Professional Documents
Culture Documents
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OF CALIFORNIA
CENTRAL DISTRICT
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Plaintiffs,
DEFENDANTS' NOTICE OF
MOTION AND MOTION FOR
RELIEF FROM JUDGMENT
FEDERAL
RULES OF CIVIL PROCEDURE
AND RELIEF FROM DEFAULT
UNDER RULE 55(c);
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
UNDER
Funding and
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RULE 60(b) of
THEREOF
55(c) )
(FRCP.Rules60(b) and
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CTRM: "14"
8, 2010
TIME: 10:00 a.m.
Defendants.
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DATE: November
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ActionFiled: June 25, 2009
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PARTIES:
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be heard in Courtroom" 1 4" of the above-entitled Court, defendants Chase Bank USA,
of
Federal Rules of
soon
thereafter
Civil Procedure
"Defendants") wil move this Court for Relief from the Default Judgment entered on
and
. Excusable neglect of
. Attorney negligence is an
Defendants' counseL.
of
Defendants and
did
of the
For the same reasons, under Rule 55(c) ofFRCP, Defendants wil move this
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Court
because the
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Counsel for
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requirements
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DATED: October
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grounds
of
Local
Rule
for this
5,2010
7-3.
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Rule
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MOTION FORRELlEF FROM
1152634.2
DEFAULT JUDGMENT
TABLE.OF CONTENTS
Page
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I. SUMMARY OF ARGUMENT....................................................................... 1
II. STATEMENT OF RELEVANT FACTS........................................................3
A. Subject Loan..........................................................................................3
RELIEVED
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FROM
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V. CONDUCT
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ENTRY
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~?~ullfJJJL~fEs~~~d~~~~lJ~rn~~~.?~..........ll
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VII. CONCLUSION..............................................................................................12
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WOULD
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LEVEL OF
CONDUCT THAT
,...
DEFENDANTS' COUNSEL
OF DEFENDANTS OR
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1
NO
1152634.2
TABLE OF AUTHORITIES
Page
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3
Cases
Brf4fF~3d ~~~~2~6f7th.iff~(8)...............................................................................6
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R04t7f!S~1;~s16T(i98r~~~~....................................................................................10
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666 F .2d 414, 416- 17 (9th Cir.1982) .......... ..... .......... ............ ............................. 10, 11
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TCi4~11d i~ ,I696r~the;~2QB~~~~~~~~............................................................... 1 1
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Statutes
15 USC l635(b)...........................................................................................................9
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Rule 55(c) of
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Rules
FRCP Rule 60(b ).........................................::............................................................6, 11
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TABLE OF AUTHORITIES
Page
FRCP Rule 60(b )(1) ... ..... ....... ..... ....... ........ .................. ............ ..... ................ ................1 i
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iii
NOIICE OF MallON AND MalIaN 10 DISMISS COMPLAIN I
1152634.2
Defendants Chase Bank USA, N.A. ("Chase Bank") and Chase Home Finance
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LLC ("Chase Home," and collectively "Defendants'l) hereby submit the following
memorandum of points and authorities in support of their Motion for Relief from
of Civil Procedure ("FRCP") and their Motion to Set Aside Default under Rule 55( c)
ofFRCP.
Federal Rules
ARGUMENT
I. SUMMARY OF
On August 23, 2010, the Court entered default against Defendants because of
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their counsel's failure to file required pre-trial documents and because of a perceived
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lack of compliance with certain prior orders (See, Pacer Docket NO.1 15).
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cancel
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foreclosure of
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separate occasions.
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. Defendants' failure to
this matter
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Magistrate JudgeWistrich
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As a result of the
default
Defendants on
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the reasons set forth below, Defendants respectfully request that they
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"excusable neglect" of
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reasons.
issued a default
be relieved from
First, with respect perceived failure to comply with the order to cancel
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foreclosure, the Court acknowledged in its January 26, 2010 order that the foreclosure
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trustee, Loanstar, when forward with the foreclosure despite having been advised by
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Defendants' counsel that it was enjoined from doing so. With respect to the second
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I occasion on or about June 28, 2010, the foreclosure notice
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the Spring of 20 1 0, including written discovery, and it was not until the depositions of
Plaintiffs in late May
were dismissed by Plaintiffs who may bear responsibility for the acts giving rise to
Plaintiffs' lawsuit. Defendants' counsel did initially contact the clerk for Judge
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light of
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factual disputes with the Plaintiffs, it was necessary to undertake discovery. This
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to complete the settlement conference lies with Defendants' counsel, not the
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Defendants.
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Third, the failure to file a pretrial conference statement is the result of the
Defendants' counseL. As noted in documents
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agreement to seek the continuance of trial in order to bring into the case
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The mistake by Defendants' counsel was the failure to file the motion to continue trial
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at an earlier time iii the action. Theparties were in agreement that these other
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Plaintiff
had reached an
certain other
parties,
resolution of this matter. It should be noted that Defendants were not the only party
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by the Court.
For the reasons set forth above, Defendants respectfully request the Court to set
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aside the default judgment, and allow the parties to litigate this matter on the merits.
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11/
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MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
FACTS
A. Subject Loan
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with the property located at 16141 Quartz Street, Westminster, California 92683
trust encumbering the
Subject Property that was recorded with the Orange County Official Records on
identifies Chase Bank as the lender and Plaintiffs as the borrowers. See, Request for
Motion to Dismiss the First Amended
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Deed of Trust ("NOD") was recorded pursuant to the DOT on March 19, 2009 with
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the Orange County Official Records as instrument number 2009000131 148 due to
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Exhibit 2. A Substitution of
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pursuant
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the
Deed of
DOT. See
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on
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2009000215727. All beneficial interest under the DOT was assigned to IPMorgan
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Foreclosure
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foreclosure sale of
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the
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Pacer Docket 99. However, in its Order of January 26, 2010, the Court recognized
submitted to the Court evidence that they took measures to comply with its order to
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Specifically, on November
proceedings.
16,2009, their counsel sent an email to Loanstar's counsel, notifying Loanstar that the
foreclosure proceedings and instructing them to
The second foreclosure was initiated on June 28, 2010 but rescinded on July 8,
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in its Order, "Defendants Chase Bank USA, N.A. and Chase Home Finance LLC have
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the foreclosure.
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filed a motion
2010 - two days after Paul Nguyen contacted Defendants' counseL. This inadvertence
by Defendants was remedied within six
days of
being
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C. Defendants'Failure to
File Status
Status of
ReportRegarding
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Settlement Conference
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the
Defendants' counsel,
is the
fault of
actual
Defendants'
schedule
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was the fault of Defendants' counsel by not filing a status report regarding the
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a settlement conference. However, this was an oversight, and not done intentionally
May 31,2010. d. It
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MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
status of
The case was in active discovery during the Spring of 20 1 0, including written
discovery, and it was not until the depositions of Plairitiffs in late May 2010 that it
became apparent that there were other parties who were dismissed by Plaintiffs who
D. Agreement Between
Date
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Plaintiffs' lawsuit. d.
Plaintiffs and
Defendants toFileCross-Contplaint
and Allow
on May 28,2010,
the deposition of
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documents. Based on
because Mrs.
as originally noticed.
Defendants
besides
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Plaintiffs' deposition
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Joseph Cao Son Tran, Angel Tran,SydneyFunding,and Nexus Escrow, Inc. may be
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Company ("Fidelity") to
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claim to Fidelity
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Defendants to file
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accept
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to allow
a cross-claim against
Plaintiffs is
expressly
Pretrial
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MOTION FOR RELIEF FROM
1152634.2
DEFAULT JUDGMENT
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again reiterating his intention to agree to a stipulation to
proposed cross-complaint and the proposed stipulation to continue the trial date.
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date
of
on August
Conference
the Pretrial
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statement was due to Defendants' mistaken understanding that the parties would
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continue the trial date and allow Defendants to prosecute the cross-claims.
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The Default Judgment was entered against Defendants on September 15, 2010.
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FILE
PRE-
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DUETO "EXCUSABLE
NEGLECT"
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judgment. If
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the moving party can show "mistake, inadvertence, surprise or excusable neglect," the
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court may set aside a judgment. FRCP 60(b). A Rule60(b) motion must be brought
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of Ed., 143 F.3d 293, 296 (7th Cir. 1998). Thus, this
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Motion is timely.
neglect" are:
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CD the reason for the delay, including whether it was within the
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The Supreme Court stated that all relevant circumstances must be taken into
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Employee Painter's Trust v. Ethan Enterprises, Inc. 480F.3d 993, 1000 (9th Cir.
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2007).
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Additionally, the
Ninth Circuit
has expressed
judicial
a . strong
preference for
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" Id.
allow
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the
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an email confirming his agreement to continue the trial and leave for Defendants to
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7
MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
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1.
because Plaintiffs have not made any payment under the subject loan since December
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.)
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Once the default judgment is set aside, Defendants wil be ready for trial within
a week of
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have forfeited
their
decision maker's
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consent or knowledge. In
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minimum,
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Paul Nguyen
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fact,
in
Laura
Nguyen's reply
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stated "she
was a
stranger to
of
decision
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mistaken understanding of
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pretrial
conference
statement was
because the
due to the
parties would
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Defendants' failure was not the result ofany malice, devious intent, or bad faith failure
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to comply with any court order. Thus, Defendants' failure to file a pretrial conference
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MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
OF THEIR COUNSEL
default can be set aside for "all other reasons that justifies relief." Some courts treat
relief under Rule 60(b)( 6). An unknowing client should not be held liable on the basis
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of
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statement would not be necessary. Defendants should not suffer the Draconian result
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of a default judgment wherein the Loan proceeds in the sum of $250,000 are forfeited,
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and also be required to pay in excess of$58,000to Plaintiffs under 15 USC 1635(b)
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iv. DEFENDANTS
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v. CONDUCT OFDEFENDANTSORDEFENDANTS'COUNSELDID
file a
pretrial conference
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the
FRAUDULENT OR INTENTIONAL
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NOT
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CONDUCT THAT
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DEFAULT JUDGMENT
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Rule 60(b)( 4) states that the Court can provide arelief from a judgment if the
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RISE
TO
THELEVELOF
WOULD.
WARRNT
judgment is void.
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there are limits to the court's inherent power. In this regard, the court in Televideo
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Systems, Inc. v. Heidenthal, 826F.2d 915,916-917 (9th Cir. 1987) states that the court
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has inherent powers to dismiss cases or enter default judgments for failure to
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MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
1
.I
Inc. v. Piper 447 U.S. 752, 764 (1980). However, there are limits to the court's
,.
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inherent power to do so. The need for the orderly administration of justice does not
permit violations of due process. See Phoceene Sous Marine, s.A. v. Us. Phosmarine,
Inc., 682 F.2d 802,805-06 (9th Cir.1982) (recognizing that wilful deceit and conduct
utterly inconsistent with the orderly administration of justice would merit the
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finding
the controversy
the sanction was inconsistent with due process. The decision was based principally on
the notion that a party should not be deprived of his opportunity to defend based on
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Seaboard Corp., 666 F.2d 414,416-17 (9th Cir.1982) (finding that a default
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that
Exchange Commission v.
udgment
a violation of
(1897) (finding that courts may not strike an answer and enter a default merely to
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merits of
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which
lead to the
Corp., 666
F.2d at 416-17.
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Here, the Court entered default against Defendants based on the Court's
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to
certain
set forth
above, Defendants' failure to comply with the Courtorder was not intentional and was
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pretrial conference statement, such a failure was a result of the mistaken belief that the
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their due
of
process right to defend against the claims asserted by Plaintiffs based on the factors
unrelated to the merits of the case. The cases identified above hold that even a
conduct that may be in contempt of the court would not warrant a default being
the totality of
s.A. v. Us. Phosmarine, Inc., 682 F.2d at 805-06; Securities and Exchange
has to be
orderly administration of justice.
Defendants respectfully state that their inadvertence in this case does not rise to
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the level of intentional conduct that relates to the merit of the case that would warrant
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SHOULD
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DEFAULT. SHOULD
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August
BE SET. ASIDE
THE ENTRY OF
RULE .55(c)
entered
default
as
standard for
set aside the entry of default for "good cause.." Inthe9thCircuit, the
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"good cause" to set aside the default is the same standard as the "excusable"
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(9thCir. 2001).
Circuit has
expressed
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full
of
default
accordance
and,
if
that: "For
a judgment
good cause
by
default
has
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Because the standard is the same under RuleS 5( c) as Rule 60(b)( 1), for the
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reasons state above, Defendants respectfully request that the default entered on August
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VII. CONCLUSION
For on the foregoing reasons, Defendants respectfully request that the Court
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grant their Motion, and set aside the default that was entered on August 23, 2010 and
S.CHRISTOPHER YOO
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MOTION FOR RELIEF FROM DEFAULT JUDGMENT
i i 52634.2
OF S.CHRISTOPHERYOO
DECLARATION
1. I am a member with the law firm of Adorno, Yoss, Alvarado & Smith, a
Home")
the
State of
and
California
this District.
before
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knowledge, to
Declaration.
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foreclosure sale of
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Defendants to actually
Defendants
and
cancel foreclosure
of the
filed a motion
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they
order to
any related
Loanstar' s counsel,
No. 105.
but rescinded on
July 8, 2010 - TWO days after Paul Nguyen contacted Defendants' counseL. This
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Plaintiffs. Attached hereto as Exhibit "A" isa true and correct copy of
within six
days of
the Notice of
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being contacted by
Rescission ofNotIce of uefault executed on July 8, 2010 by NTIex West LLC and
County Recorder's Office. In tct, this issue was resolved without the necessity of
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Mr. Nguyen.
then on,
due to
inadvertence,
my
the actual settlement conference was not scheduled prior to May 31, 2010. This
failure was my fault. However, this issue was addressed with Mr. Nguyen at his
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August 23,
2010. However, judge Wistrich did not want to schedule a settlement conference once
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of a settlement conference
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had
passed
as of
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or maliciously
done intentionally
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claim was filed and the third parties were brought into the lawsuit. The case was in
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until the depositions of Plaintiffs in late May 2010 that it became apparent that there
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Plaintiffs who
an
Responsibility for
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1152634.2
Mrs. Nguyen was not available for deposition on May 21, 2010, as originally noticed.
After the depositions, it became apparent that the other parties besides Defendants
Joseph Cao Son Tran, Angel Tran, Sydney Funding, and Nexus Escrow, Inc. may be
responsible for possibly forging Ms. Nguyen's signature. Thus, on May 27, 2010, my
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the title
has not
yet accepted the title claim. I was.hopeful that Fidelity would accept the title claim,
and
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Defendants of
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Defendants'
and relieve
counsel
costs in this
action.
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7. Since
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expressly acknowledged
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to
and
file
Nexus
agreement by
Plaintiffs is
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in Plaintiffs'Responseto Order
8 In fact,
to Show
Paul
Cause
("OSC") Re:
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again reiterating
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proposed cross-complaint
and the
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proposed stipulation to continue the trial.date. Because Plaintiffs had objections to the
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complaint.
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9. Up to the date of
1152634.2
that the trial date would be postponed to allow Defendants to file a cross-complaint
against certain third parties so that the entire matter could be resolved in one lawsuit.
The failure to file the pretrial conference statement was due to my mistaken
understanding that the parties would continue the trial date and allow Defendants to
prosecute the cross-claims. Our office's failure to file a pretrial conference was not
the result of any malice, devious intent, or bad faith failure to comply with any court
order.
10. Attached hereto as Exhibit "E" is a true and correct copy of an email
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dated August 31, 2010 from Paul Nguyen setting forth all loan payments made by him
under the subj ect loan. As indicated in the August 31, 2010 email, the last payment
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December 17,2008.
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the United States of America that the foregoing is true and correct.
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4
MOTION FOR RELIEF FROM DEFAULT JUDGMENT
1152634.2
EXHIBIT A
9.00
217405 N38 1
0.000.000.000.000.000.000.000.00
APN #: 107-903-44
Property A.ddress:
16141 QUARTZ ST
WESTMINSTER, CALIFORNIA 92683
111111111111111111111111 11111111111111111111111111~I11111111111111111111111111
RND20100187502242
land therein as more fully described on the above referenced deed of trusC
Whereas, the present beneficiary under that certain Deed of Trust herein above described, recorded a Notice of
Default and Election to Sell. Said Notice was R~corded on 06/2R/2010 as Instrument No, 2010000303698 in
NOW; THEREFORE, NOTICE IS HEREBY GIVEN THAT: the present Beneficiary andlor the Trustee,
and/or the agent of the Trustee, does hereby rescind, cancel and withdniw siid Notice of Brcach and Notice of
Default and Election to Sell; it being understood, however, thar this rescission shall nol in any manner be
coiistn.ied as waiving or alTecting any breach or defaultnisti present or tunire under said Deed of Trust, or as
impairing any right or remedy thereunder, but is, and shall be deemed to be, only
not t(1 cause a sale to be made pursuant to said Notice, and shall no iviy jcopardize or impair any right, remedy or
privilege secured .to the Beneficiary
and/or the Trustee, under said Deed of Trust, nor modifY nor
alter in any
respect any of the terms, covenants, conditions or obligations thereof, and said Deed of Trust and all obligations
secured thereby are hereby reinstaied and sh,,1I he and rei",iin in fmce and effcct the same as if said Notice of
Breacli and Notice of Default and Election to Sell had not been made and given,
DATED: 07/08/20iO
Page lof1
ORANGE,CA
Document: RE 2010.328766
Page 1 of 1
9.00
217405 N38 1
0.000.000.000.000.000.000.000.00
APN #: 107-903-44
Propert Address:
16141 QUARTZ ST
RND20100187502242
Whereas, thc present beneficiary under that certain Deed of Trust herein above described, recorded a
Notice of
Default and Election to SelL. Said Notice was Recorded on 0612812010 as Instrument No. 2010000303698 in
NOW; THEREFORE. NOTICE is IlEREBY GIVEN THAT: the present Beneliciary nnd/or the Trustee,
andlor the agent of the Trustee, does hereby rescind, cancel and withdrmv said
Default and Election t Sell; it being understood, however, that this resdssion shall nt in any
construed as waiving or affecting any breacb or default past, present at future under
manner be
impairing any right or remcdy thereunder,but is, and shall be deemed to be, only an clection. without prejudice,
not to cause a sale to he made pursuant to said Notice, and shall no way jeopardize orinipair nny right,
remedy r
privilge secured .to the Beneficiary and/or the Trustee, under said Deed of TlUst, nOr modify nor alter in any
respect any
of the terms, covennnts, conditions or obligations thereof, and said Deed of Trust and all obligations
secured 'hereby are hereby reinstated and shall be and remain in force lind effect the same ~s if said Notice of
Breach and Notice or Default and Election to Sell had not been made and given.
By:
Randy Midc;le~on
Pa~e I of I
ORANGE,CA
Document: RE 2010.329423
Page 1 of 1
EXHIBITB
To:
Cc:
Subject:
Except for January 7, 2010, all other dates are opened for me. Please let me know time, date and location. I
believe Judge Matz required Notice Filing of this date also.
On Mon, Nov 16, 2009 at 6:52 AM, Christopher Yoo ~cyoo("adorno.com? wrote:
and
me the
available dates
settlement conference:
January 7,11,14,21, and 28,2010.
Let us know if
these dates work for you or you would like additional dates in February or March 2010.
XHIBITC
CALIFORNIA
1 MacArthur Place
Suite 200
Santa Ana, California 92707
FLORIDA
GEORGIA
MASSACHUSETIS
MISSOURI
NEW JERSEY
NEW YORK
www.adorno.com
TEXAS
WASHINGTON
WASHINGTON, D.C.
Tuyet T. Tran
(714) 852-68DD
ttran@adorno.com
May
27, 2010
VIAFEDEx
Fidelity National Title Insurance Company
Attn: Claims Department
obtained
Quartz
in the Orange County Official Records ("DOT"). The DOT identifies Chase Bank as the lender,
and Piaintiffs as the borrowers.
enforceability of the DOT is being disputed by
._____~Eiaintiffsjn.JLiaw.suit fi1Qdinfu~JJnitedSJ.at~s Central Distrigt Court andentitled,J-=aul Ngiy,l?l'_
As explained below, the validity and
and Laura Nguyen v. Chase BnkUSA, N.A., et al.,Case No.CV09-4589 AHM (AJWx). A
the Second Amended Complaint ("SAC"), which is the operative complaint, is enclosed
copy of
for your reference in regard to the title claim stated in this letter.
1130552.1
purortedly forged onto the DOT and other documents related to the Loan. See, SAC,,r,r 49-57.
against
Plaintiffs subsequently defaulted on the Loan and foreclosure proceedings were initiated
the Subject Property.
Based on the purported forgery, Plaintiffs have fied the SAC alleging claims for "fraud
by forgery," "rescission and damages pursuant to 12 U.S.C. 1635, etseq.," "damages pursuant
to 12 U.S.c. 2607," "unfair business practices," "quiet title," and "preliminary injunction."
the DOT due to the alleged forged signature on the
See, SAC. In short, Plaintiffs seek to rescind
pursuant to the
allegations, and
DOT and other documents related to the Loan. Based on these
Fidelity
defense of this action to
terms of the subject title policy, Chase Bank hereby tenders its
losses sustained by Chase Bank as a result of the claims made
and requests indemnity against all
by Plaintiffs.
Upon your receipt of this Notice of Claim, please contact the undersigned to
Fidelity wil honor its
policy and accept this claim.
acknowledge Fidelity's receipt of this claim and to let us know whether
Sincerely,
ii
'/..'~Ur____
"j; V .V
Tuyet T. Tran
Enclosure
1130552.1
FILO
1 PAUL NGUYN
NGUYN
LAUR
WESTMISTER, CA 92683
2009HOV 23 PM 2: 00
CLERK i u.s. DiSTRICT COURt
CEHTR At D1sr. onrA lifo
LOS ANGELES
4 Plaintiffs
In Pro Persona
BY
6
7
8
UNITED STATES
DISTRICT COURT
9
10
i'
1 1
Plaintiffs,
14
v.
15
16 .
17
20' Defendants.
21
22
24
(hereinafter "Plaintiffs" or "NGUYEN") file this civil action alleging that their
II
26
ii
27
II
28
1.
4
("RESPA") case in which Plaintiff
enter into a loan and PAUL NGUYEN and his wife LAUR NGUYEN
executed a deed of trst encumbering their home ("Mortgage Loan") through the
7
use of
Lending Act and the Real Estate Settlement Procedures Act, as well as state
10
12
13
Procedures Act
14
and its implementing Reguiation, were concealed from the NGUYEN. Nor were
15
notices of
16
17
the transaction within the time period required by law, all in violation of
PLAINTIFFS' clearly established Tights under federal and state. statutory and
18
19
intentionally forged the signature of
20
21
Plaintiff
of Trust and other documents related to the Mortgage Loan with the intention of
knowing
from
22
23
24
conditions of
25
the MOligage
Loan by using the forged Deed of Trust as the basis for arguing that the
26
... YlaintiifLJight tQ. re~c;ind th~~M2ijgag~ Lq(.!li:I!gerJederal J:~VI~h~g~~pir!a:
27
28
- 2-
2.
This action seeks rescission ofthe Mortgage Loan and statutory, compensatory,
state rights.
3.
punish and set example for the wrongful conduct in violating federal and state
6
7
The NGUYEN also seeks punitive damages against the Defendants in order to
The NGUYEN also seeks reasonable costs oflitigation, including, but not
limited to, attorneys' fees.
10
1 1
L i
5.
12
13
This action arises under 15 U.S.C. 1635,12 C.F.R. 226,15 U.S.C. 2601
and 2614, 12C.F.R. 3500, and under California statutory and common law.
6.
14
This Cour has jurisdiction over the Federal c1aimsin this action based on 18
U.S.c. 1331 and 1343 and 42 U.S.C. 1983 which confer original
15
16
17
are
18
19
20
21
23
venue properly lies in this District, pursuant to 12 U.S.c. 2614 and 28 U.S.C.
24
26
27
22
25
1391(b).
II
II
II
28
- 3 -
PARTIES
2
3
Plaintiff
8.
Plaintiff
California, and the real propert secured by a deed of trst under the Mortgage
6
7
8
10
Defendants
9.
1 1
.l.l
12
13
10. Plaintiffs are informed and believe, and thereon allege, that Defendant Chase
Home Finance LLC ("Chase Home Finance") is a wholly owned subsidiary of
14
conducting business in
15
California. Plaintiffs are informed and believe that Defendant Chase Home
16
17
18
1 1. Plaintiffs are informed and believe, and thereon allege, that Defendant First
American Loanstar Trustee Services ("Trustee Services") whose exact business
19
20
California. Plaintiffs are informed and believe that Defendant Trustee Services
21
the
22
23
27
Chase Bank.
Cao Son Tran, a licensed real estate broker and Notary Public which licenses
26
agent of
12. Plaintiffs are informed and believe, and thereon allege, that Defendant Joseph
24
25
an
herein acting on behalf ofhil1self, Sydney Funding, Nexus Escrow and Realty
. Savers.andis_auJlent a~1illg on behalf of Chase Ban, was conductil1g~"L~11~a~.
in California.
28
-4-
13. On
7
8
Plaintiff
to herein.
referred
and happenings
licensed under California laws asa mortgage broker and possessed expertise as a
10
to serve as Plaintiff
that qualified
11
and to
12
Plaintiff
financial
Paul Nguyen's
Paul
to explain to
13
Plaintiff
mortgage loan.
14
out the
15
loan application and met with Defendant JosephSonCao Tran multiple times to
16
17
offices.
18
never
19
20
21
documents
provided Plaintiff
22
Defendant Chase Bank.
23
18. Plaintiff
Paul Nguyen
24
iather than as joint tenant with Plaintiff
25
19. On or about December 7, 2007,
26
loan as an individual
Laura
Nguyen.
27
28
- 5 -
20. Up to December 7, 2007, Defendant Joseph Son Cao Tran didnot provide
Plaintiff
121. Neither Defendant Joseph Son Cao TrannOl SYDNEY FUNDING disclosed the
4
5
6
7
Plaintiff
LAURA NGUYEN
Plaintiff
10
11
PAUL NGUYEN.
12
25.
13
Plaintiff
14
TIL
meaning of
15
26.
16
17
Plaintiff
Laura Nguyen
On
Plaintiff
Laura
Laura Nguyen
20
Tran or received two
signature of
Trust.
28.
forged
or about
18
19
aranging the
(2)
copies of a Notice of
'" 1
"' 1
22
23
Plaintiff
purported signatures of
24
25
26
loan is forgeries which included the deed of trust in connection \vith the
Mortgage Loan and were affixed on said documents by Defendants.
.30.;-A-&-a-fesult.Gf.the.~f.ailure-of.Chae-tQ-pm:v:ide-alLoLthedisclsllIes.r.equired hy_
27
state and federal law, and as a result of
28
- 6-
the Mortgage
2
3
their rescission of the loan under TILA and offer to tender. Additional copies
were also sent via U.S. Post certified mail to Chase Home Finance LLC, c/o
First American Loan Star Trustee Services and JP Morgan Chase Bank, NA clo
7
8
13, 2009, Plaintiffs again sent via U.S. Post certied mail,
Again, on April
10
33.
believe, and
11
12
by federal law and that, in furtherance of
Form required
Lending Disclosure
13
Laura
Plaintiff
14
Deed of
15
16
17
18
19
34. That the Mortgage loan entered into is a federally related mortgage loan as that
at 12 U.S.C.
Estate Settlement Procedures Act
the Real
term is defined in
2602(1).
35. Defendants Chase Bank USA, N.A.; Chase Home Finance, LLC; First American
Loanstar Trustee Services; and Joseph Son Cao Tranare individuals and
20
22
36. In addition to acting as the mortgage broker andChase's agent in the transaction
24
Tran also acted as
25
NEXUS ESCROW in
27
and
23
26
credit
offer or extend
ri i
.. 1
signatures.
Trust or authorized
said
connection
with
the
disclosed to the Plaintiffs thatthe entity acting as Mortgage Broker would also
28
. 7 -
be acting as the Settlement Agent and would be receiving fees and other fuds in
the final
4
5
Plaintiffs are informed and believe, and thereon allege, that Chase gave and
value
Sydney Funding accepted and received fees, payments and other things of
6
7
in return for the referral of the Mortgage Loan by Sydney Funding to Chase.
Such giving accepting of the settlement agent fees and other things of value in
8
return for the referral of
10
1i
12
acted as broker in arranging such mortgage loan ilegally acted as notary public.
38. Plaintiffs are informed and believe, and thereon allege, that because of the
13
forgery of
14
because of
15
16
Plaintiff
Disclosure to the Plaintiffs prior to the closing of the Mortgage Loan, the value
services
of Sydney Funding's mortgage brokeringservices and its settlement
17
18
provided by its wholly owned subsidiary, Nexus Escrow, was $ 0.00. Plaintiffs'
further allege that, since Sydney Funding and its subsidiary were paid and
19
received a fee from Chase as mortgage broker in excess of$lO,OOO.OO, such
20
payment to Sydney Funding and its subsidiary represented payment for services
" 1
"' 1
22
23
24
25
26
Tran, NEXUS ESCROW, John Nguyen and Joseph Son Cao Tran for
performing broker services that were not actually performed and Chase's
payment of that fee for broker activities represents an unlawful kickback and/or
-.uBgamed-fee-uuder-RSEAbe.cause_tlie.amQllnt received by these Defen~(l?-t~
27
28
-8-
2
3
4
5
6
7
and paid by Chase was not reasonably related to the performance of lawful
services.
40. Plaintiffs are informed and believe, and thereon alege, that Chase should have
mown that Sydney Funding, Sidney Tran, Nexus Escrow, John Nguyen, and
Joseph Son Cao Tran did not earn the broker fees because common industr
practices are that lenders follow underwting standards that demand a review of
know that
originations by mortgage brokers and, therefore, lenders typically
10
1 i
12
13
14
15
16
brokers have performed the services required and in a lawful manner. Plaintiffs
are informed and believe, and thereon allege, that if Chase had reviewed the loan
Sydney Funding was not properly performng its role as a mortgage broker.
41. Plaintiffs also allege that neither Sydney Funding, Sidney Tran or Joseph Son
Cao Tran ever offered Plaintiffs the option to pay a lower amount of settlement
Funding would also be performng services as the Settlement Agent through its
17
18
19
42. The agency responsible for enforcing RESPA. and its implementing regulation,
20
Regulation X, the United
21
22
23
24
part test for determning the legality of certain lender payment to mortgage
brokers under RESP A as follows:
(1) Vlhether goods or facilities were actually furnished or the servi ces were
25
actually furished or the services were actually performed for the
26
...... ---oompensatioll-paid,-and;----
27
28
-9-
(2) Whether the payments are reasonably related to the value of the goods or
2
performed.
43. In 2001, BUD clarified its interpretation of 2607(a) and (b) when it issued its
5
Policy 2001-1 entitled Clarification of
RESPA Statement of
Policy 2001-1.)
BUD's 2001- 1 Policy of Statement explains that the second prong of its two-part
test to determne the legality of lender payments to mortgage brokers may not be
10
satisfied when the loan brokers does not offer the borrower the option to pay a
ii
13
knowingly and wilfully conspired and agreed among themselves to commt the
14
acts described of
15
16
17
did the acts and things herein alleged
18
conspiracy and
19
Policy
12
Statement of
46.
above-alleged agreement.
20
22
23
24
25
26
27
48. In conspiring and acting in concert as herein alleged, Chase, either directly or
... . ... ..throughth-GGnduct,authoriz;ation~or~ratification..y_a Chase~QfficeL~din:~ctQi'9I.
managing agent, acted wilfully and with the intent to cause injury to the
28
- 10 -
conscious
6
FOR
FIRST CLAIM
(Against
10
above.
11
RELIEF
12
13
15
Plaintiffs.
51. The forgery by Chase and/or its agents was undertaken as part of a scheme to (i)
16
prevent
terms
the true
17
18
19
terms and
that the
21
22
believe, and
23
24
other dOCll'Tents related
25
forged signatures
27
MortgageLoan
had expired.
of Trst and
and
and
and
Mortgage Loan
26
14
of
the Plaintiff
signature of
of
28
- 11 -
undertaken to further the fraud of concealng from the Plaintiffs the true teims
2
and conditions of the Mortgage Loan and to thereafter create and unlawful
Plaintiffs in the
event the Plaintiffs discovered the tre terms and conditions of the Mortgage
6
7
federal law.
53.
The forgery
of
intent to deceive Plaintiffs and to deprive them of their rights under California
10
12
Plaintiff
concealment from PlaintIff of the tre terms and conditions of the Mortgage
13
Loan, Plaintiffs were unaware of the fact that her signature had been, or were to
14
15
16
Trust, in
Plaintiff
11
their rights of
Loan and were unaware of the tre terms and conditions of the Mortgage Loan.
55.
the
17
18
the
19
disc1
0 sure under
the Truth-in-Lending as
20
Trust for the fraudulent purpose of
21
depriving the
22
law in the event the Plaintiffs learned the true terms and provisions of
23
Mortgage Loan.
24
56.
the signature of
Chase and/or its agents intentionally forged
25
Deed of
26
Trust and
27
28
- 12 -
57. The aforementioned acts, omissions, and fraud by forgery conducted by Chase
and/or its agents alleged above were fraudulent, malicious and oppressive
4
disregard of
Plaintiffs' rights, so as to
7
SECOND
RELIEF
CLAIM FOR
8
and
10
58. Plaintiffs re-allege and incorporate by reference in this Claim for Relief each
11
above.
12
59. The Mortgage Loan is subject to the federal Truth-in-Lending Act and its
13
14
Mortgage Loan, Paul Nguyen, is an
15
16
proceeds for
17
borrowed was, and is, subject to a
18
finance
charge and
is to be repaid in 5 or more
19
20
22
Damages
23
24
Because of
the
Regulation Z, Chase and its agents were required to deliver tothe Plaintiffs,
Right to CanceL. Chase and
among other things, Good Faith EstIiiiate,Notice of
26 I
2 71-- .~~~Plajntiffbaura-Nguyen-;~.-~~ . . ... ... ..... ...~--_.. . . ~~_._~~~~~
161. Therefore, the right to rescind the Mortgage Loan is extended to three-years.
28
- 13 -
62.
Chase Home Finance, and Trustee Servces of rescission of the Mortgage Loan
6
7
64. As a direct and proximate result ofDefendants failure to take action in response
10
FOR
THIRD CLAIM
RELIEF
11
Chase
(Against Defendant
12
for
13
65.
Home
Damages
14
64 above.
15
66. The Mortgage Loan is a federally related mortgage loan and is subject to the
16
and
17
18
19
20
21
22
23
Regulation X.
67.
Request ("Qw'R") via U.S. Post Certified lvfail with return receipt to Chase
24
LLC to identify Plaintiff
25
DOES 1 - 50
Finance,LLC, and
Paul
Nguyen's
loan
information of the loan, specifically accumulated late charges and fees despite
.----- 26 _ .----Platntiflsvali-NticeofRescission-of.tli.e-lofrIl-fIldofferto-teIlGer.-
27
28
- 14 -
70.
requested Defendant Chase Home Loan, LLC as servicer of the loan to make
necessary correction to the loan such as late charges and fees, accounting of
payment made to date and costs associated with foreclosure so that proper
7
8
73. Because the Mortgage Loan is subject toRESPA and Regulation X, all
10
11
6 violations
12
13
by Regulation X and 24
14
of
15
upon receipt
16
of
17
18
19
the correction.
20
c. Failure to
protect
the borrower,
Plaintiffs'
credit rating
upon
receipt of Plaintiffs
"QWR"
21
by continuing to fuish adverse information regarding payment to credit
22
603 of
23
24
75.
25
by Chase Home Finance,
26
, . 1
dl lHdi.
27
28
- 15 -
RELIEF
1
FOURTH
CLAIM FOR
2
3
(Against Defendant Chase, Chase Home Finance, LLC; Joseph Son Cao Tran;
Practice - Business
to CaliorniaUnair Business
4
5
76. Plaintiffs re-allege and incorporate by reference in this Claim for Relief each
6
7
8
9
the Mortgage Loan and to the damage of
resulting in consummation of
10
i1
Plaintiffs
12
Real Estate Settlement Procedures Act as set forth herein and the allegations of
13
14
15
Trust.
16
80. Such unfair, fraudulent and deceptive acts and omissions, and violation of state
17
18
common law and California Business & Professions Code i 7200, et seq.
19
20
21
22
through discovery.
81.
23
describe above, as well as the result of
24
25
practices as described above, this Defendant has been and wil be unjustly
enriched.
26
.82 ;-piain-f'f-s,pursuaIlt-to-CalifOll1ia-Riisinss&llQIessiQilsC~de 1 7 ~Q~,_s.~eJ~ an_...
27
order of
28
- 16 -
Plaintiffs as a
due to the
property
result of the unfair business practices alleged herein, and compelling this
Defendant to:
5
and
identified herein and/or its agent as a result of the wrongful acts as alleged
of California
10
herein and/or its
11
unlawful business
practices
herein; and
alleged
12
c. To take steps
13
and
all
deeds of
14
Mortgage Loan.
15
83.
of
to restitution
16
money
funds
17
wrongful actions and
18
19
21
wrongful actions
22
27
23
26
Defendants
25
alL
agent.
20
24
conduct of
property.
, 85.
as
Pursuant to federal1aw, Defendants indentifiedherein, acting
a lender, owed
violated those statutory duties and, as a result thereof, took advantage of its
28
- 17 -
relationship with the Plaintiffs and has been, and is being, unjustly enriched
2
3
thereby.
87. As a direct and proximate result of the breach of fiduciary duties, these
Defendants have been unjustly enriched, and the Plaintiffs have been damaged
88. These Defendants, in commtting wrongful acts described herein, acted with
8
Plaintiffs' rights.
9
FIFTH
10
FOR
CLAIM
RELIEF
il
and
DOES 1-50
12
89. Plaintiffs re-allege and incorporate by reference in this Claim for Relief each
13
14
15
16
17
8977, IN
18
19
20
COUNTY
21
COUNTY.
22
23
92. Plaintiffs claim title to the Property and seek an order from the Court confirming
24
25
their title.
93. Chase and First American Loanstar Trustee Services claims title to the Property
26
27
RECORDER OF SAID
.by-vrttie-oforged-deed-of-trw;t-andvoided-deed-oLtrust-------94.
this complaint.
28
- 18 -
RELIEF
FOR
SIXTH CLAIM
3
and Trustee
4
5
INJUNCTION)
96. Plaintiffs reallege and incorporate by reference in this Claim for Relief each
this Court,
Plaintiffs move
pursuant to Rule
12
Civil
14
should
16
Federal Rules of
13
15
the
11
65 of
10
PRELIMINARY
Services For
in the NGUYEN
property;
17
c. Plaintiffs are likely to prevail on the merits of their claims;
18
19
requested injuncIon, inasmuch
20
21
22
as the cost to
any such transfer is negligible when compared to the potential harm the
Plaintiffs face if they lose their dwelling and property prior to these
proceedings ending.
23
24
25
28
- 19 -
2
3
3. For Plaintiffs' reasonable attorneys' fees and costs necessar to obtain these
relief;
4. For rescission of
6
7
9
10
1
7. For an order of
12
unlawful, unfair,
13
14
15
16
17
18
fraudulent and/or
9. For an order that this Defendant involuntary trstee for the proceeds and
property resulting from Chase and/or its agent's wrongful actions of all
acquired by them;
money, proceeds and propert wrongfully
19
lO.For declaration and order that this Defendant release and re-convey any deed
20
of trst or other document signed or entered into and subsequently recorded in
21
Mortgage
Loan;
22
23
entered into by either or both of
24
25
26
27
loan;
12.For an order requiring this Defendant to return allI1ol1ies, proceeds, payrreiits,
.. funds,-revenues,-f-ees-and-theJike-acquiredIromeitheLPlaintiff(l~UlI~Sl11t QfQ:r
28
- 20 -
2
3
4
5
6
7
8
9
10
11
LauE%~
12
13
14
VERIFICATION
15
16 I verify that the foregoing Verified Second Amended Complaint has been
are true and
19 I declare under penalty of peijury that the foregoing is true and correct.
.~
22
23
24
u_--t~-
25
26
.. .. ,
27
28
- 21 SECOND
VERIFIED AMENDED
COMPLAINT
Page 1 of 1
(800)683-7648
ovemitooxpres .m - MSIE
8.0
Case 2:09-cv-04589-AHM-AJW
Document
131 Filed 10/05/10 Page 51 of 57 Page ID
#:1238
1111111111111111111111111111111111111111111111111111111111111111111111111111I111I11I111111
20383A1D07 ~\/1
Zone:105
Bill To:20393 Date: 5/28/2010
From:
Lisa West
Ste:200
Santa Ana, CA 92707
9499556800
Billing Reference:AL 109.964
Company
Claims Department
17911 Von Karman Avenue
Ste:300
Irvine, CA 92614
9999999999
SPECIAL INSTRUCTIONS:
Number of Pieces: 1
Please fold this page in half and place it in the pouch on your shipment. Only one copy is required by Overnlte Express.
WARNING; Use only the printed label for shipping. Using a photocopy of this label for shipping purposes Is fraudulent and could resuil In additional
billing charges, along with cancelalion of your Overnite Express account or OverniteShip Online Profie. Shiprnents with invalid account or credit card
5/28/2010
EXHIBITD
From:
Sent:
To:
Cc:
Subject:
mnapauI1@gmail.com
Re: Nguyen et.al. v. Chase et.al Confirmation of our telephone discussion
08117/2010
Dear Mr. Yoo: Than you for your time discussing various issues relating to this case.
1. Per our discussion, your co-counsel Tuyet T. Tran is preparing the stipulation to continue trial and leave for
Defendant Chase to file cross-complaint against others on thc issue of forged deed of trust and acknowledgment
of Notice of Right to CanceL. As indicated, I am wiling to such stipulation. This stipulation needed to be done
as soon as possible because of
trial date is scheduled for
09/09/2010.
2. I also informed you that I've unilaterally fied plaintiffs' pre-trial conference statement because your crosscomplaint has not been filed since 05/22/2010. Furthermore, because of the delay in cross-complaint tobe fied
by you, the court has set an OSC Re dismissal for failure to prosecute the case and I have no choice but must
response to the Court's OSc.
3. You informed me that Chase has filed its claim with title insurance for the forged documents.
4. Your office wil contact magistrate judge and schedule as soon as possible date for mediation and I wil
6. I also informed you that I had a discussion with Mr. Marsh, counsel for Mr. Joseph Tran and I will dismiss
Mr. Tran from this action. However, you indicated that Mr. Tran may be subject to cross-complaint by you.
Should the substance of our conversation is different, Please inform me as soon as possible.
Best Regards
Paul Nguyen
EXHIBITE
From:
Paul.NguyenlmnapauI1@gmail.comJ
Sent:
To:
Subject:
Mr. Y 00: Per your request, accounting of payment to Chase Home Loan as followed:
For the period of January 2008 - July 2008: Monthly payment of$I,998.08
09115/2008: Payment of$4,000.00
12117/2008: Paymentof$I,998.08
Total payment over the period was: $23,980.80
Regards
Paul Nguyen
On Mon, Aug 30, 2010 at 2:33 PM, Christopher Yoo .:cyoo@adorno.com? wrote:
I need your accounting of all payments made to Chase.
S. Christopher Yoo
Attomeyat Law
il (714)852-6800
il Direct
(7l4) 852-6868
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(or authorizcd to receive for the recipknt), please contact the sender by reply email am! delete all
copies of this mcssage.
IRS CirculUl' 230 Disclosure: '1'0 insure compliance with requirements by the fRS, we inform you that
any U.S. tax advice contained in this eommunication (including any attachments) is not intended or written
to be used, and cannot be used. for the purpose of (i) avoiding penalties nnder the Internal Revenue Code
OF SERVICE
PROOF
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PROOF OF SERVICE
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the Bar of
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(714) 360-7602-telephone
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Plaintiffs in ProPer
Westminster, CA 92683
Esq.
4665 MacArthur
(949).477- 5050-telephone
(949).477-9200- facsimile
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