)……………18


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In re Bank of America Home Affordable Modification Program (HAMP) Contract

Litigation,

No.10-md-02193-RWZ, 2011 WL 2637222 (D. Mass. July 6,

2011)……………………………………………………………1, 10, 12, 13, 18, 19

Lucia v Wells Fargo Bank

2011 WL 3134422 (N.D. Cal. 2010)………………………………………..9

Ohlendorf v. Am. Home Mortg. Servicing,

No. Civ. S-09-2081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098 (E.D. Cal.

Mar. 30, 2010)…………………………………………………………………….19

Ossman v. CitiMortgage

2012 WL 315485 (C.D. Cal., Jan. 31, 2012)………………………………..8

Turbeville v. J.P. Morgan Chase Bank

2011 WL 7163111(C.D. Cal., April 4, 2011)…………………...1, 10, 11, 12

State Supreme Court Cases

Asmus v. Pac. Bell

23 Cal.4th 1 (2000)…………………………………………………………..8

Gould v. Wise,

97 Cal. 532…………………………………………………………………21

Promis v. Duke,

208 Cal. 420 ………………………………………………………………21

Raedeke v. Gibraltar Sav. and Loan Ass’n,

10 Cal.3d 665 (1974)…………………………………………………….8, 12

State Court of Appeals Cases


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Allied Grape Growers v. Bronco Wine Co.,

203 Cal. App. 3d 432 (1988)…………………………………………..13, 14

April Enters., Inc. v. KTTV,

147 Cal. App. 3d 805 (1983)……………………………………………….10

Arce v. Kaiser Found. Health Plan, Inc.,

181 Cal.App.4th 471………………………………………………………13

Bowden v. Spiegel, Inc.

(1950) 96 Cal.App.2d 793………………………………………………….23

Bundren v. Superior Court

(1983) 145 Cal.App.3d 784………………………………………………..23

Cantu v. Resolution Trust Corp.

(1992) 4 Cal. App. 4th 857…………………………………………………23

Dimock v Emerald Props

(2000) 81 CA 3th 868………………………………………………………21

First Commercial Mortg. Co. v. Reece,

89 Cal. App. 4th 731 (2001)…………………………………………………4

House v. Lala

214 Cal.App.2d 238…………………………………………………………8

Kruse v. Bank of America

(1988) 202 Cal.App.3d 38………………………………………………….23

Laks v. Coast Federal Savings & Loan Assn.

60 Cal. App. 3d 885 (1976)………………………………………………..10

Malkoskie v. Option One Mge Corp

188 Cal. App. 4th 968 ……………………………………………………..24


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People v. Dollar Rent-A-Car,

211 Cal. App. 3d 119 (1989)………………………………………………14

Saunders v. Superior Court,

27 Cal. App. 4th 832 (1994)………………………………………………..14

Slaughter v. Legal Process,

162 Cal.App.3d 1236………………………………………………………23

State Farm Fire & Cas. Co. v. Superior Court,

45 Cal. App. 4th 1093 (1996)………………………………………….12, 16

Strathvale Holdings v E.B.H.

126 Cal. App.4th 1241……………………………………………………21

Sutherland v. Barclays American/Mortgage Corp.,

53 Cal. App. 4th 299………………………………………………………..9

Tarmann v. State Farm Mutual Auto Ins. Co.,

2 Cal. App. 4th 153 (1991)…………………………………………………16

U.S. Ecology Inc. v. State of Cal.

129 Cal. App. 4th 887 (2005)……………………………………………….12

Zellerino v Brown,

235 Cal. App.3d 1097 ……………………………………………………21

Young v. Bank of America,

141 Cal. App. 3d 108………………………………………………………24

Other Cases

Friedman & Fuller, P.C. v. Funkhouser,

107 Md.App. 91 (Md.Ct.Spec.App.1995)…………………………………5


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Statutes & Treaties & Other Authorities

15 U.S.C. §§1692 a(6)……………………………………………………………19

CA Business & Professions Code §§17200, 17203, 17500………………….2, 3, 14

CA Civil Code §§1709-1713………………………………………………………..2

CA Civil Code §2923.5 et seq……………………………………………14, 15, 17

CA Civil Code §2934a(b)………………………………………………………..15

CA Civil Code §2924 et seq……………………………………………………2, 15

CA Code of Civil Procedure §761.020a-e…………………………………….....21

Rules

Fed. R. Civ. P. 12b(6)……………………………………………………………..3

Fed. R. Civ. P.8(a)…………………………………………………………………3

Making Home Affordable HAMP Chapter 1, 3.0, 3.3………………5, 6, 8, 17, 19


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PLAINTIFF’S OPPOSITION TO COURT’S OSC IN RE

DISMISSAL


MEMORANDUM OF POINTS & AUTHORITIES

I. THE NATURE & IMPORTANCE OF THE CASE:

The case at bar deals with the so-called third level of arguments concerning

the Home Affordable Modification Program (“HAMP”) modification cases,

following the Wigod 2012 and In Re Bank of American re HAMP decisions (See

Wigod v. Wells Fargo Bank, N.A., No. 11-1423; 2012 WL 727646 at *19-29 (7th

Circuit, Ill Mar. 7 2012) (“Wigod 2012”); In re Bank of America Home Affordable

Modification Program (HAMP) Contract Litigation No.10-md-02193-RWZ, 2011

WL 2637222 at *1, 2, 3, 4 (D. Mass. July 6, 2011) (“In Re Bank of American re

HAMP”); Bosque v. Wells Fargo Bank NA 762 F. Supp. 2d 342, 351 (D. Mass.

2011); Ansanelli v. J.P. Morgan Chase Bank, N.A. 2011 WL 1134451 (N.D. Cal.

Mar. 28, 2011); Turbeville v. J.P. Morgan Chase Bank 2011 WL 7163111(C.D.

Cal., April 4, 2011); Allen v. CitiMortgage, Inc. No. CCB-10-2740, 2011 WL

3425665, at *4 (D. Md. Aug. 4, 2011)). The case at bar does not allege a “federal

private right of action” or “preemption” issues which have already been decided by

the courts. It is not a case alleging “standing” as a “third party beneficiary” to the

Servicing Participation Agreement (“SPA”) with the U.S. Treasury. The HAMP

law did not create a “federal private right of action.” The gravamen of Plaintiff’s


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DISMISSAL


causes of action in her First Amended Complaint (“FAC”) are strictly based in

California statutory law [California Civil Code §§1709-1713 (fraud, deceit,

negligent misrepresentation); B&P §§17200, 17203, 17500 (unfair business

practices); California Civil Code §§ 2924 et. seq. (California foreclosure law)]. It is

precisely because HAMP does not have a federal private right of action that

Plaintiff may use HAMP standards as an ingredient to support its state causes of

action. The federal courts have held that:

“Where there is no private right of action under a federal statute, a

violation of the federal HAMP standard as an element of a state tort

cause does not prevent state law from providing a cause of action based

in whole or in part on violations of the federal (HAMP) law.”

(emphasis added) (Wigod v. Wells Fargo Bank, N.A., No. 11-1423;

2012 WL 727646 at *19-29 (7th Circuit, Ill Mar. 7 2012) (“Wigod

2012”).

In fact, the United States Court of Appeals (in Wigod 2012 at *19) held:

“We reject this “end-run” theory, along with Wells Fargo’s formal

preemption arguments. Federal law does not displace Wigod’s state-

law claims.” (Emphasis Added)

This dispute relates to Home Affordable Modification Trial Period Plans or

“TPPs.” TPPs were designed to provide a trial period of reduced mortgage

payments as part of the process for qualifying for a permanent mortgage

modification under the federal HAMP. Plaintiff alleges that she complied with all


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DISMISSAL


terms of the TPP and was therefore entitled to a permanent modification, which

Defendants failed to honor. The parties invoked HAMP standards by promises and

as part of the bargain by contract; not as a “federal private right of action” or third

party beneficiary.

II. ARGUMENT

a. Standard of Review on a Motion to Dismiss

“To survive a motion to dismiss for failure to state a claim under Rule

12(b)(6), a complaint generally must satisfy only the minimal notice pleading

requirements of Rule 8(a)(2).” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003).

Specific facts are not necessary; the statement need only give the defendant fair

notice of what the…claim is and the grounds upon which it rests.” Erickson v.

Pardus, 551 U.S. 89, 93 (2007). To overcome a 12(b)(6) motion, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, (2009).

When considering a 12(b)(6) motion, a court is generally limited to considering

materials within the pleadings and must construe “[a]ll factual allegations set forth

in the complaint…as true and …in the light most favorable to [the plaintiff].” See


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DISMISSAL


Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)(citing Epstein v. Washington

Energy Co., 83 F.3d 1136, 1140 (9th

Cir. 1996)).

b. Plaintiff States a Claim for Breach of a Trial Period Plan

Agreement and Verbal Agreements, and Breach of Covenant of

Good Faith

i. TPP is an Enforceable Contract

"In order to state a claim for breach of contract, Plaintiff must allege "the

existence of the contract, performance by the plaintiff or excuse for

nonperformance, breach by the defendant and damages." First Commercial Mortg.

Co. v. Reece, 89 Cal. App. 4th 731, 745 (2001). Plaintiff alleges the existence of

two verbal trial period plan agreements as oral executed agreements (Cause of

Action #8) and a written agreement (Cause of Action #7), breach of those

agreements and breach of the implied covenants of good faith by Defendants

(Cause of Action #14) (FAC pg. 52; FAC at pg. 56), which caused Plaintiff

damages. Defendant, CitiMortgage, by and through Patti Booker, offered a verbal

trial period plan agreement (“TPP”) to Plaintiff for a HAMP modification (FAC

pg. 56, Para. 193). The terms of the agreement required Plaintiff to make “three

(3) timely monthly payments of $2,226.00 beginning with the initial payment due

on May 10, 2009 and ending on July 10, 2009.” (FAC pg. 56, Para. 193). The

terms of the agreement also consisted of Defendants’ promise to grant Plaintiff a


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DISMISSAL


permanent modification if “…[Plaintiff’s] [financial] representations continued to

be true and accurate in all material respects” upon Plaintiff’s successful completion

of the TPP. (FAC pg. 56, Para. 193). “Borrowers are not required to sign or return

the TPP Notice.” (Emphasis Added) [Chapter I: MHA Handbook v3.3 88]. The

parties expressly and specifically agreed that their oral contract will be performed

within one year; thus, the Statute of Frauds will not bar Plaintiff’s claims. Allen;

Friedman & Fuller, P.C. v. Funkhouser, 107 Md.App. 91, 666 A.2d 1298,

1304(Md.Ct.Spec.App.1995). Plaintiff accepted Defendants’ offer by fully

performing all terms under the agreement (FAC at pgs. 56-60). Pursuant to HAMP

standards:

“…The servicer’s receipt of the first payment due under the TPP

Notice on or before the last day of the month in which the first

payment is due (TPP Offer Deadline) is evidence of the borrower’s

acceptance of the TPP Notice and its terms and conditions…”

(Emphasis Added) [Chapter I: MHA MHA Handbook v3.3 89]

Plaintiff alleges that she fully performed by making all three required

payments of $2,226.00 timely - ($2,226.00 in May 2009 (check #1650); $2,226.00

in June 2009 (check #1654); $2,226.00 in July 2009 (check #1657)). (FAC at pg.

57, Para. 195). Plaintiff also alleges that her representations remained true and

correct, and that she provided Defendants all required documentation. (FAC at pg.


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DISMISSAL


56-57). However, Defendants breached promises to grant her a permanent

modification upon her successful completion of the trial period plan . Plaintiff

alleges in pertinent part that Defendants “failed to honor and breached its

promises…” (FAC at pg. 57, Para. 196). Rather than granting Plaintiff a

permanent modification as promised, Plaintiff alleges that “… on or about July 16,

2009, 2:25pm, Ted (CitiMortgage representative) granted Plaintiff a second Trial

Period Plan (TPP).” (FAC pg. 52, Para.174: Lines 23-26). HAMP standards

require the servicer to convert the TPP into a permanent modification:

“…Borrowers who make all trial period payments timely and who

satisfy all other trial period requirements will be offered a permanent

modification…” (emphasis added) [Chapter I: MHA Handbook v3.3

88].

On or about July 16, 2009, 2:25pm, Defendants, by and through Ted, entered

into a second verbal Trial Period Plan (TPP) agreement with Plaintiff promising to

offer Plaintiff a permanent loan modification if Plaintiff made another “…three (3)

payents in a reduced amount of $1338.81 with the initial payment due on August

16, 2009, and ending on October 16, 2009.” (FAC pg. 57 at Para. 197). Plaintiff

alleges that she “again fully performed her promise to make all three (3) timely

payments…” (FAC pg. 57 at Para. 199). “On or about September 2009, after

speaking with Maurice at CitiMortgage at 877-838-3787, Plaintiff was promised


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DISMISSAL


over the telephone that the agreement for the permanent loan modification has

been sent.” (FAC at pg. 53, Para 178). Plaintiff alleges that: “Plaintiff did receive

a written contract for her signature for what Plaintiff believed to be the promised

permanent modification agreement.” (FAC at pg. 53, Para. 173). Plaintiff alleges

that: “Believing the document to be the promised permanent modification

agreement, Plaintiff signed and returned to Citi the written contract and all other

documents requested in the package on or about October 5, 2010 by UPS (tracking

# 1Z3W529E8740262409). Plaintiff later learned, however, that instead of

sending Plaintiff the promised permanent modification, Defendants mailed

Plaintiff, and Plaintiff signed a third Trial Period Plan on or about September 10,

2009. (FAC at pg. 58, Para. 201). Plaintiff also mailed a seventh check for the

agreed amount of $1338.81 (check #1667) for her November 2009 payment,”

(FAC pg. 53, Para. 179), requiring Defendants to grant a permanent loan

modification and forebear from foreclosing on Plaintiff’s home (FAC pg. 54, Para.

185).

Defendants breached the contract when they failed to honor the terms of the

TPP, grant a permanent modification and initiated the foreclosure process on

Plaintiff’s home (FAC pg. 54, Para. 183, Para. 187, Para. 188). Defendants’ reason


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DISMISSAL


for failing to fulfill their end of the contract was that its investors (Kaiser) did not

participate in MHA (HAMP). (FAC at pgs. 7-8). However, Defendants had a duty

under HAMP to review all servicing agreements to determine investor

participation in HAMP within 90 days of executing the SPA (FAC pg. 54, Paras.

183, 184; FAC pgs. 33-34, Paras. 101, 108). Plaintiff alleges that Defendants

caused damages to her (FAC pg. 55, Paras. 189, 204, 205) by breaching the terms

of the TPP, and denying her a permanent modification when Defendants knew or

should have known prior to placing Plaintiff into two trial period plans that its

investor, Kaiser, was not participating in HAMP. Moreover, “[t]he requirements

of the TPP all constitute new legal detriment.” (Durmic v. JP Morgan Chase

Bank, N.A. No. 10-cv-10380-RGS, 2010 WL 4825632 at *12 (D. Mass. Nov. 24,

2010); Id. at 24; See Ansanelli, at 4 (N.D. Cal. Mar. 28, 2011); House v. Lala 214

Cal.App.2d 238, 243; Raedeke v. Gibraltar Sav. and Loan Ass’n, 10 Cal.3d 665,

673, 111 Cal.Rptr. 693, 517 P.2d 1157 (1974); Asmus v. Pac. Bell 23 Cal.4th 1,

31-32; Bosque at *6. The courts have held that there is sufficient consideration to

enforce trial period forbearance promises and agreements Wigod 2012, at *8;

Ossman v. CitiMortgage (2012 WL 315485)). By promising to comply with the

terms of the TPP the Plaintiffs exposed themselves to greater liability for interest


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DISMISSAL


and late charges (and increased principal balance, attorney fees and costs, and lost

default options) should the permanent modification not be issued. (Lucia v Wells

Fargo Bank (2011) WL 3134422, at 5 (N.D. Cal. 2010); (Allen, at *10). “As the

complaint includes, sufficient factual allegations that there was valid consideration

for the agreement, the complaint states a claim for breach of contract as to the trial

period plan theory of liability. Defendant’s motion to dismiss this theory is

Denied.” Ansanelli at section C. Breach of Contract and Covenant of Good Faith

and Fair Dealing (N.D. Cal. Mar. 28, 2011).

Implied Covenant of Good Faith: Plaintiff alleges a cause for breach of

implied covenants of good faith and fair dealing (FAC pg. 68-69). In every

contract there is an implied covenant of good faith and fair dealing by each party

not to do anything which will deprive the other parties of the benefits of the

contract, and a breach of this covenant by failure to deal fairly or in good faith

gives rise to an action for damages. Sutherland v. Barclays American/Mortgage

Corp., 53 Cal. App. 4th 299, 314. The covenant imposes on each party to the

contract the duty to refrain from doing anything which would render performance

of the contract impossible by any act of his own, and also the duty to do everything

that the contract presupposes that each party will do to accomplish its purpose.


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April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 816, (1983). Plaintiff’s

allegations are sufficiently plausible to survive a motion for dismiss. Turbeville at

*4, 5; Allen at B. Plaintiff alleged sufficient consideration for breach of a TPP

contract. In re Bank of America HAMP at B. TPP Plaintiffs at 1, 3.

c. In this Case, the Superior Court Has Ruled that Plaintiff Has

Stated Causes of Action for Promissory Estoppel, Unfair Deceptive

Business Practices, and Wrongful Foreclosure

i. Promissory Estoppel Alleges Promises and Detrimental

Reliance

Plaintiff alleges a cause of action for promissory estoppel (Cause of Action

#11; FAC pg. 61). The elements of a promissory estoppel claim are “(1) a promise

clear and unambiguous in its terms; (2) reliance by the party to whom the promise

is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the

party asserting the estoppel must be injured by his reliance.” Laks v. Coast Federal

Savings & Loan Assn. (1976) 60 Cal. App. 3d 885, 890. Plaintiff alleges that “if

she paid the trial period payments, she would get a permanent modification.” (FAC

at pg. 5, Para. 11: lines 10-12). Plaintiff alleges that she “relied upon these

statements … and repeatedly sending documentation as requested.” (FAC at pg. 5,

Para. 11: lines 13-16). Plaintiff alleges at FAC pg. 6, Para. 16: “… Ted told

Plaintiff that … she did qualify for a second Trial Period Plan… in a reduced

amount of $1338.81 … she would receive the written agreement for the permanent


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DISMISSAL


Making Home Affordable (HAMP) loan modification contract for her signature in

October 2009.” Plaintiff alleges at FAC pg. 6 at Para. 17: “Plaintiff again fully

performed…” At FAC pg. 6-7, Para. 19 Plaintiff alleges: “Plaintiff did receive a

written contract for her signature for what Plaintiff believed to be the promised

permanent modification agreement. Plaintiff signed and returned to Citi the

written contract and all other documents…” Plaintiff also mailed a seventh check

(FAC at pg. 5-8, Para. 11-29; FAC at pg. 12 Para. 42; FAC at pgs. 28-36 at Para.

82 Scheme 2: False Promises and HAMP Modification Fraud). “An essential

element of any estoppel is detrimental reliance on the adverse party’s

misrepresentations.” Lung v. Payne, 476 U.S. 926 cited by Turbeville at *3

“Promissory Estoppel”; Bosque at *4 citing Durmic at *5, 12. Plaintiff alleges

“Perversely, Plaintiff’s acceptance of the assistance of Citi and Kaiser left her in a

far worse financial position, facing massage arrearages, undisclosed fees, damaged

credit, depleted cash, and fewer options than before she was misled by such false

promises of a permanent loan modification.” (FAC at pg. 16, Para. 50; FAC, pg.

17, Para. 52: lines 5-10). Plaintiff’s reliance and detriment is sufficient

consideration to form binding agreements requiring Defendants to honor its

promises. Turbeville. As a result of Defendant’s promises, Plaintiff’s reliance


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DISMISSAL


thereon, she suffered detriment. U.S. Ecology Inc. v. State of Cal. 129 Cal. App. 4th

887, 901 (2005); Allen at section *D (Count III) (p.5); Turbeville at 5; Wigod 2012

at section B “Promissory Estoppel” p.28-29 (“A lost opportunity can constitute a

sufficient detriment to support a promissory estoppel claim (Wood v. Mid-Valley

942 F.2d 425, 428). Finally, California law recognizes that a detriment

constituting consideration includes “expenditure of time and energy.” Raedeke, 10

Cal.3d at 673. Plaintiffs allegations are sufficient to maintain the promissory

estoppel cause. Wigod 2012; In re Bank of America HAMP at 2. Promissory

Estoppel (D. Mass. July 6, 2011).

ii. Unfair Deceptive Business Practices

Failure to honor plaintiff’s eligibility for a HAMP modification and

knowingly concealing the lack of the “investors” participation in HAMP, are

sufficient predicates for finding an unfair or deceptive business practice in

California. Statutory causes of actions require an underlying tort, public policy or

statute (HAMP) violation. State Farm Fire & Cas. Co. v. Superior Court, 45 Cal.

App. 4th 1093, 1105, (1996). Plaintiff’s FAC alleges statutory causes of actions,

including Rosenthal (FAC at pg. 69-72), HAMP violations, etc. and underlying

torts of fraud, breach of contract and violations of public policy. Plaintiffs allege


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DISMISSAL


actual fraud on the part of Defendants (FAC pgs. 24-37). Violations of §17200

need not be both fraudulent and unfair; the test under §17200 is that a practice

merely be unfair and that the public is likely to be deceived. Allied Grape Growers

v. Bronco Wine Co., 203 Cal. App. 3d 432, 451 (1988). “[A] systematic breach of

certain types of contract…can constitute an unfair business practice under UCL.”

(Arce v. Kaiser Found. Health Plan, Inc., 181 Cal.App.4th 471, 490) Plaintiff

alleges that Defendants common plan and scheme intended to defraud Plaintiff out

of her permanent HAMP modification (FAC pgs. 45-47, Paras. 146-148, etc.):

“She also alleges that Wells Fargo dishonestly and ineffectually

implemented HAMP, and that this conduct constituted “unfair,

immoral, unscrupulous business practices.” (Wigod 2012 at section F

p47-50 citing In re Bank of America Home Affordable Modification

Program (HAMP) Contract Litigation, No.10-md-02193-RWZ, 2011

WL 2637222 at *5-6 (D. Mass. July 6, 2011) (multi-district litigation)

(denying motion to dismiss claims under fourteen states, consumer

protection acts…”

Defendants conduct caused injury and damages. In re Bank of America HAMP at

section 4 citing Bosque; Ansanelli at Section G p.6-7. Plaintiff’s Complaint alleges

an underlying tort of fraud, breach of contract and violations of public policy

(FAC pgs. 24-37; FAC pgs. 52-60). In 1992 the Legislature broadened §17200 to

cover a single business “act” as well as a business “practice.” Unlawful conduct

may include any business act forbidden by civil, criminal, federal, state, municipal,


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DISMISSAL


statutory, regulatory or court-made law. Saunders v. Superior Court, 27 Cal. App.

4th 832, 839 (1994). Violations of §17200 need not be both fraudulent and unfair;

the test under §17200 is that a practice merely be unfair. Allied Grape Growers at,

451; People v. Dollar Rent-A-Car, 211 Cal. App. 3d 119 (1989).

iii. Wrongful Foreclosure

Plaintiff alleges a cause of wrongful foreclosure (FAC pgs. 37-45) and that

Defendants acted in concert to wrongfully obtain Plaintiff’s title and possession of

her home. Plaintiff alleges various specific violations of California foreclosure law

including, but not limited to allegations at FAC pgs. 20-28, Para. 71. For example,

the dates on Notice of Trustee Sale (“NOTS”) are a physical impossibility. The

NOTS was recorded on “1/5/11” but it wasn’t signed until “1/10/11” by CR Title

Service, the new trustee claiming rights via a failed and void Substitution of

Trustee (FAC at pg. 26, Para. 74). On this ground alone, the notice of trustee sale

(NOTS) is defective and void on its face. Moreover, Defendant CR Title Services

knowingly violated CA Civil Code §2923.5 et seq. when Defendant CR Title

Services recorded a false Notice of Default Declaration, signed by robo-signer Pam

January (FAC at pg. 21, Para. 56). The Notice of Default recorded on 6/8/10 by

Defendant CR Title Services is void as it contains false statements in violation of


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DISMISSAL


B&P §17500 for making and disseminating false statements. In the 2923.5

Declaration signed by Pam January on 12/21/09, the NOD represents its due

diligence under CC 2923 stating that Pam January contacted Plaintiff on 10/5/09

and informed her that she was facing foreclosure and had the right to a follow-up

meeting in 14 days. Plaintiff did not speak to Pam January – as this event did not

occur. The declaration is false (FAC at pg. 21, Para. 56). Defendants failed to

comply with required notices, mailings, postings and publications pursuant to

Plaintiff’s mortgage note agreement and deed of trust, and California statutory

foreclosure requirements, including but not limited to California Civil Code

(“CC”) Sections 2924 et seq., 2934a(b), CC 2923 et seq., as prerequisites to

schedule, sell or perfect a non-judicial foreclosure sale on the subject home.

Plaintiff also alleges California foreclosure law violations at FAC pg. 74 at Para.

266 and at FAC pg. 24-28, Paras. 71-81.

d. Plaintiff States a Claim for Fraud (False Promises Without the

Intent to Perform) and Negligent Misrepresentation

Plaintiff alleges fraud and promises without the intent to perform.

Plaintiff alleged detailed allegations of Defendants fraudlent conduct with

particularity (FAC pgs. 24-37, and at Para. 82 “Scheme 2: False Promises and

HAMP Modification Fraud,” Para. 71 “Scheme 1: CA Foreclosure Fraud”).


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DISMISSAL


Further, Plaintiff alleges specific names of the persons who made the

misrepresentations, their authority to speak for the corporation, as employees or

supervisors, to whom they spoke to, what they said or wrote, and when it was said

or written. Tarmann v. State Farm Mutual Auto Ins. Co., (1991) 2 Cal. App. 4th

153, 157. Plaintiff has alleged in pertient part as follows:

“Citi and Kaiser entered into negotiations with Plaintiff for a workout of

her loan and made a series of representations to Plaintiff during the

workout phase, including statements that if she paid the trial period

payments, she would get a permanent modification. She was later

contacted and asked to pay another three payments, for which she fully

complied. Plaintiff relied upon these statements and complied with them

by making all such payments and repeatedly sending documentation as

requested. Citi and Kaiser have breached its duty of good faith and fair

dealing by misleading Plaintiff into believing that a workout could be

achieved and that if she complied with their trial period promises, she

would obtain a permanent modification.” (FAC at pg. 28, Para. 82)

Plaintiff contends that Defendants CitiMortgage, CitiResdiential and Kaiser

Federal Bank’s conduct was false and materially deceptive, and that unfair

business trade practices were used to conceal the true nature of the transaction. To

wit, at FAC at pg. 28, Paras. 83, 84:

a. The alleged servicer CitiMortgage, by and through Patti Booker and

Ted, represented and falsely promised Plaintiff that upon her

successful completion of two verbal trial period plans Plaintiff would

be granted a permanent loan modification agreement.

b. The alleged servicer CitiMortgage, by and through Maurice, falsely

represented that the written agreement for a permanent loan


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DISMISSAL


modification was sent to Plaintiff for her signature to be returned to

CitiMortgage.” (FAC at pg. 29, Para. 84)

“Contrary to all Defendants’ promises and representations, as stated, the

true facts are that: a. DEFENDANTS CitiMortgage, CitiResidential, and

Kaiser Federal sent Plaintiff a third Trial Period Plan on or about

September 10, 2009, rather than the promised permanent modification; b.

Citi and Kaiser failed to provide and concealed from Plaintiff with a

timely decision to reject her TPP or permanent modification, since they

accepted all three trial period payments and rejected her fourth payment

after she fully performed all required of her under the TPP; c.

DEFENDANT CitiMortgage and CitiResidential knew that its investor

Kaiser Federal Bank did not participate in the HAMP program prior to

making the promises of granting the HAMP trial period plan agreements.

Defendants were in possession of and had actual (advance) knowledge of

the terms and conditions of its Pooling & Servicing Agreements (“PSA”),

Investors Agreements, Making Home Affordable (“MHA”)

Agreement(s) with the United States Treasury, Supplemental Directives

of the (mandatory) Regulations of MHA (HAMP) programs, California

2923 Exemption/Application attesting compliance with MHA (HAMP),

Trust or REMIC agreements, or other related agreements, policies, or

investor positions on MHA (HAMP) (HAFA), etc., which allow for or

require conduct contrary to Defendants alleged conduct;d. DEFENDANT

CitiMortgage was acting without the required state (CA) license or

exemptions during the time of their false promises and wrongful acts; e. DEFENDANT Kaiser Federal was aware of CitiMortgage’s false promises and wrongful conduct as evidenced by Sue Long’s call to Plaintiff requesting that all documents be submitted to Kaiser

Federal Bank directly, only to then deny Plaintiff a traditional in-house

loan modification through CitiMortgage. Moreover, through Sue Long’s

conduct, Kaiser Federal Bank cooperated by acting in concert to

accomplish a common and unlawful plan.” (FAC at pg. 29-30, Para. 87)

“Plaintiff’s reliance on the representation: Plaintiff justifiably relied on

Defendants’ false promises and representations as Plaintiff could have

taken the path of “efficient breach” and defaulted immediately rather than

executing the Trial Period Plans and making trial payments (FAC at pg.

32, Para. 91). “Contrary to all Defendants’ promises and representations,

as stated, the true facts are that DEFENDANTS sent Plaintiff a third Trial


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Period Plan on or about September 10, 2009, rather than the promised

permanent modification.” (FAC at pg. 32, Para. 100)

Citi knew or should have known that its contractual arrangements with its investors

did not allow HAMP participation by Kaiser (FAC at pg. 28, Para. 81) (FAC at pg.

30, Para. 88); Wigod 2012, at *13[26][27]; InQuote Corp v. Cole, No. 99-cv-6232,

2000 WL 1222211, at 3(N.D. Ill. Aug. 24, 2000). Plaintiff alleges proximate injury

caused by reliance on defendants representations (FAC at pg. 34, Para. 111).

e. Plaintiff States a Claim for Violations of the Rosenthal Act (CC

1788 et seq.) Plaintiff alleges a state Rosenthal cause of action (FAC at pgs. 69-72,

Paras. 245-253). Defendants and each of them were attempting to collect money as

“debt collectors” under the RFDCPA (In re Bank of America HAMP at *4). “As a

number of courts have recognized, the definition of ‘debt collector’ is broader

under the Rosenthal Act than it is under the FDCPA, as the latter excludes

creditors collecting on their own debts.” See Herrera v. LCS Financial Services

Corp., 2009 WL 5062192, at 2 (N.D.Cal., Dec.22, 2009). Thus, a mortgage

servicer may be a “debt collector” under the Rosenthal Act even if it is the original

lender, whereas, such an entity would be excluded from the definition of debt

collector under the federal act. (emphasis added) See Herrera. 2009 WL 5062192,

at 2.8. Further, a mortgage servicer is a debt collector. Accord Walters v. Fidelity


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DISMISSAL


Mortg. Of Cal., 730 F. Supp. 2d 1185, 1203 (E.D. Cal. 2010) (letters, calls and

attemtps to collect mortgage payments are efforts to collect consumer debts under

the RFDCPA); Wells Fargo Bank N.A. No.C-10-01667, 2011 WL 30759 *19-*20

(N.D. Cal. Jan. 3, 2011; Ohlendorf v. Am. Home Mortg. Servicing, No. Civ. S-09-

2081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098 (E.D. Cal. Mar. 30, 2010); see also

In re Bank of America HAMP. Moreover, if the debt was in default at the time it

was assigned, section 1692(a)(6) of the FDCPA indicates conclusively that

Defendants are in fact “debt collectors” under the RFDCPA. Frison v. Accredited

Home Lenders, Inc., 2011 U.S. District LEXIS 31276 at 17. Plaintiffs debt was in

default beginning on or about January 2009, before it was assigned to U.S. Bank

National Association from BNC Mortgage, Inc., a Delaware Corporation on or

about April 16, 2010. Moreover, Plaintiffs allege that Defendants had no right to

title at the time of their wrongful debt collection activities because Defendants

were in violation of HAMP regulations, which prohibit foreclosure during HAMP

“evaluations” and “escalations.” [Chapter II: HAMP MHA Handbook v3.0 52-53].

f. Plaintiff States a Claim for Negligence

In the U.S. Court of Appeals case of Wigod 2012, at *25, the court

established that federal HAMP violations impose a duty by law, and a violation of

same would constitute negligence (or negligence per se) under state law. Once a


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DISMISSAL


servicer signs the Servicer Participation Agreement (“SPA”) with the U.S.

Treasury, HAMP makes it mandatory to comply with all HAMP regulations and

duties enunciated therein and all federal and state laws (HAMP Handbook 3.3.;

3.2, 3.1, 3.0 and all Supplemental Directives; Helping Families Save Their Homes

Act of 2009 (Pub. L. No. 111-12, 123 Stat. 1632)). HAMP was designed to

standardize industry practices regarding mortgage loan modifications, and is

required to be used unless specifically prohibited by the governing pooling and

servicing agreements. Defendants must comply with HAMP and all other federal

and state laws (FAC pgs. 13-20; incl. Paras. 45-47, 54).

Plaintiff alleges that Defendants acted to breach their standard duty of care

owed to Plaintiff as set forth consistent with or by analogy to the case of Wigod

2012 (FAC pg. 14, Para. 46) and Ansanelli. Defendants went “beyond its role as a

lender and loan servicer” to offer an opportunity to Plaintiff for loan modification

and to engage with her concerning the trial period plan. “This conduct is “beyond

the domain of a usual money lender” and “Plaintiffs’ allegations constitute

sufficient active participation to create a duty of care to Plaintiffs to support a

claim for negligence.” (Ansanelli, at 4 at Section E, “Negligence”). Plaintiff

alleges sufficient facts to demonstrate that Defendants owed and breached a legal


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DISMISSAL


duty when Defendants misrepresented HAMP standards because Plaintiff was

entitled to the permanent modification after the first TPP, and certainly after the

second TPP. Defendants went beyond its role as a lender and loan servicer to offer

an opportunity to Plaintiff for loan modification when Defendants knew or should

have known that its investor Kaiser was not participating in HAMP.

g. Plaintiff States a Claim for Quiet Title

A void or false-in-fact title or trustee sale (and trustee’s deed upon sale) that

is procured by mistake or fraud are void and a legal nullity that do not require

tender. A void or rescinded trustee sale and trust deed upon that sale is a nullity in

fact, and cannot be enforced. (Emphasis Added) (Promis v. Duke, 208 Cal. 420 ;

Gould v. Wise, 97 Cal. 532; Dimock v Emerald Props (2000) 81 CA 3th 868;

Strathvale Holdings v E.B.H. 126 Cal. App.4th 1241). If bank does not hold good

title, it cannot enforce it. Zellerino v Brown, 235 Cal. App.3d 1097, 1109.

Plaintiff’s verified complaint states (1) a description of the property in question, (2)

the basis for Plaintiff’s title, (3) the adverse claims to plaintiff’s title, (4) the date as

of which the determination os sought, and (5) a prayer for determination of

plaintiff’s title against the adverse claims (CCP 761.020 (a-e); Distor v. U.S. Bank

HA 2009 WL 3429700, 6 (N.D. Cal. 2009) (FAC pgs. 60-61, Paras. 208-209).


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DISMISSAL


Plaintiff alleges a Slander of Title cause of action (FAC pgs. 47-52). Plaintiffs

allege CA statutory violations which tend to prove that the Notice of Default and

Notice of Trustee’s Sale instruments are wholly void, making Defendant’s

procurement of the foreclosure process wrongful and invalid (FAC pgs48-52, Para.

158 Scheme 1: CA Foreclosure Fraud). Furthermore, the procurement of

foreclosure procedures have been wrongful, as Defendant’s have engaged in fraud,

mistake and false pretenses, which constitutes a false disparagement of Plaintiff’s

title, “harm or impair the marketability, salability, or vendibility of Plaintiff’s

peropty or title” as alleged in Plaintiff’s Complaint. (FAC pgs.47-48, Paras. 154-

157). Defendant’s continued conduct of making false disparagements of Plaintiff’s

title within the public records constitutes malice, which is an essential element of

slander of title (Gudger v. Manton, (1943) 21 Cal. App. 2d 537, 541), and therefore

Plaintiffs properly alleged a claim for slander of title.

h. Plaintiff States a Claim for Emotional Distress

Plaintiff has alleged facts of extreme and outrageous conduct by Defendants

in Scheme 1 and Scheme 2 (FAC pg. 62, Para. 218) .

“Plaintiff suffered a naturally ensuing emotional distress which is

severe and resulted in physical injuries from Defendants conduct,

which is continues to date. Plaintiff incurred highly unpleasant

emotional reactions, including nightmares, ear bleeding, months of

excruciating pain in the right side of my head and face, depression,


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DISMISSAL


lumps on neck, fainting, preclusion of permission to fly on airplane,

fright, shock, anxiety, fear, humiliation, embarrassment, apprehension

and terror from Defendants conduct.” (FAC at pg. 63 Para. 221) and

“Plaintiff was under medication for conditions related to Fibre Myalgia

and or Atrial Fibrillation (FAC pg. 3 Para. 4).

A physical injury is no longer required for recovery for emotional distress

(Slaughter v. Legal Process, 162 Cal.App.3d 1236). In the area of collection

practices, California recognizes that a creditor’s qualified privilege to protect its

economic interest may be lost if the creditor uses outrageous and unreasonable

means in seeking payment. (Bundren v. Superior Court (1983) 145 Cal.App.3d

784, 789-790); see Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67 [banks

have right to pursue their financial interest but not in an impermissible manner];

Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793, 795) Such conduct may rise to

the level of outrageous conduct where the creditor knows the debtor is susceptible

to emotional distress because of her physical or mental condition. (Bundren at p.

790). The assertion of an economic interest in bad faith is not privileged. (Cantu v.

Resolution Trust Corp. (1992) 4 Cal. App. 4th 857, 888). Allen at *10 and fn.14

(D. Md. Aug. 4, 2011) (allowing emotional distress damages). Defendants’

conduct was outside the normally required conduct within the foreclosure scheme.

This conduct is also beyond the conduct of the irregularities in the “foreclosure


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DISMISSAL


proceedings” – these are questions of facts of knowledge, concealment and fraud

for jury determination (Malkoskie v. Option One Mge Corp 188 Cal. App. 4th 968

at 2). Moreover, Plaintiff alleges physical injuries (FAC pgs. 62-64). Thus,

Defendants knew that Plaintiffs have/had a medical condition, and therefore, such

conduct has gone beyond “all reasonable bounds of decency” and may rise to the

level of outrageous conduct. (Bundren, at 789-90). Here, Plaintiff has sufficiently

plead facts, when taken as true, that fulfill each element of a cause of action for

intentional infliction of emotional distress. Young v. Bank of America, 141 Cal.

App. 3d 108.

III. CONCLUSION:

Plaintiff respectfully requests that this Court deny the OSC In Re Dismissal.

_________________________ By: Richard Ivar Rydstrom, Esq.

Attorney for Plaintiff


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PROOF OF SERVICE ATTACHMENT

STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the County of ORANGE, State of California. I am over the age of 18 and am not a party

to the within action. On ____05/21/2012______, I served the document described as PLAINTIFF’S

OPPOSITION TO COURT’S OSC IN RE DISMISSAL on each interested party, as follows: ERIC EVERETT HAWES KELLY ANDREW BEALL

State Bar No. 135514 State Bar No. 162456

PEREZ & HAWES LLP DAMIAN P. RICHARD

21300 Victory Boulevard State Bar No. 262805

Suite 820 WOLFE & WYMAN LLP

Woodland Hills, CA 91367 2301 Dupont Drive, Suite 300

(818) 884-3991 – Phone Irvine, CA 92612-7531

(949-)475-9200

[ ] BY MAIL: as follows:

[X] FEDERAL – I deposited such envelope in the U.S. Mail at Orange County California, with postage

thereon fully prepaid. I am readily familiar with the firm’s practice for collection and processing of

correspondence for mailing with the United States Postal Service. I am aware that on motion of the party

served, service is presumed invalid if postal cancellation date or postage meter sate is more than one day

after the date of deposit for mailing in affidavit.

[X] BY ELECTRONIC ACCESS: Purusant to Electronic Filing Court Order, I hereby certify that the above

document(s) was uploaded to the Roop v. CitiMortgage, Inc., et al. website and will be posted on the

website by the close of the next business day and the webmaster will give e-mail notification to all parties.

[ ] BY CERTIFIED MAIL as follows: I am “readily familiar” with Rydstrom Law’s practice for the

collection and processing of correspondence for mailing with the United States Postal Service; such

envelope will be deposited with the United States Postal Service on the above date in the ordinary course of

business at the business address shown above; and such envelope was placed for collection and mailing, by

Certified United States Mail, Return Receipt Requested, on the above date according to Rydstrom Law’s

ordinary business practice.

[ ] BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by hand to

the offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M.

[ ] BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by overnight

courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly

maintained by the overnight courier service with delivery fees paid or provided for.

[ ] BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the

addressee listed above, by use of facsimile machine telephone number. The facsimile machine used

compiled with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to

California Rules of Court, Rule 2006(d), a transmission record of the transmission was printed.

Executed on date first referenced above, at Orange / Los Angeles County, California. [ ] STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct.

[X] FEDERAL: I declare that I am employed in the offices of a member of the State Bar of this Court at whose

direction the service was made. __________________________________________ (Signature)


Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal

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Transcript of Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal