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FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF DUTCHESS ___________________________________________________ MIDFIRST BANK Filed: _______________ Plaintiff, vs. Index No.: ______________ ANTHONY BERRIOS; SUMMONS MARISSA BERRIOS; SECRETARY OF HOUSING AND URBAN DEVELOPMENT; Mortgaged Premises: THE CHASE MANHATTAN BANK; 6 Donna Drive DUTCHESS COUNTY CLERK; Poughkeepsie, (Town of and “JOHN DOE” and “MARY DOE,” Poughkeepsie) NY 12603 (Said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein.) Defendants. ___________________________________________________ TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in the above entitled action and to serve a copy of your Answer on Plaintiff's attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. The United States of America, if designated as a Defendant in this action, may answer or appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. NOTICE OF NATURE OF ACTION AND RELIEF SOUGHT THE OBJECT of the above captioned action is for the foreclosure of: Mortgage bearing the date of November 27, 2019, executed by Anthony Berrios and Marissa Berrios, husband and wife to Mortgage Electronic Registration Systems, Inc., MERS acting solely as nominee for Bank of England to secure the sum of $299,475.00, and interest, and recorded in the Office of the Clerk of County on December 6, 2019 in Document No.: 01-2019- 6567. 1 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 That Mortgage Electronic Registration Systems, Inc., (“MERS”), as mortgagee, as nominee for Bank of England duly assigned said Note and Mortgage to MidFirst Bank, a Federally Chartered Savings Association by Assignment dated June 15, 2022 and recorded on June 16, 2022 in the Office of the Clerk of County in Document No.: 01-2022-50846A. Loan Modification bearing the date of July 22, 2022, executed by Anthony Berrios and Marissa Berrios to MidFirst Bank, a federally chartered savings association to secure the sum of $272,836.16, with interest, and recorded in the Office of the Clerk of County on August 4, 2022 in Document No.: 01-2022-54107. Loan Modification bearing the date of June 27, 2023, executed by Anthony Berrios and Marissa Berrio to MidFirst Bank, a federally chartered savings association to secure the sum of $282,781.52, with interest, and recorded in the Office of the Clerk of County on July 6, 2023 in Document No.: 01-2023-51898. The relief sought in the within action is a final judgment directing the sale of the Mortgaged Premises described above to satisfy the debt secured by the Mortgage described above. Plaintiff designates Dutchess County as the place of trial. The basis of venue is the County in which the Mortgaged Premises is situated. Section: 6259 Block: 01 Lot: 101960 2 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 DATED: July 25, 2024 Rochester, New York NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the Mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property. Sending a payment to your Mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. BY: ____________________________________ Molly L. Chapman, Esq. DAVIDSON FINK LLP Attorneys for Plaintiff 400 Meridian Centre Blvd., Ste. 200 Rochester, New York 14618 Tel: (585) 760-8218 WE ARE ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. 3 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF DUTCHESS _____________________________________________________ MIDFIRST BANK Filed: _______________ Plaintiff, vs. Index No.: ______________ ANTHONY BERRIOS; MARISSA BERRIOS; VERIFIED COMPLAINT SECRETARY OF HOUSING AND URBAN DEVELOPMENT; THE CHASE MANHATTAN BANK; Mortgaged Premises: DUTCHESS COUNTY CLERK; 6 Donna Drive and “JOHN DOE” and “MARY DOE,” Poughkeepsie, (Town of (Said names being fictitious, it being the intention of Poughkeepsie) NY 12603 plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein.) Defendants. _____________________________________________________ The plaintiff herein, by Davidson Fink LLP, its attorneys, complains of the defendants above named, and for its cause of action, alleges: FIRST: Plaintiff, with an office at 999 NW Grand Blvd., Oklahoma City, OK 73118, is authorized to do business in this State or qualifies as a "foreign bank" pursuant to the relevant statutes and, as such, has standing and capacity to bring this action in the courts of the State of New York. SECOND: Upon information and belief, that at all times hereinafter mentioned, the defendant(s) set forth in Schedule A reside or have a place of business at the address set forth therein and are made defendants in this action in the capacities therein alleged and for the purpose of foreclosing and extinguishing any other right, title or interest said defendants may have in the subject premises. AS AND FOR A FIRST CAUSE OF ACTION: ACTION TO DETERMINE CLAIM TO REAL PROPERTY Plaintiff incorporates paragraphs numbered “First” and “Second” supra, as if set forth in full. THIRD: This action is brought by Plaintiff, pursuant to Article 15 of the Real Property Actions and Proceedings Law, to compel the determination of any claims adverse to those of 4 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 Plaintiff in the premises described as follows, to wit: 6 Donna Drive Poughkeepsie, (Town of Poughkeepsie) NY 12603. FOURTH: The title record with respect to Plaintiff’s subject Mortgage contains a prior Mortgage chain which Plaintiff seeks to resolve through this action, to wit: a mortgage from John J. Adair, Jr. and Lois A. Adair to The Chase Manhattan Bank in the amount of $143,610.00 dated October 31, 1997 which was recorded in the Office of the Clerk of Dutchess County on November 3, 1997 in Book: 2320 Page: 202; a mortgage from John J. Adair, Jr. and Lois A. Adair to The Chase Manhattan Bank in the amount of $61,921.49 dated December 11, 2001, which was recorded in the Office of the Clerk of Dutchess County on January 3, 2002 in Document No.: 01 2002 239; and said mortgages were consolidated and modified so as to constitute a single lien in the amount of $200,000.00 by agreement dated December 11, 2001 and recorded on January 3, 2002 in the Office of the Clerk of Dutchess County in Document No.: 01 2002 240. FIFTH: Said mortgage chain was satisfied and a satisfaction of mortgage was recorded on March 17, 2004 in Document Number 01 2004 4916, however said discharge is defective as it was executed by an incorrect lender. SIXTH: Upon information and belief after reasonable inquiry, Plaintiff has no means by which to discharge the prior lien chain as detailed in paragraph FOURTH above. SEVENTH: Defendants claim, or it appears from the public records or from the allegations of the complaint, that Defendants might claim an estate or interest in the real property, adverse to that of Plaintiff, and the particular nature of such estate or interest is detailed in paragraph FOURTH above. EIGHTH: None of Defendants are unknown and none are infants, intellectually disabled, mentally ill, an alcohol abuser, or incompetent to manage themselves or their affairs. NINTH: The Judgment will not affect a person or persons not in being or ascertained at the commencement of the action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the property involved. Every person in being who would have been entitled to such estate or interest if such event had happened immediately before the commencement of the action is named as a party hereto. TENTH: No personal claim is made against any Defendant other than a Defendant who shall assert a claim adverse to the claim of Plaintiff set forth in the Complaint. 5 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 AS AND FOR A SECOND CAUSE OF ACTION Plaintiff incorporates paragraphs numbered “First” through “Tenth” supra, as if set forth in full. ELEVENTH: That the United States of America, The People of the State of New York, The State Tax Commission of the State of New York, the Industrial Commissioner of the State of New York, and all other agencies or instrumentalities of the Federal, State or local government (however designated), if made parties to this action and if appearing in Schedule B, are made parties solely by reason of the facts set forth in said schedule, and for no other reason. TWELFTH: That heretofore, the defendant(s), Anthony Berrios and Marissa Berrio, for the purpose of securing to plaintiff or its assignor, its successors and assigns, the sum of $282,781.52, duly made a certain bond, note, loan agreement, extension agreement, consolidation agreement, or recasting agreement, as the case may be, wherein and whereby they bound themselves, their heirs, executors, administrators and assigns, and each and every one of them, jointly and severally, in the amount of said sum of money, all as more fully appears together with the terms of repayment of said sum or rights of the plaintiff in said bond, note or other instrument. A copy of said instrument, or an affidavit regarding same, is attached hereto and made a part hereof. THIRTEENTH: That as security for the payment of said indebtedness, a mortgage was executed, acknowledged and delivered to the plaintiff or its assignor, whereby the mortgagor or mortgagors therein named, bargained, granted and sold to the mortgagee named therein, its successors and assigns, the premises more particularly described therein (hereinafter called "mortgaged premises"), under certain conditions with rights, duties and privileges between or among them as more fully appears in said mortgage, a copy of which is attached hereto and made a part hereof. FOURTEENTH: That the said mortgage was duly recorded (and the mortgage tax due thereon was duly paid) in the proper County Clerk's Office at the place and time which appears thereon. FIFTEENTH: That the defendant(s), so named, have failed and neglected to comply with the terms and provisions of said mortgage, bond/note/loan agreement, and said instrument(s) secured by said mortgage by omitting and failing to pay items of principal and interest or taxes, assessments, water rates, insurance premiums, escrow and/or other charges, all as more fully appears in Schedule C and accordingly the plaintiff hereby elects to call due the 6 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 entire amount secured by the mortgage described in paragraph THIRTEENTH hereof. The default has continued beyond the applicable grace period set forth in the mortgage, and by reason thereof, plaintiff has elected and hereby elects to declare immediately due and payable the entire unpaid balance of principal. SIXTEENTH: That Schedule C sets forth the principal balance due and the date (and rate) from which interest accrued and all other items and charges arising from said default which are now due. SEVENTEENTH: That in order to protect its security, the Plaintiff has paid, if set forth in Schedule C, or may be compelled to pay during the pendency of this action local, taxes, assessments, water rates, insurance premiums, inspections and other charges affecting the mortgaged premises, and the plaintiff requests that any sums thus paid by it for said purposes (together with interest thereon), should be added to the sum otherwise due and be deemed secured by the said mortgage and be adjudged a valid lien on the mortgaged premises. EIGHTEENTH: That each of the above-named defendants has, or claims to have, some interest in, or lien upon said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to the lien of plaintiff's mortgage. NINETEENTH: That the plaintiff is now the sole, true and lawful owner and/or holder of the said bond/note/loan agreement and mortgage securing the same and there are no pending proceedings at law or otherwise to collect or enforce said bond/note and mortgage. Copies of Assignment(s) of Mortgage, if any, are attached hereto and made a part hereof. TWENTIETH: That Schedules, Exhibits and other items attached to this Complaint are expressly incorporated and made a part of the Complaint for all purposes with the same force and effect as if they were completely and fully set forth herein wherever reference has been made to each or any of them. TWENTY-FIRST: That by reason of the foregoing, there is now due and owing to the plaintiff upon said bond, note, loan agreement, assumption agreement, extension agreement or consolidation agreement the amount set forth in Schedule C. TWENTY-SECOND: That if the security for the indebtedness consists of more than one parcel, plaintiff respectfully requests that the judgment of foreclosure provide for the sale of the parcels in a particular order to the extent necessary to satisfy the indebtedness or that if the mortgage so states, the mortgaged premises may be sold in one parcel. 7 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 TWENTY-THIRD: The plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of the payment or performance, after the date of the commencement of this action, of any or all of the defaults mentioned herein; and such election shall continue and remain effective until the costs and disbursem*nts of this action, and all present and future defaults under the note and mortgage and occurring prior to the discontinuance of this action are fully paid and cured. TWENTY-FOURTH: Pursuant to the Fair Debt Collection Practices Act, this action may be deemed to be an attempt to collect a debt on behalf of the plaintiff. Any information obtained as a result of this action will be used for that purpose. TWENTY-FIFTH: At the time this proceeding is commenced, the plaintiff is the owner and holder of the subject mortgage and note, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note. TWENTY-SIXTH: If applicable, Plaintiff has complied with all of the provisions of section five hundred ninety-five-a of the banking law and any rules and regulations promulgated thereunder, section six-l or six-m of the banking law, for loans governed by those provisions, and section thirteen hundred four of the real property actions and proceedings law, and HAMP Supplemental Directive 10-02. TWENTY-SEVENTH: Plaintiff has complied with all of the provisions pursuant to RPAPL §§ 1304 and 1306. TWENTY-EIGHTH: That there is no other action pending regarding this claim. WHEREFORE, plaintiff demands judgment: 1. Upon its First Cause of Action: Issuing a satisfaction of mortgage discharging the prior Mortgage chain as detailed in paragraph FOURTH; and 2. Upon its Second Cause of Action: Adjudging and decreeing the amounts due the plaintiff for principal, interest, costs and reasonable attorney's fees, if provided for in the said bond/note/loan agreement or mortgage; and 3. That the defendant(s) and all persons claiming by, through or under them, or either or any of them, subsequent to the commencement of this action and every other person or corporation whose right, title, conveyance or encumbrance is subsequent to or subsequently recorded, may be barred and forever foreclosed of all right, claim, lien, interest or equity of redemption in and to said mortgaged premises; 8 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 4. That the said mortgaged premises, or such part thereof as may be necessary to raise the amounts due for principal, interest, costs, reasonable attorney’s fees, allowances and disbursem*nts, together with any monies advanced and paid, may be decreed to be sold according to law; 5. That out of the monies arising from the sale thereof, the plaintiff may be paid the amounts due on said bond/note/loan agreement and mortgage and any sum which may have been paid by the plaintiff to protect the lien of plaintiff's mortgage as herein set forth, with interest upon said amounts from the dates of the respective payments and advances thereof, the costs and expenses of this action, additional allowance, if any, and reasonable attorney's fees, if provided for in said bond, note, loan agreement or mortgage, so far as the amount of such money properly applicable thereto will pay the same; 6. The premises are being sold subject to: (a) All common charges, if any, which are at the time a lien on the premises, together with such interest or penalties as may have lawfully accrued thereon to the date of payment; (b) Covenants, restrictions and easem*nts of record and zoning regulations and ordinances of the City, Town and Village in which said premises lie; (c) Rights of the public and others in and to any part of the mortgaged premises that lies within the bounds of any street, alley or highway; (d) Any state of facts that an accurate survey, currently dated, might disclose; (e) Any state of facts an inspection would disclose, it being understood that the property is sold in an "as is" and "where is" condition; (f) Any and all tenancies, possessory interests and/or leases affecting said premises which are not extinguished by this foreclosure action; (g) The right of redemption of the United States of America, if any; 7. That if the proceeds of said sale of the mortgaged premises aforesaid be insufficient to pay the amount found due to the plaintiff with interest and costs, the officer making the sale be required to specify the amount of such deficiency in his report of sale so that plaintiff may thereafter be able to make application to this Court, pursuant to Section 1371 of the Real Property Actions and Proceedings Law, for a judgment against the defendant(s) referred to in paragraph TWELFTH of this Complaint for any deficiency which may remain after applying all 9 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 of such moneys so applicable thereto, except that this shall not apply to any defendant who has been discharged in bankruptcy from the subject debt; 8. That either or any of the parties to this action may become a purchaser upon such sale; 9. That this Court, if requested, forthwith appoint a Receiver of the rents and profits of said premises with the usual powers and duties; 10. That the plaintiff may have such other or further relief, or both, as may be just and equitable. Plaintiff specifically reserves its right to share in any surplus monies arising from the sale of subject premises by virtue of its position as a judgment or other lien creditor excluding the mortgage being foreclosed herein; DATED: July 25, 2024 Rochester, New York BY: ____________________________________ Molly L. Chapman, Esq. DAVIDSON FINK LLP Attorneys for Plaintiff 400 Meridian Centre Blvd., Ste. 200 Rochester, New York 14618 Tel: (585) 760-8218 10 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 VERIFICATION (Complaint) I affirm under penalty of perjury: That I am the attorney for Plaintiff, having an office at 400 Meridian Centre Bivd., Suite 200 Rochester, NY 14618, in the within action; that I have read the foregoing Summons and Complaint and know the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters I believe them to be true. That the grounds of my belief as to all matters in the Complaint not stated to be upon knowledge are based upon the original bond/note/loan agreement, mortgage and/or financial statements, together with correspondence. I further state that the reason this verification is made by Affirmant and not an officer of Plaintiff's corporation is that Plaintiff is either a foreign corporation, or its principal place of business is not in the county where I have my office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. \| mM | \f) JU Molly L. Chapypan. Esq. if Sworn to before me this ¢ VJ day of = AAAs, pa (aasorees ADMD otary Public vw SSANDRA L. STOCKS York New NOTARY PUBLIC, State of istration No. 01 nty ok /' PeRialified in MonroeobeCou r 15, 20 Oct Commission Expires 11 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 Schedule A-Defendants ANTHONY BERRIOS Record owner and original mortgagor of 6 Donna Drive premises being foreclosed herein by virtue of Poughkeepsie, NY 12603 a deed recorded on December 6, 2019 in the County Clerk’s Office in Document No.: 02 2019 7960 and the party liable for payment of the note and mortgage herein. MARISSA BERRIOS Record owner and original mortgagor of 6 Donna Drive premises being foreclosed herein by virtue of Poughkeepsie, NY 12603 a deed recorded on December 6, 2019 in the County Clerk’s Office in Document No.: 02 2019 7960 and the party liable for payment of the note and mortgage herein. THE CHASE MANHATTAN BANK Named as a party defendant to extinguish CMMC 343 Thornall Street defendant’s lien as Plaintiff believes that the Edison, NJ 08837 defendant's lien has been satisfied and that the lien of the Plaintiff is superior. “JOHN DOE” and “MARY DOE” Said names being fictitious, it being the 6 Donna Drive intention of plaintiff to designate any and all Poughkeepsie, NY 12603 occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein. 12 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 Schedule B-Defendants SECRETARY OF HOUSING AND URBAN Holder of a mortgage inferior to that being DEVELOPMENT foreclosed herein which mortgage was United States Attorney's Office recorded on August 1, 2022 in Dutchess Southern District of New York County Clerk's Office in Document No.: 01- 86 Chambers Street, 3rd Floor 2022-54032 given to secure the amount of New York, New York 10007 $73,715.86. and Holder of a mortgage inferior to that being Attorney General of the United foreclosed herein which mortgage was States/Department of Justice recorded on July 3, 2023 in Dutchess County 950 Pennsylvania Ave NW Clerk's Office in Document No.: 01-2023- Washington, DC 20530 51865 given to secure the amount of Via certified mailing $14,743.17. DUTCHESS COUNTY CLERK Party defendant pursuant to plaintiff’s request 22 Market Street for the sole purpose to extinguish the prior Poughkeepsie, NY 12601 mortgage chain. 13 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 Schedule C 1. Original Loan Amount .............................................................................$299,475.00 2. Mortgage Origination Date ..........................................................November 27, 2019 3. 2022 Loan Modification. ..........................................................................$272,836.16 4. 2023 Loan Modification. ..........................................................................$282,781.52 5. Principal Balance Owing .........................................................................$282,281.53 6. Default Date ...................................................................................November 1, 2023 7. Monthly Payment Amount (Principal and Interest) .....................................$1,731.68 8. Interest Rate..................................................................................................... 6.875% 9. Interest from .......................................................................................October 1, 2023 10. Late Charges to Date .......................................................................................$138.52 14 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 "This mortgage Is a subpnmehomeloan subject to NewYork State Banking Law §6-m** MIN NOTE November 27, 2019 POUGHKEEPSIE, NewYork [Date] [City] [State] 6 DONNA DR, POUGHKEEPSlE,NY12603 [Property Addrees] 1 BORROWER'S TOPAY PROMISE Inreturn for a loan that I have received, I promise to pay U S $299,475 00 (this amountis called "Pnnapal"), plus Interest to the order of the Lender The Lender Is Bank of England, a Corporation I will make all payments under this Note In the form of cash check or money order I understand that the Lender maytransfer this Note The Lander or anyonewho takes this Note by transfer andwho " m entitled to receive paymerdsunder this Note Is called the "Note Holder 2 INTEREST Interest will be charged on unpe>d pnncipal until the full amount of Pnncipal has been paid I will pay interest at a yearly rate of 5 125 % The interest rate required by this Section 2 Is the rate I will pay both before and after any default descnbed in Sechon 6(B) of thIs Note 3 PAYMENTS (A) Time and Place of Payments I will pay pnncipal and interest by making a payment every month I will make my monthly paymenton the tat day of each month beginning on January 1,2020 Iwill make these paymenteeverymonth until I have paid all of the pnncipal and interestand any other charges described below that I mayoweunder this Note Each monthly payment will be applied as of Its echeduled due date and will be m apphed to interest and any other items In the order descnbed the Sec*nty Instrument before Pnncipal If, on December 2049, t " I still owe amountaunder this Note I will pay those amounts In full on that date, which is called the %Iaturlty Date I will make my monthly payments at Box 3490PO Little Rock, 72203-3490 AR or at a d erent place If required by the Note Holder Amount of Monthly Payments (B) Mymonthly payment will be in the amount of U S $1,630 60 4 BORROWER'S RIGHTTOPREPAY I have the right to make payments of Principal at any time before they are due A paymentof Principal only Is known ' as a "Prepayment WhenI makea Prepayment, Iwill tell the Note Holder in wnting that Iam doing so I may not designate a payment as a Prepaymentif I have not made all the monthly payments due under the Note I may make a full Prepayment or partial Prepayments without paying a Prepayment charge The Note Holder will use my Prepayments to reduce the amount of Pnncipal that I owe under this Note However, the Note Holder may apply my Prepayment to the accrued and unpaid Interest on the Prepayment amount, before applying my Prepayment to reduce the Pnnorpal amount of the Note If I make a partial Prepayment there will be no changes in the due date or In the amount of my monthly payment unless the Note Holder agrees in writing to those changes 5 LOANCHARGES If a law, which applies to this loan and which sets maximumloan charges, is finally interpreted so that the mlerest or other loan charges collected or to be collected In connection with this loan exceed the permitted limits, then (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted kmit, and (b) any sums already collected fromme which exceeded permitted IlmIts will be refunded to me The Note Holder maychoose to makethis refund by reducing the Pnncipal I owe under this Note or by making a direct payment to me Na refund reduces Pnncipal, the reduction will be treated as a partial Prepayment. 6 BORROWER'S FAILURE TOPAYASREQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it Is due I wM pay a late charge to the Note Holder The amountof the charge will be 4 000 of my overdue % payment of pnncipal and interest I will pay this late charge promptly but only once on each fate payment (B) Default If I do not pay the full amount of each monthly payment on the date it Is due I will be In defaut (C) Notice of Default If I am In default the Note Holder may send mea written notice telling methat If I do nol pay the overdue amount by a certain date the Note Holder may require meto pay Immediately the full amountof Principal which has not been paid and NEW YoRNFD(EDRATENoTE- Single Famliy - Fannia MaafFreddle MacuNiFORMpieTRuMaNT Form 3233 UD1 Modified for FHAe/15 (sev 2/18) EMeMan ine Page 1 Of 2 FHA32oDNvNTo216 FHA3200NOT (CLS) 117RGo1sof De AMPST 15 of 109FILED: DUTCHESS COUNTY CLERK 07/26/2024 10:01 AM INDEX NO. 2024-53462NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2024 LOAN# all the interest that I owe on that amount That date must be at least 30 days after the date on which the notice 1s malled to meor debvered by other means " NoWaiver By Note Holder (D) Even If, at a smewhen I amIn default the Note Holder does not require meto pay Immediately In full as described above the Note Holder wIll still have the right to do so if I arn In default at a later time (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required meto pay Immediately In fulf as described above the Note Holder will have the right to be paid back by me for ell of Its costs and expenses in enforcing this Note to the extent not prohibited by apphcable law Those expenses Include for example reasonable attomeys fees 7 GMNG OFNOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivenng st or by maghng It by first class mail to meat the Property Address above or at a different address if I give the Note Holder a notice of mydliferent address Any notice that must be given to the Note Holder under this Note will be given by dehvering It or by malilng ft by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I amgiven a notice of that different address 8 UNDER OFPERSONS OBLIGATIONS THIS NOTE If more than one person signs this Note each person Is fully and personally obligated to keep all of the promises madeIn this Note Including the promise to pay the full amountowed Any person who is a guarantor surely or endorser of this Note is also obilgated to do these thmgs Any person who takes over these obligations, including the obilgations of a guarantor, surety or endorser of this Note is also obhgated to keep all of the promises made in this Note The Note Holder may enforce its nghts under this Note against each person individually or against all of us together This means that any one of us maybe required to pay all of the amountsowed under thls Note 9 WANERS I and any other person who has obhgations under this Note waive the nghts of Presentment and Notice of Dishonor "Presentment" means the right to require the Note Holder to demand payment of amounts due "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amountsdue have not been pald 10 UNIFORMSECURED NOTE This Note as a uniform matrument with hmited vanations in some gunsdictions In eddition to the protechons given to the Note Holder under this Note a Mortgage Deed of Trust, or Security Deed (the "Security Instrurnent") dated the some date as this Note protects the Note Holder from possible losses which might result If I do not keep the promises which I make in this Note That Security Instrument desenbes how and under what conditions I maybe required to make Immedi- ate payment mfull of all amounts I owe under this Note Someof those conditions are desenbedas follows Lander mayrequire immediate payment in full of all SumsSecured by this Security instrument If all or any part of the Property orif any right in the Property is sold or transferred without Lender's prior written permission If Borrower is not a natural person and a beneficial interest In Borrower Is sold or transferred without Lender s prior written permission Lender elso may require Immediate payment in full However this option shall not be eicercised by Londer if such exercise is prohibited by Apphcable Law If Lender requires Immediate payment In full under this Section 17 Lender wtil give mea notice which states this requirement The notice will give meat least 30 days to make the required payment The 30-day panodwill begin on the date the notice is given to me In the manner required by Section 14 of this Security Instrument If I do not make the required payment dunng that penod, Lender may act to enforce its rights under this Sec*nty Instrument without giving meany further notice or demandfor payment WITNESSTHEHAND(S) ANDSEAL(S) OFTHEUNDERSIGNED '
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Ruling
THE PACIFIC SOUTHWEST DISTRICT OF THE LUTHERAN CHURCH-MISSOURI SYNOD VS IRENE JENSEN, ET AL.
Jul 31, 2024 |22NWCV00320
Case Number: 22NWCV00320 Hearing Date: July 31, 2024 Dept: C PACIFIC SOUTHWEST DISTRICT OF LUTHERAN CHURCH-MISSOURI SYNOD v. IRENE JENSEN, ET AL. CASE NO.: 22NWCV00320 HEARING: 7/31/24 @ 9:30 A.M. #2 TENTATIVE RULING I. Plaintiff Pacific Southwest District of Lutheran Church-Missouri Synods motion for leave to file the first amended complaint is GRANTED. II. Plaintiff Pacific Southwest District of Lutheran Church-Missouri Synods motion for service by publication is DENIED without prejudice. Moving Party to give notice. Background This is a quiet title action filed by Pacific Southwest District of the Lutheran Church-Missouri Synod (PSD) seeking to determine the ownership of the church where Defendant Peace Lutheran Church (PLC) gathers. PSD contends that it now owns the property pursuant to PLCs constitution because PLCs congregation no longer exists. PSD moves for leave to file the first amended complaint and for service by publication. Motion for Leave to File the First Amended Complaint Legal Standard The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc., § 473, subd. (a).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a).) A court can deny leave to amend after long, inexcusable delay, where there is cognizable prejudice, such as discovery needed, trial delay, critical evidence lost, or added preparation expense. (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) Discussion On April 26, 2022, Plaintiff filed the complaint. Plaintiff proposes the following changes: (1) Identify Doe 1 as all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiffs title or any cloud upon Plaintiffs title thereto (hereinafter referred to as Unknown Claimants). (2) Add a seventh cause of action for declaratory relief against Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, Unknown Claimants, and Does 2-50. (3) Add an eighth cause of action for imposition of constructive trust against Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, Unknown Claimants, and Does 2-50. (4) Add a ninth cause of action for ejectment against Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, Unknown Claimants, and Does 2-50. 5. (5) Add a twelfth paragraph to the Prayer For a judicial determination and declaration that defendants Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, Unknown Claimants, and Does 2-50 hold the subject property and funds as constructive trustee(s) for Plaintiffs benefit; that a constructive or resulting trust be imposed for the benefit of Plaintiff; and that an order be entered compelling Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, and Does 1-50 to transfer said property to Plaintiff. (6) Add a thirteenth paragraph to the Prayer For an order directing defendants Chastity Carvel, Peace Lutheran Church, Incorporated, of South Gate, California, Unknown Claimants, and Does 2-50, and each of them, to surrender possession of all real and personal property of Peace Lutheran Church to Plaintiff. Plaintiff has included a copy of the proposed amended pleading. (Decl. Leverone, ¶ 2, Ex. A.) California recognizes a general rule of&liberal allowance of amendments& (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that even if the proposed legal theory is a novel one, the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial. (emphasis added.) (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) In light of the liberality associated with granting motions for leave to amend up to and including the time of trial, the Court finds that PSD should be afforded the opportunity to make the proposed amendments. Defendants maintain their right to compel discovery, demur, move for judgment on the pleadings, move to strike, or move for summary judgment. The motion for leave to file the First Amended Complaint is GRANTED. Motion for Service by Publication Legal Standard If the Court determines that the plaintiff has made a showing that plaintiff used reasonable diligence to ascertain the identity and residence of and to serve summons on the persons named as unknown defendants, the court shall order service by publication pursuant to Section 415.50 and the provisions of this article. (Code Civ. Proc., § 763.010, subd. (b).) Discussion Plaintiffs counsel conclusorily states that Plaintiff and its counsel have used reasonable diligence to identify and locate all persons Plaintiff reasonably suspects might claim an interest in the subject property. (Decl. Leverone, ¶ 2.) Plaintiffs showing is not sufficient. The motion for service by publication is DENIED without prejudice.
Ruling
SANDRA NORLUND, TRUSTEE OF THE NORLUND FAMILY TRUST DATED SEPTEMBER 15, 2000 VS RICHARD L. NORLUND, ET AL.
Jul 30, 2024 |20STCV27665
Case Number: 20STCV27665 Hearing Date: July 30, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 SANDRA NORLUND, an individual, et al., Plaintiffs, v. RICHARD L. NORLUND, et al., Defendants. _____________________________________ NANCY HYMAS, as Trustee, Intervenor. Case No.: 20STCV27665 [Consolidated with 23STCV19070] Hearing Date: July 30, 2024 Trial Date: August 20, 2024 [TENTATIVE] RULING RE: DEFENDANTS DEMURRERS TO, AND MOTIONS TO STRIKE, THE SECOND AMENDED COMPLAINT AND FIRST AMENDED COMPLAINT IN INTERVENTION Case No.: 20STCV27665 The parties dispute title to the real property located at 14924 and 14930 Arrow Highway, Baldwin Park, California (the Property). Plaintiff Sandra Norlund (Plaintiff), as trustee of one Norlund Family Trust, sued defendants Richard L. Norlund and Sharon K. Bacon Norlund (Defendants), individually and in their capacities as trustees for four other Norlund trusts, on July 22, 2020. Plaintiff also named, as nominal defendant, Nancy Hymas in her capacity as trustees for two further trusts. Plaintiff filed her operative second amended complaint (SAC) on March 20, 2024, asserting claims for judicial foreclosure, quiet title, reformation of contract, declaratory relief, and elder abuse. Nominal defendant, now intervenor, Nancy Hymas (Intervenor) filed a complaint in intervention on October 20, 2023, and an operative first amended complaint in intervention (FACI) on April 18, 2024. The FACI asserts causes of action for judicial foreclosure, breach of contract, fraud, intentional interference with prospective economic advantage, declaratory relief, and quiet title. On May 22, 2024, Defendants demurred to and moved to strike portions of Plaintiffs FAC. On June 5, 2024, Defendants demurred to and moved to strike portions of Intervenors FACI. On July 15, 2024, Plaintiff and Intervenor filed oppositions to the respective demurrers and motions. On July 23, 2024, Defendants filed their replies to each. The Court has considered all moving, opposition, and reply papers, and rules as follows. Background Allegations Plaintiff alleges, in brief, that she was supposed to be the owner of a secured interest in [the Property], but Defendants fraudulently altered documents to invalidate her interest in the Property and/or the promissory note it secured. (SAC, ¶¶ 2-3; see also ¶¶ 13, 17-19.) Intervenor alleges she and Plaintiff were assigned the promissory note secured by the Property as part of a settlement agreement signed April 11, 2019. (FACI, ¶ 2.) Defendants breached the settlement agreement, including the terms of the promissory note, and failed to record a deed of trust reflecting the parties obligations under the Note. (Id., ¶ 3.) Judicial Notice Defendants request judicial notice of twenty-eight (28) exhibits totaling 2,180 pages. On July 15, 2024, Sandra Norlund filed objections to the request for judicial notice and Nancy Hymas filed an Opposition. The Court rules as follows. Most of the material is not properly subject to judicial notice (e.g., RJN Exs. 5, 9, 12 [declarations and deposition transcripts]). Several court records might be noticeable, except notice is unnecessary, because they already appear in the Courts record (e.g., RJN Exs. 7, 8, 10 [Judge Sotelos prior rulings]). The materials are also largely irrelevant. There is ... a precondition to the taking of judicial notice in either its mandatory or permissive formany matter to be judicially noticed must be relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) As Judge Sotelo observed in his April 13, 2021 ruling on Defendants demurrer to the first amended complaint: Rarely will a demurrer require judicial notice of so many pages[.] And the length of Defendants filing here suggests, as with their 2021 motion, that Defendants have not actually filed a demurrer. (04-13-2021 Minute Order, at p. 1.) The Court denies Defendants requests for judicial notice in their entirety. Motions to Strike Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. (Cal. Rules of Court, rule 3.1113(d).) Defendants motions to strike run forty-eight (48) and one hundred seven (107) pages, respectively. The motions are denied for gross violations of Court Rules. Demurrers 1. Demurrer to Sandra Norlunds Second Amended Complaint a. Demurrers based on the motion to strike fail because the motion to strike has been denied. Defendants demur to the all five of Plaintiffs causes of action on the ground that after the Court sustains [sic] Defendants Motion to Strike ... [the] cause of action fails to state a cognizable cause of action[.] (Dem., 2:10-13, 2:19-3:4.) The Court has denied Defendants motion to strike, so this argument fails, and the demurrer is overruled in each instance. b. Defendants state a claim for quiet title. Defendants separately demur to the second cause of action for quiet title because it fails to state indispensable elements of the cause. (Dem., ¶ 3.) Defendants memorandum relies on numerous factual contentions that are improper for resolution at the pleading stage. To sustain the demurrer, the Court would have to make a factual findings that, for instance, it is Richard ... that inherited 1/3rd of the Warehouse and bought Sandras and Nancys 2/3rds interests. (Dem., 5:26-27.) Defendants also contend Plaintiff cannot state a claim because she cannot overcome the title presumption at Evidence Code section 662. (See Dem., 6:9-18.) But the Court cannot resolve an evidentiary presumption at the pleading stage. And to the extent Defendants rely on their requests for judicial notice, those requests have been denied. Defendants fundamentally argue that the Settlement is perfectly clear and any claim otherwise is frivolous and subject to demurrer. (See Dem., 5:16-19 [The Settlement is clear ... . This does demonstrate Sandra unclean hands, suing under the Settlement for a right not contained therein]; 6:5-6 [the Settlement clearly delineates to whom the Warehouse went and it is not Sandra].) Defendants have not made a reasoned argument why the Settlement is as clear as they contend. And this case has proceeded across two jurisdictions and through an appeal; various courts, including this one, disagree that the matter is so straightforward. The demurrer is overruled in its entirety. 2. Demurrer to Nancy Hymass Complaint in Intervention a. Demurrers based on the motion to strike fail. Defendants demur to the first cause of action based on their assumption that the Court will grant their Motion to Strike. The Court has denied that motion; the demurrer fails. b. There is no grounds for abatement. Defendants demur to the second, third, fifth, and sixth causes of action on the basis that the Plaintiff in intervention has alleged another fraud action which is pending. This argument fails. First, the other action which is pending has been consolidated with this one, so it is not another action. Second, the argument amounts to a plea in abatement, which requires a specific showing that identical claims be litigated between identical parties; Defendants have not made this showing in their moving papers. Defendants challenge the sixth cause of action based on factual contentions improper for resolution on demurrer. (See Dem., 5:1:10 [[t]he Settlement clearly demonstrates ... that title is in Richards name, based on the evidentiary title presumption].) This argument fails for reasons discussed above regarding the demurrer to the SAC. c. The intervenor states a claim for intentional interference with prospective economic advantage. Defendants challenge one cause of action the fourth, for intentional or negligent interference with prospective economic relations on grounds that are proper for demurrer. Defendants assert Intervenor has not alleged facts sufficient to state a claim on the face of her FACI. Although the argument is procedurally proper, the Court is not persuaded by it. To prevail on a cause of action for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) the defendant's intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant's acts. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152 fn.6, italics added.) The First Amended Complaint in Intervention alleges that Plaintiffs and Intervenor had an economic relationship the loan secured by the Property that had the probability of benefit to both of them; that Defendants knew about it; that Defendants intentionally acted in a manner designed to disrupt it, by engaging in various fraud; that the relationship was disrupted (see the instant litigation); and that Intervenor incurred financial costs as a result. The demurrer to the fourth cause of action is overruled. Case No. 23STCV19070 Defendants also filed a Demurrer and Motion to Strike Intervenors Verified First Amended Complaint on May 30, 2024 in the related case that was transferred from Butte County in 2023, 23STCV19070. This case has now been consolidated at least for pretrial rulings up to the time of trial. Nancy Hymas filed an Opposition to both motions on July 15, 2024, and the Defendants filed their replies on July 23, 2024. The request for judicial notice, similar to the request in the lead case, runs 2034 pages and, among other things, asks the Court to take judicial notice of California statutory law, providing additional argument and case citations, in addition to lengthy argument about the import of some 37 exhibits. As with the judicial notice in the lead case, and for the same reasons, the Court declines the request to take judicial notice in its entirety. Also similar to the lead case, the motion to strike runs 69 pages and vastly exceeds the standards appropriate for a motion to strike, seeking resolution of disputed issues. The motion to strike is denied in its entirety for the same reasons as those in the lead case. Finally, the demurrer as to the First Amended Complaint in the lead case and the related case contain overlapping challenges. To the extent that Defendants make the same arguments, the Court overrules the demurrer on the same grounds as those stated above relating to the lead case. The Court also overrules the demurrer on the grounds that the second cause of action for fraud or fifth cause of action for quiet title are not stated with sufficient particularity. The Court disagrees, and the parties have long been apprised by now of the allegations by both sides. This matter is in fact ripe for trial. Court also overrules the demurrer as to the alleged ground that the claims do not state a cause of action. Defendants repeatedly frame their challenges as an argument about who should prevail and what the evidence will clearly show. The Court will not allow this demurrer to be transformed into a motion for summary judgment, or even a trial, with the Court being asked to make findings of fact. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364365, as modified (May 15, 2008) [cleaned up].) Conclusion The demurrers are overruled in their entirety in both cases. The motions to strike are denied in their entirety in both cases.
Ruling
Matthews, Thomas J. et al vs. Brummer, Toby T. et al
Aug 12, 2024 |S-CV-0050890
S-CV-0050890 Matthews, Thomas J. et al vs. Brummer, Toby T. et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Dewitt, Elledge
Ruling
WEST IDAHO LLC VS CATHERINE ZHANG
Aug 05, 2024 |21SMUD00229
Case Number: 21SMUD00229 Hearing Date: August 5, 2024 Dept: P Tentative Ruling West Idaho, LLC v. Zhang, Case No. 21SMUD00229 Hearing date June 12, 2024, continued to 08/05/2024 Cross-defendant West Idahos Motion for Summary Judgment and/or Summary Adjudication as to Cross-complainant Zhangs -- UNOPPOSED Cross-defendant West Idaho LLC moves for summary judgment as to Zhangs cross complaint. The motion is unopposed. West Idaho sued Zhang for unlawful detainer. Zhang cross-complained, alleging (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) forcible detainer and (4) conversion. The cross-complaint alleges a security guard employed by West Idaho pointed a gun towards her door, and West Idaho changed the locks on her apartment. A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and moving party is entitled to judgment as a matter of law. Code Civ. Proc., § 437c(c). Defendant bears the initial burden of establishing one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Id. subd. (p)(2). Only when this initial burden is met does the burden shift to the opposing party to show a triable issue of material fact. Id. A party may move for summary adjudication as to one or more causes of action if the party contends the cause of action has no merit. Id. subd. (f)(1). A party may move for summary adjudication as an alternative to summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Id. subd. (f)(2). Even though a motion for summary judgment is unopposed, the court cannot grant summary judgment unless defendant meets its initial burden. See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The scope of the defendants initial burden is defined by the pleadings. See 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 18. Intentional Infliction of Emotional Distress The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted. West Idaho argues Zhang cannot establish the conduct was outrageous. Deciding whether conduct is outrageous is usually a question of fact. So v. Shin (2013) 212 Cal.App.4th 652, 672, as modified on denial of reh'g (Jan. 28, 2013). A defendants conduct is considered to be extreme and outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Defendants argue the video footage is undisputed evidence that the security guards conduct was not extreme or outrageous. Video of the incident shows the guard was holding a phone, not a gun (UMF No. 5). The guard Mohseni states when he was at the premises on March 5, 2021, he did not have a gun in his possession. Mohseni Decl. ¶5. Defendant meets the initial burden of showing there was no extreme or outrageous conduct; the burden shifts to plaintiff to show a triable issue of material fact. As no opposition has been filed, Zhang has not established a question of material fact as to any conduct that was extreme or outrageous. Negligent Infliction of Emotional Distress The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588-589. The emotional distress suffered by the plaintiff must be so severe and enduring that no reasonable person could be expected to endure it. Bogard v. Employers Causalty Co. (1985) 164 Cal.App.3d 602, 617-618. A landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. Civ. Code §1714(a); Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189. This means a landlord in caring for the property, must act toward the tenant as a reasonable person under all of the circ*mstances. Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779. West Idaho argues Zhang cannot establish that West Idaho breached any duty. West Idaho presents evidence that Mohseni went to Zhangs apartment to investigate a noise complaint. UMF No. 2. Video evidence demonstrates Mohsenis hand was holding a phone, not a gun. UMF No. 5. Mohseni states that he did not have a gun in possession during the incident. Mohseni Decl. ¶5. Mohseni acted reasonably in investigating the noise complaint by appearing in-person. Moving party meets its initial burden regarding the NIED claim. No opposition has been filed; Zhang has not raised a question of material fact as to the NIED claim. Forcible Detainer A person is guilty of a forcible detainer who either: (1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise. (2) Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. Cal. Code Civ. Proc. §1160 Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to retrieve her possessions make it guilty of forcible detainer. West Idaho argues the forcible detainer claim fails because Zhang voluntarily vacated the premises before the locks were changed. It presents evidence of her voluntarily vacating prior to West Idaho changing the locks. UMF No. 10. Zhang returned her key to West Idahos leasing office, and all of her belongings were vacated prior to West Idaho changing the Premises locks. UMF No. 11. Section 1160 does not apply unless the defendant who entered the property, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. West Idaho presents evidence that Zhang returned her key to its leasing office, and all her belongings were vacated before it changed the locks. Zhang was no longer occupying the apartment, and West Idaho did not unlawfully enter the property. Defendant meets its initial burden. As no opposition has been filed, Zhang has not raised a question of material fact as to forcible detainer. Conversion Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to obtain her property constitute a wrongful act or disposition of property rights and makes it liable for conversion. The elements for conversion are: (1) the plaintiff owned or had the right to possess the personal property; (2) the defendant disposed of the property in a manner inconsistent with the plaintiffs property rights; and (3) resulting damages. Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544, as modified on denial of reh'g (Apr. 10, 1996). West Idaho argues Zhang has not shown ownership or right to possession at the time of the alleged conversion, as per the above analysis. West Idaho meets its initial burden; Zhang has not shown any material facts in dispute. GRANTED.
Ruling
JESSICA PURNER, ET AL. VS GREYSTONE PROPERTIES, LLC, ET AL.
Aug 05, 2024 |22SMCV01816
Case Number: 22SMCV01816 Hearing Date: August 5, 2024 Dept: P Tentative Ruling Purner, et al. v. Greystone Properties, LLC, et al., Case No. 22SMCV01816 Hearing Date: August 5, 2024 Plaintiffs Motion for Leave to Amend the Complaint UNOPPOSED In this habitability action arising from bed bug infestation, plaintiff tenants seek for leave to file a first amended complaint, adding three new causes for actions. Leave to amend is permitted under Code of Civil Procedure sections 473(a) and 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. . .. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487. A motion for leave to amend a pleading must comply with California Rules of Court, Rule 3.1324, which requires a declaration to set forth what allegations are to be added and where, and what new evidence was discovered warranting amendment and why the amendment was not made earlier. The motion must include (1) a proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. Cal. Rules of Court, rule 3.1324(a), (b). The motion complies with CRC rule 3.1324. Plaintiffs counsel states the deposition of Josh Wolf on May 14, 2024, revealed additional facts and violations of Plaintiffs rights by the defendant. Bartlett Decl. ¶ 3. Plaintiffs specify the effect, necessity, and propriety of the amendment because they state the proposed FAC seeks to clean up allegations and errors in the Complaint while adding three new causes of action: 1) violation of the Tenant Anti-Harassment Ordinance; 2) negligence; and 3) breach of contract based on an illegal contract. Id. ¶¶ 5-6. Plaintiffs specify where the edits would be made by providing a blue-lined copy of the proposed FAC showing the changes between the proposed FAC and the complaint. Id. ¶ 7; Exh. B. Finally, Bartlett states the amendment was not made earlier because plaintiffs were unable to get an agreement with defendants to file a joint stipulation. Id. ¶¶ 4, 9. Defendants would not be prejudiced as they have not taken any depositions of the plaintiffs and do not file an opposition. Id. ¶ 3. GRANTED.
Ruling
PIK WAH LEE FUNG ET AL VS. LINDA LOW ET AL
Jul 30, 2024 |CGC23610830
Real Property/Housing Court Law and Motion Calendar for July 30, 2024 line 4. DEFENDANT LINDA LOW , AN INDIVIDUAL, DOING BUSINESS AS CRAWSTATION/MALASA's MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT/LEAVE TO DEFEND. Continued to August 16, 2024, at 9:30a.m. in Department 501 for the parties to file supplemental briefing based on D's new basis for failing to file a responsive pleading. Defendant's supplemental briefing to be filed no later than July 31, 2024. Plaintiffs' response to be filed no later than August 9, 2024.=(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
JEFFREY GIUDICE VS ZANDER RILEY, ET AL.
Jul 31, 2024 |24SMCV01835
Case Number: 24SMCV01835 Hearing Date: July 31, 2024 Dept: P Tentative Ruling Jeffrey Giudice v. John Riley, et al., Case No. 24SMCV01835 Hearing date July 31, 2024 Plaintiff Giudices Motion for Summary Judgment/Adjudication - UNOPPOSED This unlawful detainer action is brought by plaintiff landlord Giudice against defendants John Riley and Zander Riley. On January 15, 2020 plaintiff and defendant John Riley entered into a written agreement to rent the premises on a month-to-month basis for $4,588 per month. Complaint, ¶4-6. The rent was changed on February 8, 2024 to $4,863/month. Compliant, ¶ 6(d). Defendants failed to pay outstanding rent or comply with a notice to quit. Complaint, ¶ 9(a)(6) and 19(c). Giudice seeks possession, past due rent of $40,996, forfeiture of the rental agreement, costs, reasonable attorneys fees and holdover damages of $162/day from April 1, 2024. Complaint, ¶ 19. On May 21, 2024, defendant Zander Riley, in pro per, answered. On May 22, 2024, defendant John Riley in pro per, answered. On July 3, 2024, Giudice filed and served via U.S. mail this motion for summary judgment or, in the alternative, summary adjudication on the grounds that there is no triable issue of material fact as to any allegation of the complaint, and defendants have no viable defense. As of July 26, 2024, the motion is unopposed. Legal Standard/Applicable Law A motion for summary judgment or adjudication provides courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. It must be granted if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c). In the unlawful detainer context, [a] motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Code Civ. Proc., § 1170.7. Service must be made by personal delivery, electronic service, fax transmission, express mail, or other means consistent with Code of Civil Procedure sections 1010, 1010.6, 1011, 1012, and 1013, and reasonable calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. Cal. Rules of Court, rule 3.1351(c). The court, in its discretion, may consider written opposition filed later. Cal. Rules of Court, rule 3.1351(c). The procedures governing a motion for summary judgment in an unlawful detainer action are streamlined (e.g., separate statements are not required under section 437c, subdivision (s) of the Code of Civil Procedure), but such a motion shall be granted or denied on the same basis as a motion under [Code of Civil Procedure s]ection 437c . . . . Borden v. Stiles (2023) 92 Cal.App.5th 337, 344-345, quoting Code Civ. Proc., § 1170.7. In moving for summary judgment, a plaintiff . . . has met his burden of showing that there is no defense to a cause of action if he has proved each element of the cause of action entitling him to judgment on that cause of action. Borden v. Stiles, supra, 92 Cal.App.5th 337, 345, internal quotations omitted, citation omitted. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. Id., internal quotations omitted, citation omitted. Elements for an Unlawful Detainer Based on Nonpayment of Rent The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16. Giudices Evidence Giudice presents evidence defendants are in possession of the property. Giudice Decl., ¶ 23. Giudice owns the property. Giudice Decl., ¶ 3; Ex. 1. Giudice entered into a lease with defendant John Riley on or about January 15, 2020. Giudice Decl., ¶ 9; Ex. 5. In January 2020 and April 2020, defendants failed to make rental payments. Giudice Decl., ¶¶ 13-14; Ex. 6. Defendants have a balance of $60,448 for rent from April through July 2024. Giudice Decl., ¶ 15; Ex. 6. On February 7, 2024, defendants and all occupants of the property were served with a 30-Day Notice to Pay Rent of Quit. Adams Decl., ¶¶ 4-5; Ex. 7. On March 6, 2024, Plaintiffs counsel prepared an Offer of Conditional Extension to the 30-Day Notice to Pay Rent or Quit served on February 7, 2024, which extended the notice to pay or quit by 30 days in exchange for defendants additional payment of $10,000.00 by March 8, 2024. Adams Decl., ¶ 7; Ex. 21. The offer clarified that partial payment does not constitute waiver of any rights and defendants failed to make any additional payments after March 11, 2024. Adams Decl., ¶ 7; Ex. 21. On or about April 9, 2024, Plaintiffs counsels office prepared the Notice to Quit (Without Opportunity to Cure), which provided three days for defendants to deliver possession of the property, which was served on April 10, 2024. Adams Decl., ¶¶ 8-9; Exs. 9-10. Defendants did not respond. Adams Decl., ¶ 10. The notice to quit was issued because of defendants failure to comply with the February 7, 2024 thirty day notice to pay rent or quit. Adams Decl., ¶ 8; Ex. 9. Following the failure to vacate after expiration of the notice to quit, Giudice filed the complaint. Adams Decl., ¶ 11. Giudice presents evidence the 30-day notice to pay rent or quit and subsequent notice to quit were properly served. Adams Decl., ¶ 4; Rodriguez Decl., ¶¶ 2-3. Giudice has not received any payment from defendants since March 11, 2024, and he did not waive, change, or cancel the notice to quit. Giudice Decl., ¶¶ 16, 20. Giudice did not accept rental payments from defendants after the notice to quit was served. Giudice Decl., ¶ 22. As of the date of his declaration, defendants remain in possession of the property. Giudice Decl., ¶ 23. Given that the motion is unopposed, the Court finds defendants have conceded to all arguments raised therein because [c]ontetions are waived when a party fails to support them with reasoned argument and citations to authority. Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215. The plaintiff has met his initial burden on summary judgment with evidence establishing each element for his cause of action for unlawful detainer based on nonpayment of rent. The defendants failed to oppose and failed to provide any responsive evidence. As such, defendants have not met their burden in showing the existence of a triable issue of material fact as to a cause of action or defense thereto. GRANT.
Ruling
JONATHAN PEZZA, ET AL. VS FRANCISCO JORDAN, ET AL.
Jul 31, 2024 |24VECV02372
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