Case No. 5:16-Cv-01518 JGB (DTBX) Answer To Complaint by Defendants The Bank of New York Mellon and Nationstar Mortgage LLC

Case 5:16-cv-01518-JGB-DTB Document 21 Filed 08/10/16 Page 1 of 14 Page ID #:143
1 GREEN & HALL, LLP

HOWARD D. HALL, State Bar No. 145024
2 hdhall@greenhall.com
RACHEL C. ZWERNEMANN, State Bar No. 286515
3 rzwernemann@greenhall.com
1851 East First Street, 10th Floor
4 Santa Ana, California 92705-4052
Telephone: (714) 918-7000
5 Facsimile: (714) 918-6996
6 Attorneys for Defendants
The Bank of New York Mellon as Trustee
7 for Structured Asset Mortgage
Investments II Inc. Mortgage Pass-
8 Through Certificate Series 2005-AR8 and
Nationstar Mortgage LLC (erroneously
9 sued as Nation star Mortgage)
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION
12
13 Socorro Diaz & Francisco Diaz, CASE NO. 5:16-cv-01518 JGB(DTBx)
14 Plaintiffs, JUDGE: Hon. Jesus G. Bernal
CTRM.: 1
15 vs.
ANSWER TO COMPLAINT BY
16 GB Inland Properties, LLC and/or Its DEFENDANTS THE BANK OF
Successors and/or Assignees In Interest; NEW YORK MELLON AS
17 The Bank of New York Mellon as TRUSTEE FOR STRUCTURED
Trustee for Structured Asset Mortgage ASSET MORTGAGE
18 Investments II, Inc., Mortgage Pass INVESTMENTS II INC.
thorough Certificates Series2005-AR8; MORTGAGE PASS-THROUGH
19 Nation star Mortgage; Continental HL- CERTIFICATE SERIES 2005-AR8
011 Trust; Rafael Perez; Quality Loan AND NATIONSTAR MORTGAGE
20 Servicing, Platinum Capital Group and LLC
Does 1 through 100 Inclusive,
21
Defendants. ACTION FILED: July 12, 2016
22 TRIAL DATE: None Set
23 Pursuant to Rule 8(b) of the Federal Rules of Civil Procedure, Defendants
24 THE BANK OF NEW YORK MELLON AS TRUSTEE FOR STRUCTURED
25 ASSET MORTGAGE INVESTMENTS II INC. MORTGAGE PASS-THROUGH
26 CERTIFICATE SERIES 2005-AR8 (herein “BNYM”) and NATIONSTAR
27 MORTGAGE LLC (erroneously sued as “Nation star Mortgage”) (herein
28 “NATIONSTAR”) (collectively “Defendants”) answer the Complaint of Plaintiffs
Case No. 5:16-cv-01518 JGB(DTBx)
ANSWER TO COMPLAINT BY DEFENDANTS THE BANK OF NEW YORK MELLON AND NATIONSTAR
MORTGAGE LLC
P:\DOCS\Nationstar.Diaz(Francisco)\Pleadings\Answer.Complaint.NSM.BNYM.docx
1 SOCORRO DIAZ and FRANCISCO DIAZ (“Plaintiffs”) brought on behalf of

2 themselves and members of the purported class. If an averment is not specifically
3 admitted, it is hereby denied.
4 ANSWER TO COMPLAINT
5 SUMMARY OF ACTION
6 1. Paragraph 1, contains legal conclusions and argument as to which no
7 response is required. To the extent a response is required, Defendants deny each
8 and every allegation continued therein.
9 2. Answering Paragraph 2, Defendant BNYM denies that it is in the
10 business of servicing mortgage loans on behalf of lenders and investors. Defendant
11 NATIONSTAR admits that it is in the business of servicing mortgage loans on
12 behalf of lenders and investors. Except as expressly admitted or affirmatively
13 denied, Defendants lack sufficient knowledge or information to form a belief
14 concerning the truth of the factual allegations contained therein and on that basis
15 deny such allegations.
17 response is required. To the extent a response is required, Defendants lack
18 sufficient knowledge or information to form a belief concerning the truth of the
19 factual allegations contained therein and on that basis deny such allegations.
20 4. Answering Paragraph 4(a) – (c), Defendants lack sufficient knowledge
21 or information to form a belief concerning the truth of the factual allegations
22 contained therein and on that basis deny such allegations.
23 5. Answering Paragraphs 5-10, Defendants lacks sufficient knowledge or
24 information to form a belief concerning the truth of the factual allegations contained
25 therein and on that basis deny such allegations. Paragraphs 5–10 further contain
26 legal conclusions and argument as to which no response is required.
27 6. Paragraphs 11-12, contain legal conclusions and argument as to which
28 no response is required. To the extent a response is required, Defendants lacks
2 Case No. 5:16-cv-01518 JGB(DTBx)
MORTGAGE LLC

3 PARTIES
4 7. Answering Paragraphs 13-16, Defendants lack sufficient knowledge or
6 therein and on that basis deny such allegations.
8 no response is required. To the extent a response is required, Defendants lack
11 9. Answering Paragraph 19, Defendant BNYM denies that it is a
12 mortgage loan servicing company. Defendant NATIONSTAR admits that it acts as
13 a mortgage loan servicer. Except as expressly admitted or affirmatively denied,
14 Defendants lack sufficient knowledge or information to form a belief concerning the
15 truth of the factual allegations contained therein and on that basis deny such
16 allegations. Paragraph 19 further contains legal conclusions and argument as to
17 which no response is required.
21 JURISDICTION AND VENUE
26 12. Answering Paragraph 23, Defendants lack sufficient knowledge or
MORTGAGE LLC
1 13. Answering Paragraph 24, Defendant BNYM admits that it owns loans
2 serviced by agents who do business in the State of California, specifically including
3 the Counties of Riverside and Los Angeles. Defendant NATIONSTAR admits that
4 it is qualified to do business in the State of California and acts as servicer for
5 mortgage loans secured by real property in the State of California, specifically
6 including the Counties of Riverside and Los Angeles. Except as expressly admitted,
7 Defendants lack sufficient knowledge or information to form a belief concerning the
8 truth of the factual allegations contained therein and on that basis deny such
9 allegations.
13 15. Paragraph 26 contains legal conclusions and argument as to which no
17 FACTUAL SUMMARY
18 (THE HAMP PROGRAM)
23 17. Answering Paragraph 38, Defendant NATIONSTAR admits that it
24 participates in HAMP modifications where applicable. Except as expressly
25 admitted, Defendants lack sufficient knowledge or information to form a belief
27 deny such allegations. Paragraph 38 further contains legal conclusions and
28 argument as to which no response is required.
MORTGAGE LLC
1 18. Paragraphs 39-41 contain legal conclusions and argument as to which

5 19. Answering Paragraph 42, Defendant NATIONSTAR admits that it
6 participates in HAMP modifications where applicable. Except as expressly
7 admitted, Defendants lack sufficient knowledge or information to form a belief
9 deny such allegations. Paragraph 42 further contains legal conclusions and
10 argument as to which no response is required.
13 therein and on that basis deny such allegations. Paragraphs 43-47 further contain
15 21. Answering Paragraph 48, Defendants admit that Plaintiffs obtained a
16 mortgage loan secured by Deed of Trust recorded on the real property, located at
17 3891 Fox Tail Lane, Riverside, CA 92509. Defendants lack sufficient knowledge or
19 therein and on that basis deny such allegations. Paragraph 48 further contains legal
20 conclusions and argument as to which no response is required.
24 23. Paragraph 51 contains legal conclusions and argument as to which no
28
5
MORTGAGE LLC

15 28. Answering Paragraphs 73-75, Defendants lack sufficient knowledge
17 contained therein and on that basis deny such allegations.
22 CLASS ACTION ALLEGATIONS
23 30. Answering Paragraph 85, Defendants deny all allegations therein.
28
6
MORTGAGE LLC
1 32. Paragraphs 90-104 contain legal conclusions and argument as to which

7 contained therein and on that basis deny such allegations. Paragraphs 105-107
8 further contain legal conclusions and argument as to which no response is required.
9 FIRST CAUSE OF ACTION
10 (Violation of the California Fair Debt Collection Practices Act Against All
11 Defendants) & (California Civil Code Section 1788 et seq.)
12 34. Answering Paragraph 108, Defendants incorporate by reference all of
13 the above paragraphs of this Answer as through fully stated herein. Paragraph 108
14 contains legal conclusions and argument as to which no response is required. To the
15 extent a response is required, Defendants deny all allegations therein.
16 35. Paragraphs 109-111 contain legal conclusions and argument as to
17 which no response is required. To the extent a response is required, Defendants lack
20 SECOND CAUSE OF ACTION
21 (Unfair Competition Against All Defendants)
22 (Violation of Business & Professions Code Section 17200, et seq.)
24 the above paragraphs of this Answer as through fully stated herein. Paragraph 112
25 contains legal conclusions and argument as to which no response is required. To the
26 extent a response is required, Defendants deny all allegations therein.
MORTGAGE LLC

7 THIRD CAUSE OF ACTION
8 (Breach of Written Contract Against All Defendants)
10 the above paragraphs of this Answer as through fully stated herein.
27 / / /
28 / / /
8
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1 FOURTH CAUSE OF ACTION

2 (Fraud Against All Defendants)
9 FIFTH CAUSE OF ACTION
10 (Promissory Estoppel Against All Defendants)
17 AFFIRMATIVE DEFENSES
18 Defendants plead the following separate defenses. Defendants reserve the
19 right to assert additional affirmative defenses that discovery indicates are proper.
20 FIRST AFFIRMATIVE DEFENSE
21 (Res Judicata)
22 1. As a separate and first affirmative defense to the Complaint and to the
23 causes of action set forth therein, Defendants allege that the Complaint is barred by
24 the doctrine of res judicata.
25 SECOND AFFIRMATIVE DEFENSE
26 (Estoppel)
27 2. As a separate and second affirmative defense to the Complaint and to
28 the causes of action set forth therein, Defendants allege that Plaintiffs have either
MORTGAGE LLC
1 expressly or implicitly engaged in conduct which results in Plaintiffs’ recovery

2 being barred in whole or in part by the equitable doctrine of estoppel and including
3 judicial estoppel.
4 THIRD AFFIRMATIVE DEFENSE
5 (Bona Fide Error 15 U.S.C. § 1692k(c))
6 3. As a separate and third affirmative defense to the Complaint and to the
7 causes of action set forth therein, Defendants allege that any violation alleged may
8 be the result of a bona fide error notwithstanding the maintenance of procedures
9 reasonably adapted to avoid any such error.
10 FOURTH AFFIRMATIVE DEFENSE
11 (Statute of Frauds)
12 4. As a separate and fourth affirmative defense to the Complaint and to
13 the causes of action set forth therein, Defendants allege that Plaintiff’s Complaint is
14 barred by the Statute of Frauds.
15 FIFTH AFFIRMATIVE DEFENSE
16 (Statute of Limitations)
17 5. As a separate and fifth affirmative defense to the Complaint and to the
18 causes of action set forth therein, Defendants allege that the purported causes of
19 action asserted in the Complaint are barred by statutes of limitation as may be
20 applicable, including, but not limited to 15 U.S.C. § 1692k(d), California Code of
21 Civil Procedure §§ 335, 335.1, 336, 337, 338, 339, 340, 340.5, 340.9, 343, 344 and
22 474.
23 SIXTH AFFIRMATIVE DEFENSE
24 (HBOR Inapplicable)
25 6. As a separate and sixth affirmative defense to the Complaint and to the
26 causes of action set forth therein, Defendants are informed and believe, and based
27 thereon alleges, that HBOR does not apply or provide protections to Plaintiffs.
28
10
MORTGAGE LLC
1 SEVENTH AFFIRMATIVE DEFENSE

2 (No Material Violation Under California Civil Code Section 2924.12(a)(1))
3 7. As a separate and seventh affirmative defense to the Complaint and to
4 Plaintiffs’ causes of action for violation of HBOR set forth therein, Defendants
5 allege that Plaintiffs have failed to allege any material violation of HBOR as
6 required under California Civil Code Section 2924.12(a)(1).
7 EIGHTH AFFIRMATIVE DEFENSE
8 (Failure to Mitigate)
9 8. As a separate and eighth affirmative defense to the Complaint and to
10 the causes of action set forth therein, Defendants are informed and believe and,
11 based thereon, alleges that Plaintiffs have failed, refused and neglected to take
12 reasonable steps to mitigate the alleged damages, if any, thus barring or diminishing
13 Plaintiffs’ recovery herein.
14 NINTH AFFIRMATIVE DEFENSE
15 (Causation)
16 9. As a separate and ninth affirmative defense to the Complaint and to the
17 causes of action set forth therein, Defendants alleges that the damages alleged to
18 have been suffered by Plaintiffs in the Complaint were not caused, either in-fact or
19 proximately, by Defendants’ alleged acts or failures to act.
20 TENTH AFFIRMATIVE DEFENSE
21 (Laches)
22 10. As a separate and tenth affirmative defense to the Complaint and to the
23 causes of action set forth therein, Defendants alleges that Plaintiffs are barred in
24 whole or in part from prosecuting the causes of action set forth in the Complaint by
25 the doctrine of laches.
26 / / /
27 / / /
28 / / /
11
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1 ELEVENTH AFFIRMATIVE DEFENSE

2 (Unclean Hands)
3 11. As a separate and eleventh affirmative defense to the Complaint and to
4 the causes of action set forth therein, Defendants allege that Plaintiffs are barred in
5 whole or in part from prosecuting the causes of action set forth in the Complaint by
6 the doctrine of unclean hands.
7 TWELFTH AFFIRMATIVE DEFENSE
8 (Not Liable for Act or Omission of Subordinate)
9 12. As a separate and twelfth affirmative defense to the Complaint and to
10 the causes of action set forth therein, Defendants allege that insofar as Defendants
11 have delegated any duty to any subordinate, such delegation was at all times done in
12 good faith and with due care. Defendants are therefore not liable for any act or
13 omission of any subordinate.
14 THIRTEENTH AFFIRMATIVE DEFENSE
15 (Failure of Consideration)
16 13. As a separate and thirteenth affirmative defense to the Complaint and
17 each purported cause of action contained therein, Defendants allege that any
18 performance due by the Defendants under any contract alleged in the Complaint was
19 excused by failure of consideration.
20 FOURTEENTH AFFIRMATIVE DEFENSE
21 (Failure to Allege Class Action)
22 14. As a separate and fourteenth affirmative defense to the Complaint and
23 each purported cause of action contained therein, Plaintiff’s claims, and each of
24 them, brought on behalf of themselves and the members of the purported class as set
25 forth in the Complaint, cannot and should not be maintained on a class-action or
26 representative action because: those claims, and each of them, fail to meet the
27 necessary requirements for class certification, including, class ascertainability,
28 typicality, commonality, numerousity, manageability, superiority, and adequacy of
MORTGAGE LLC
1 the class representative; lack of a community interest among the putative class; and
2 because the class certification is inappropriate due to Defendants’ lawful policies.
3 FIFTEENTH AFFIRMATIVE DEFENSE
4 (Reservation)
5 15. As a separate and fifteenth affirmative defense to the Complaint and to
6 the causes of action set forth therein, Defendants reserve the right to amend its
7 answer to assert further affirmative defenses that are not presently known but may
8 become known and available through further investigation and discovery.
9 WHEREFORE, Defendants prays for relief as follows:
10 1. That the Complaint be dismissed, with prejudice and in its entirety;
11 2. That Plaintiffs take nothing by reason of this Complaint and that
12 judgment be entered against Plaintiff and in favor of Defendants;
13 3. That Defendants be awarded its attorneys’ fees and costs incurred in
14 defending this action;
15 4. That Defendants be granted such other and further relief as the Court
16 may deem just and proper.
17
18 DATED: August 10, 2016 Respectfully submitted,
19
GREEN & HALL, LLP
20
21
22 By: /s/ Rachel C. Zwernemann
Howard D. Hall
23
Rachel C. Zwernemann
24 Attorneys for Defendants
25 The Bank of New York Mellon as Trustee for
Structured Asset Mortgage Investments II Inc.
26 Mortgage Pass-Through Certificate Series 2005-
27 AR8 and Nationstar Mortgage LLC
(erroneously sued as Nation star Mortgage)
28
13
MORTGAGE LLC
1 CERTIFICATE OF SERVICE
2 I am employed in the County of Orange, State of California. I am over the
age of 18 and not a party to the within action. My business address is 1851 East
3 First Street, 10th Floor, Santa Ana, CA 92705-4052.
4 On August 10, 2016, I served the within document(s) described as:
5 ANSWER TO COMPLAINT BY DEFENDANTS THE BANK OF
NEW YORK MELLON AS TRUSTEE FOR STRUCTURED
6 ASSET MORTGAGE INVESTMENTS II INC. MORTGAGE
PASS-THROUGH CERTIFICATE SERIES 2005-AR8 AND
7 NATIONSTAR MORTGAGE LLC
8 on each interested party in this action as stated below:
9 Francisco Diaz
Socorro Diaz
10 3891 Fox Tail Lane
Riverside, CA 92509
11 (951) 733-3401
Plaintiffs in Pro Per
12
BY MAIL: By placing a true copy of the foregoing document(s) in a sealed
13 envelope addressed as set forth above. I placed each such envelope for collection
and mailing following ordinary business practices. I am readily familiar with this
14 Firm’s practice for collection and processing of correspondence for mailing. Under
that practice, the correspondence would be deposited with the United States Postal
15 Service on that same day, with postage thereon fully prepaid at Santa Ana,
California, in the ordinary course of business. I am aware that on motion of the
16 party served, service is presumed invalid if postal cancellation date or postage meter
date is more than one day after date of deposit for mailing in affidavit.
17
I declare under penalty of perjury under the laws of the United States of
18 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
19
Executed on August 10, 2016, at Santa Ana, California.
20
21
/s/ Rebecca Vogel
22 Rebecca Vogel
23
24
25
26
27
28
MORTGAGE LLC

Case No. 5:16-Cv-01518 JGB (DTBX) Answer To Complaint by Defendants The Bank of New York Mellon and Nationstar Mortgage LLC

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Case 5:16-cv-01518-JGB-DTB Document 21 Filed 08/10/16 Page 1 of 14 Page ID #:143

1 GREEN & HALL, LLP

1 SOCORRO DIAZ and FRANCISCO DIAZ (“Plaintiffs”) brought on behalf of

1 sufficient knowledge or information to form a belief concerning the truth of the

1 18. Paragraphs 39-41 contain legal conclusions and argument as to which

1 24. Answering Paragraphs 52-68, Defendants lack sufficient knowledge or

1 32. Paragraphs 90-104 contain legal conclusions and argument as to which

1 sufficient knowledge or information to form a belief concerning the truth of the

1 FOURTH CAUSE OF ACTION

1 expressly or implicitly engaged in conduct which results in Plaintiffs’ recovery

1 SEVENTH AFFIRMATIVE DEFENSE

1 ELEVENTH AFFIRMATIVE DEFENSE

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