07-29-2011 doc 26 sps reply to opposition to motion to dismiss argument

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REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

FIRST AMENDED COMPLAINT Case No. 2:11-ev-01462

I . C O R N E L L , PLAINTIFF,

TFOLIO SERVICING, INC. ("SPS"), JOHN DOES NOS. 1-20,

DEFENDANTS.

:11-cv-01462-FCD-KJN Judge Frank C. Damrell, Jr.PLAINTIFF'S OPPOSITION TO THE MOTION TO DISMISS THE FIRST AME

NDED COMPL

Case 2:11-cv-01462-FCD -KJN Document 26 Filed 07/29/11 of 4

WRIGHT, FINLAY & ZAK, LLP

Gwen H. Ribar, Esq., SBN 188024

William J. Idleman, Esq., SBN 2584504665 MacArthur Court, Suite 280

Newport Beach, CA 92660 (CornelliPleadings/REPLY/OPPMTD)Tel: (949) 477-5050; Fax: (949) [email protected]; [email protected]

Attorneys for Defendant SELECT PORTFOLIO SERVICING, INC.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Date: August 5, 2011

Time: 10:00 a.m.Crtrm.: 2

[Filed Concurrently with a Supplemental

Request for Judicial Notice]

TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR

ATTORNEYS OF RECORD:

1

mailto:[email protected]








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REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

FIRST AMENDED COMPLAINT Case No. 2:11-cv-01462


Defendant SELECT PORTFOLIO SERVICING, INC. hereby responds to Plaintiff

MELANIE I. CORNELL'S ("Plaintiff') Opposition to the Motion to Dismiss as follows:

I.

ARGUMENT

A. The Deed of Trust and Assignment are Recorded in Nevada County.

Plaintiff stated that she stopped making payments under the terms of the Note and Deed of

Trust under the coy theory that because the Deed of Trust was not recorded in Nevada County;

she no longer has to make payments.'

Although the location of the recording of the Deed of Trust is irrelevant to Plaintiffs

obligations under the Deed of Trust, Defendants now concede that the Property is located in Nevada County. Additionally, both the Deed of Trust and Assignment to the current

beneficiary, U.S. Bank National Association, as Trustee, on behalf of the Holders of the Asset

Backed Securities Corporation Home Equity Loan Trust, Series NC 2005-HE8, Asset Backed

Pass-Through Certificates, Series NC 2005-HE8, are duly recorded in Nevada County.2

The recording of a conveyance may be rerecorded in another county and the newly

recorded document has the same force and effect as the original recording. California Civil

Code §1213 states:

Every conveyance of real property or an estate for years therein acknowledged or

proved and certified and recorded as prescribed by law from the time it is filed with

the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees; and a certified copy of such a recorded conveyance

may be recorded in any other county and when so recorded the record thereof

shall have the same force and effect as though it was of the originalconveyance and where the original conveyance has been recorded in any

county wherein the property therein mentioned is not situated a certified copy

of the recorded conveyance may be recorded in the county where suchproperty is situated with the same force and effect as if the original

conveyance had been recorded in that county. (Emphasis added.)

1 See First Amended Complaint, 29.2 See Deed of Trust and Assignment, attached as Exhibits "1" and "2" to the SupplementalRequest for Judicial Notice. 2



Y TO OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

FIRST AMENDED COMPLAINT Case No. 2:11-cv-


1

As allowed per the above statute, the Deed of Trust it is now recorded in Nevada

2 County as document number 20110015747. This renders Plaintiffs argument as moot.

3

In light of the above and for all the reasons set for in the Motion to Dismiss the

First4 Amended Complaint, Plaintiff fails to set forth a legal basis for her adverse claims to quiet title.

5 B. The Claim for Conversion Fails to Allege Any Facts to Support the Claim.

6Plaintiffs offers no facts to support her conversion claim. In fact, Plaintiff offers

7 exhibits evidencing that SPS is the loan servicer.3 Furthermore, Plaintiff purports to have

8 attempted to tender the amount owing under the loan to SPS, which is at direct odds with any

9 contention that SPS is not the loan servicer.4

10 Therefore, a claim for conversion should be dismissed without leave to amend.

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12 CONCLUSION

13For the reasons set forth above and in the Motion to Dismiss, SPS respectfully requests

14 that its Motion to Dismiss the First Amended Complaint is granted without leave to amend.

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16 Respectfully submitted,

17 WRIGHT, FINLAY & ZAK, LLP

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19 Dated: July 29, 2011 By: /S/ William I. Idleman, Esq.

Gwen H. Ribar, Esq.20 William J. Idleman, Esq.

21 Attorneys for Defendant,SELECT PORTFOLIO SERVICING, INC.

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?83 See Plaintiffs Declaration to the O osition, Exhibits 1-4.4 See Plaintiffs Opposition, page 16, lines 20



PROOF OF SERVICE


PROOF OF SERVICE

I, Marilee V. Johnson, declare as follows:

I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and

not a party to the within action. My business address is 4665 MacArthur Court, Suite 280, Newport

Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such

correspondence is deposited with the United States Postal Service the same day in the ordinary course of

business.

On July 29, 2011,1 served the within REPLY TO PLAINTIFF'S OPPOSITION TO THE

MOTION TO DISMISS THE FIRST AMENDED COMPLAINT BY DEFENDANT SELECT

PORTFOLIO SERVICING, INC. on all interested parties in this action as follows:

[X] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as

follows:

Mitchell L. Abdallah, Esq.ABDALLAH LAW GROUP, P.C.

555 Capitol Mall, Ste. 725

Sacramento, CA 95814

(916) 446-1974; FAX (916) 446-3371

(BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date

following ordinary business practices.

(BY PERSONAL SERVICE) I caused to be delivered such envelope by hand delivered to the

office of the addressee.

(BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 608-9142, compliedwith California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to

California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the

transmission, a copy of which is attached to the original Proof of Service.

(BY ELECTRONIC MAIL) I caused each such document to be transmitted electronically to the parties at the e-mail address indicated. To the best my knowledge, the transmission was reported as

complete, and no error was reported that the electronic transmission was not completed.

(BY NORCO OVERNITE - NEXT DAY DELIVERY) I placed true and correct copies of thereof

enclosed in a package designated by Norco Ovemite with the delivery fees provided for.

(FEDERAL) I declare that I am employed in the office of a member of the bar of this court atwhose direction the service was made.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on July 29, 2011, at Newport Beach, California.

C t- j 7 V:L.)

6 Marilee V. Johnson

07-29-2011 doc 26 sps reply to opposition to motion to dismiss argument

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