On December 01, 2021 aComplaint,Petitionwas filedinvolving a dispute betweenCapital Llc Cd,Crowd Lending Fund One Llc,Customers Bank As Assignee Of Cd Capital, Llc, Assignee Of Crowd Lending Fund One, Llc,andAmz Group Llc,Bivens & Associates Architects Pllc,Broadway Advance Llc,Change Capital Holdings I Llc,Deere Credit Inc,Jeffrey Holbrook,John Deere Construction & Forestry Co,Page Trucking Inc,Pcl Properties Llc,Reading Athracite Company,Spg Advance Llc,for Real Property - Mortgage Foreclosure - Commercialin the District Court of Oswego County.
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FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF OSWEGO __ CUSTOMERS BANK, as assignee of CD Capital, LLC, Index No. assignee of Crowd Lending Fund One, LLC, Plaintiff, S U M M O N S -vs- Mortgaged property: PCL PROPERTIES LLC; JEFFREY HOLBROOK; 305 E. Seneca Street BROADWAY ADVANCE, LLC; AMZ GROUP, LLC; Oswego, NY 13126 BIVENS & ASSOCIATES ARCHITECTS PLLC; READING ATHRACITE COMPANY; SPG ADVANCE, LLC; DEERE CREDIT, INC. AND JOHN DEERE CONSTRUCTION & FORESTRY, CO.; CHANGE CAPITAL HOLDINGS I,LLC; DOE" DOE," "JOHN AND "JANE Defendants. TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of Appearance, on the Plaintiffs attorneys within twenty (20) days, after the service of this Summons exclusive of the day of service (or within 30 days aher the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken agaiñst you by default for the reliefdemanded in the Complaint. Oswego County is designated as the place of trial. The basis of venue is the location of the mortgaged property. DATED: November 21 Amanda C. Shaw Riehlman, Shafer & Shaw, LLC Attorneys for Plaintiff 7693 Route 281, PO Box 544 Tully, New York 13159-0544 (315) 696-6347 THE LAW FIRM OF RIEHLMAN, SHAFER & SHAW, LLC IS ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS LAW FIRM IS A DEBT COLLECTOR. 1 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 NOTICE TO DEFENDANT DURING THE CORONAVIRUS EMERGENCY, YOU MIGHT BE ENTITLED BY LAW TO TAKE ADDITIONAL DAYS OR WEEKS TO FILE AN ANSWER TO THIS COMPLAINT. . PLEASE CONTACT YOUR ATTORNEY FOR MORE INFORMATION. IF YOU DON'T HAVE AN ATTORNEY, PLEASE VISIT http://ww2.nycourts.gov/admin/OPP/foreclosures.shtmi OR https://www.nycourts.gov/courthelp/Homes/foreclosures.shtmi 2 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF OSWEGO CUSTOMERS BANK, as assignee of CD Capital, LLC, Index No. assignee of Crowd Lending Fund One, LLC, Plaintiff, VERIFIED COMPLAINT TO FORECLOSE MORTGAGE -vs- Mortgaged property: PCL PROPERTIES LLC; JEFFREY HOLBROOK; 305 E. Seneca Street BROADWAY ADVANCE, LLC; AMZ GROUP, LLC; Oswego, NY 13126 BIVENS & ASSOCIATES ARCHITECTS PLLC; READING ATHRACITE COMPANY; SPG ADVANCE, LLC; DEERE CREDIT, INC. AND JOHN DEERE CONSTRUCTION & FORESTRY, CO.; CHANGE CAPITAL HOLDINGS I,LLC; DOE" DOE," "JOHN AND "JANE Defendants. The Plaintiff herein, by Riehlman, Shafer & Shaw, LLC, itsattorneys, complains of the Defendants above named, and for itscause of action, alleges: FIRST: That the Plaintiff herein is a Pennsylvannia Bank authorized to conduct büsiñess in the State of New York, having it offices at One International Place, Boston, Massachusetts, 02110. SECOND: Upon information and belief, that at all times hereinafter mentioned, the defendants set forth in Exhibit A-Defendants are made defendants in this action in the capacities therein alleged and for the reasons set forth in said exhibit. THIRD: That on June 14, 2019, for the purpose of securing payment to Crowd Lending Fund One, LLC of the sum of One Million Five Hundred Fifty Thousand Dollars ($1,550,000.00) with interest thereon, PCL Properties, LLC executed and delivered to Crowd Leading Fund One, LLC a Note bearing the same date and whereby itcovenanted to pay to Crowd Lending Fund One, LLC, itssuccessors and assigns, the sum of $1,550,000.00 with interest thereon at the rate of 14.0% per annum, payable in monthly interest payments on the unpaid principal balance through July 1, 2020, when the entire unpaid balance of principal and accrued interest was due and payable. Upon the event of the default under the terms of the Note, the unpaid principal balance shall bear interest at the rate of 18% per annum, cmpunded aññüãlly. A copy of said Note is annexed hereto and marked Exhibit B. 3 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 FOURTH: That on June 14, 2019, an Uñlimited Guaranty was executed and delivered to Crowd Lending Fund One, LLC wherciñ Jeffrey Holbrook unconditionally guaranteed "THIRD" payment to Crowd Lending Fund One, LLC of the obligation set forth in paragraph herein. A copy of the Unlimited Guaranty is annexed hereto and marked Exhibit C. FIFTH: That on June 14, 2019, a Loan Agreement was executed and delivered by Crowd Lending Fund One, LLC and PCL Properties, LLC, a copy of which is annexed hereto and marked Exhibit D. SIXTH: That on August 6, 2020, an Amendment to Note was executed by PCL Properties, LLC amending the final payment date of the unpaid principal and accrued interest to October 14, 2020, a copy of which is annexed hereto and marked Exhibit E. SEVENTH: That a further Amendment to Note was executed by PCL Properties, LLC, Jeffrey Holbrook, and Crowd Leñdiñg Fund One, LLC, amending the final payment date of the unpaid principal and accrued interest to February 26, 2021, a copy of which is annexed hereto and marked Exhibit F. EIGHTH: That as security for the payment of the aforesaid indebtedness, a Mortgage was executed, acknowledged and delivered to Crowd Lending Fund One, LLC, its successors or assigns, [Exhibit G being a copy of said Mortgage], whereby PCL Properties, LLC pledged to Crowd Leñdiñg Fund One, LLC, itssuccessors and assigns, the premises known as 305 East Seneca Street, Oswego, New York, tax map no. 128.26-03-03 (hereinafter called "mortgaged premises") more particularly described therein, under certain conditions with rights, duties and privileges between or among them as more fully appears in said Mortgage. NINTH: That the said Mortgage was duly recorded (and the mortgage tax due thereon in the Oswego Clerk's Office on June 2019 as Instrument No. R- duly paid) County 25, 2019-005151. The Note and securing Mortgage provide that, in the case of default in payment of the principal sum secured and the interest that might grow due and after the time frame to cure said default has passed, the mortgagee may declare the principal sum immediately due and payable and it further provided that in case of said default the mortgagee was empowered to sell the premises according to law. TENTH: On June 30, 2021 an Assignment of Mortgage was executed by Crowd "FOURTH" Lending Fund One, LLC assigning the Mcitgage set forth in above to CD Capital, LLC which Assignment of Mortgage was recorded in the Oswego County Clerk's Office on July 9, 2021 as Instrument No. R-2021-007817. A copy of the Assignment of Mortgage is annexed herto as Exhibit H. ELEVENTH: On June 30, 2021 an Assignment of Mortgage was executed by CD Capital, LLC further assigning the Mortgage herein to Customers Bank, which Assigñment of Mortgage was recorded in the Oswego County Clerk's Office on September 14, 2021 as Instrument No. R-2021-010575. A copy of the Assignment of Mortgage is aññexed herto as Exhibit I. 4 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 TWELFTH: That the Plaintiff is the owner of the subject Mortgage and Note, which said documents are, at the time of commencement of this action, in Plaintiffs physical possession thereof. Plaintiff has complied with all of the provisions of §595-a of the Banking Law and any rules and regulations promulgated thereunder, §6-1 or §6-m of the Banking Law, and §l304 and §l306 of the Real Property Actions and Proceedings Law, if applicable, and, as such, has standing to bring the within action. THIRTEENTH: That the Defendant, PCL Properties LLC and Jeffrey Holbrook, so named, have failed and neglected to comply with the conditions of said Note and Mortgage by failing to pay the principal balance, together with all accrued interest and late charges, upon expiration of the term of repayment. FOURTEENTH: That as more than 30 days have elapsed since payment in full was due and itremains unpaid according to the terms of the Note and Mortgage, the Plaintiff hereby "EIGHTH" elects to call due the entire amount secured by the Mortgage described in paragraph hereof. Accordingly, there is now due and owing to Plaintiff from Defendants the principal sum of $1,571,597.94, accrued but unpaid interest at the contractual rate of 14.0% through expiration of the loan term of February 26, 2021 in the sum of $332,797.71, default interest at the rate of 18.0% from February 26, 2021 to September 15, 2021 in the sum of $91,676.55, late fees in the sum of $15,585.01, with future interest thereon at the default rate of 18.0% per annum from September 15, 2021. FIFTEENTH: That in order to protect itssecurity, the Plaintiff may be compelled during the pendency of this action to pay local taxes, assessments, water rates, insurance premiums and other charges affecting the mortgaged premises, and the Plaintiff requests that any sums thus paid by it forsaid 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. SIXTEENTH: That all the Defendants herein have, or claim to have, some interest in, or lien upon said mortgaged premises or some part thereof, which interest or lien, ifany, has accrued subsequent to the lien of Plaintiffs Mortgage, excepting any real property taxing authorities named herein. SEVENTEENTH: That the Plaintiff is now the sole, true and lawful owner of the said Note and Mortgage securing the same and there are no pending proceedings at law or otherwise to collect or enforce the Note and Mortgage. EIGHTEENTH: That Exhibits A through I are expressly incorporated and made a part of this 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. NINETEENTH: That the Plaintiff has demanded payment from the Defendants, PCL Properties LLC and Jeffrey Holbrook, of the sums due and the Defeñdants have failed or neglected to make such payment. 5 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 TWENTIETH: That ifthe security for the indebtedness consists of more than one parcel Plaintiff respectfully requests that the judgment of forcelssure provide for the sale of the parcels in a particular order to the extent necessary to satisfy the iñdebtedness. WHEREFORE, Plaintiff demands judgmeñt against the Defendants as follows: 1. That the interest of all Defendants and persons claiming under them be declared subordinate to the interest of the Plaintiff, excepting any real property taxing authorities named herein. 2. That the Defendants, PCL Properties LLC and Jeffrey Holbrook, and all other Defendants and all other persons under them subsequent to the filing of the Notice of Pendency in this action on the Oswego County Clerk's Office, be barred and foreclosed of all right, title,claim, lien and equity of redemption in the said mortgaged premises, and each and every part thereof. 3. That the mortgaged premises be declared to be sold according to law, and that the mortgaged premises be sold in one parcel. 4. That the amount of principal and interest due Plaintiff under the Note and Mortgage be adjudged and that from the monies arising from said sale, the Plaintiff be paid the amount due on the Note and Mortgage with interest to the time of said payment with the expenses of the sale, including reasonable attorneys fees, and the costs and any monies advanced to protect the lien of the Plaintiffs Mortgage including taxes, water and sewer charges, insurance premiums, and all other charges and liens thereon paid with interest upon said amounts from the date of the respective payments or advances thereof. 5. That the Defendants, PCL Properties LLC and Jeffrey Holbrook, be adjudged to pay any deficiency which may remain, unless said Defendants have been discharged in bankruptcy. 6. That the Plaintiff have such other and further relief as may seem just and proper, together with the costs and disbursements of this action. Dated: November 021 Amanila C'Shaw RIEHLMAN, SHAFER & SHAW, LLC Attorneys for Plaintiff 7693 Route 281 PO Box 544 Tully, New York 13159-0544 (315) 696-6347 6 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 STATE OF MASSACHUSETTS ) COUNTY OF SUPTimlC ) ss.: Daniel Najarian, being duly sworn, deposes and says that deponent is Secretary of Crowd a Delaware as Manager of CD a Mam±icetre limited Lending, Inc., corporation, Capital, LLC, liability company, agent for the plaintiff, Customers Bank; that deponent has read the foregoing Su==a== and Complaint and knows the contents that the same is trueto deponent's own thereof; knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes itto be true. CD Capital, LLC ts Manager, Crowd , . By: D arian, Secretary Sworn to before me this 13 day of November, 2021 COMMONWEALTHOF MASSACHUSETTS / persõnally appeared before medhe undersigned notary public, and proved fo me through satisfactory evidence, which is/her identi were / b ..-- and swore or affirmed the truthful and accurate to the bes.t attached document's contents of his/her kno edge on this ._da CTORIA SHEA, N t Public My Commission Expgres April4, 2025 7 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 ElGHBIT A 8 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 EXHIBIT A - DEFENDANTS Defendants Capacity PCL Properties, LLC Fee owner, mortgagor and obligor of Note Jeffrey Holbrook Guarantor of indebtedness Broadway Advance, LLC Judgment creditor AMZ Group, LLC Judgment creditor Bivens & Associates Architects PLLC Judgment creditor Reading Athracite Company Judgment creditor SPG Advance, LLC Judgment e edhur Deere Credit, Inc. Judgment creditor John Deere Construction & Forestry Co. Judgment creditor Change Capital Holdings I,LLC Judgment creditor Doe" Doe" "John and "Jane Fictitious defendants, itbeing the intention of plaintiff to designate any and all occupants and parties having an interest in the mortgaged premises being foreclosed herein and not otherwise identified above. 9 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 EXHIBIT B 10 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 NOTE $1,550,000.00 Date: June 14, 2019 LENDER: Crowd Lending Fund One, LLC 300 A Street,Suite 101 Boston, MA 02021 BORROWER: PCL PROPERTIES, LLC 305 EAST SENECA STREET OSWEGO, NEW YORK, 13126 GUARANTORS: JEFFREY HOLBROOK LOAN AMOUNT: One Million Five Hundred Fifty Thousand and 00/100 Dollars ($1,550,000.00) SECURED PROPERTY: 305 EAST SENECA STREET, OSWEGO, NEW YORK, 13126 FINAL PAYMENT DATE: June 14, 2020 Por value received, Borrower hereby promises to pay to the order of Lender, at the office of 300 A Street, Suite 101, Boston, MA 02021, or at such other office as the holder hereof may designate, the principal sum of One Hundred Eighty Thousand One Hundred and 00/100 DOLLARS ($1,550,000.00), with interest thereon and additional payments, payable as follows and under the terms provided herein: l. INTEREST. Borrower shall pay intereston the principal balance of thisNote outstanding and unpaid, in arrears, computed on the basisof a three hundred sixty (360) day year and equal to a fixed annual rate ("InterestRate") of Eleven and 00/100 percent (14.00%) per annum until the Loan Amount ispaid in full. 2. PAYMENTS. Commencing on August 1, 2019, and on the same date of each month through and including July 1, 2020, Borrower shallmake monthly payments of interestonly on the disbursed Loan Amount, payable in arrears in the amount of interest that accrues on the disbursed loan amount ("Monthly Interest Payments"), on the Final Payrnent Date (unless due earlier pursuant to the terms of the Note), Borrower shall pay the entire Loan Amount hereof, and allaccrued interestand any unpaid Additional Payments, provided for in Section 3 below. Lender is under no obligation to refinance the Loan Amount at the Final Payment Date. All payments shall be made in immediately available funds in lawfillmoney of the United States of America at the address of Lender stated above, no later than 12:00 pm on the date on which such payment isdue. 11 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 3. PREPAYMENT Borrower has the rightto prepay allor a portion of the loan without penalty. No prepaid emount may be re-borrowed. Borrower shall not receive any portion of the origination fees or finance charges iffull payment ismade before the Final Payment Date. 4. MORTGAGE: Borrower's performance of itsobligations hercüñder is secured by a first priorityMortgage of even date, the terms of which are incorporated hemin. 5. BORROWER'S REPRESENTATIONS AND WARRANTIES: Borrower hereby represents and warrants to Lender on the date hereof as follows: A. Existence; Compliance With Laws. Borrower is (i)a limited liabilitycompany duly formed, validly existing and in good standing under the laws of the state of itsjurisdiction of organization and has the requisite power and authority, and the legal right,to own, lease and operate itsproperties and assets and toconduct itsbusiness as itis now being conducted and (ii)isin compliance with alllaws and ordersin effect. B. Power and Authority. Borrower has the power and authority, and the legal right, to execute and deliver this Note and Mortgage and to perform its cb!!¡;;‡!añs hereunder and thereunder. C. Authorization: Execution and Delivery. The execution and delivery of this Note and the Mortgage by Borrower and the performance of itsobligations hereunder and thereunder have been duly âüthorized by all necessary corporate/limited liability/limitedpartnership action in accordance with all applicable Laws. Borrower has duly executed and delivared this Note and Mortgage. D. No Approvals. No consent or authorization of, filingwith, notice to or other act by, or in respect of, any Governmental Authority or any other Person isrequired in order for Borrower to execute, deliver,or perform any ofits obligations under thisNote or the Mortgage. E. No Violations. The execution and delivery of this Note and the Mortgage and the conm=nmation by Borrower of the trassactions contemplated hereby and thereby do not and will not (i)violate any provision of Borrower's organizational documents; (ii) violate any Law or Order applicable to Borrower or by which any of itsproperties or assets may be bound; or (iii)constitute a default under any material agreement or contract by which the Borrower may be bound. F. Enforceability. Each of the Note and Mortgage isa valid, legaland binding obligation of Borrower, enforceable against Borrower in accordance with itsterms. G. No Litigation. No action, suit, litigation,investigation or proceeding of, or before, any arbitrator or governmenta! authority ispêñdiñg or threatened by or against Borrower or any of itsproperty or assets (i)with respect to the Note, the Mortgage or any of the transactions contemplated hereby or thereby or (ii)that would be expected to materially adversely affect 2 12 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 Borrower's an=adal condition or the of Borrower to perform itsobligations under the ability Note or Mortgage. 5. BORROWER'S AFFIRMATIVE COVENANTS. Until allamounts outsta.nding in thisNote have been paid in full,Borrower shall: A. Maintenance of Existence. (i)preserve, renew and maintain in full force and effect its corporate or organizational existence, and (ii)take allreasonable action to maintain allrights, privileges and franchises necessary or desirable in thenormal conduct of itsbusiness, except, in each case, where the failureto do so could not reasonably be expected to have a material adverse effect. B. Compliance. Comply with (i) all of the terms and provisions of its organizational documents; (ii) itsobligations under itsmaterial contracts and agreements; and all (iii) laws and orders applicable to it and its business, except where the failure to do so could not reasonably be expected to have a materialadverse effect. C. Payment Obligations. Pay, discharge or otherwise satisfyat or before maturity or before they become delinquent, as the case may be, allitsmaterial obligations of whatever nature, except where the amount or validity thereof is currently being contened in good faith by appropriate proceedings, and reserves in conformity with GAAP with respect thereto have been provided on its books. D. Notice of Events of Default. As soon as possible and in any event within two (2) business days after itbecomes aware that a Default or an Event of Default has occurred, notify Lender in writing of the nature and extent of such Default or Event of Default and the action, ifany, ithas taken or proposes to take with respect to such Default or Event of Default. E. Further Assurances. Upon the request of Lender, promptly execute and deliver such further instruments and do or cause to be done such further acts as may be necessary or advisable to carry out the intent and purposes ofthis Note and Mortgage 6. BORROWER'S NEGATIVE COVENANTS. Until allamounts outstanding under thisNote have been paid in full,Borrower shallnot: A. Indebtedness. Incur, create or assume any debt, other than as permitted by Lender. B. Lieglgi.Incur, create, assume or suffer to existany Lien on any of itsproperty or assets, whether now owned or hereinafter acquired except for (a) Liens for taxes not yet due or which are being centested in good faith by appropriate proceedings; and (b) non-conscrzue! Liens arising by operation of law, arising inthe ordinary course of business, and foramounts 3 13 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 which are not overdue for a period of more than 30 days or thatare being contested in good faithby appropriate proceedings; and (c)Liens created pursuant to the Mortgage. C. Distributicas. Without prior written consent of Lender, make any distributica to any of Borrower's Members, in interests, cash or in property, or redeem, pushese or otherwise acquire, directly or indirectly,any of such interests.Except, so long as Borrower isnot in default hereunder, if Borrower is a limited liabilitycompany, under the regulations of the Internal Revenue Service of the United States, distributions to the Members of Borrower in such amounts as are necessary to pay the tax liabilityof such Members due as a resultof such Members' interestin the Borrower. D. Sale of Interest. Sell, transfer, convey, or assign any interest in the Borrower without Lender's priorwritten consent E. Sale of Real Estate. Directly or indirectly, without the prior written consent of Lender, which may be withheld by Lender in its sold discretion, sell, convey, assign, transfer, mortgage, pledge, hypetheeste, lease or dispose of allor any part of any legal or beneficial interest inthe property which is thesubject ofthe Mortgage, or permit any of the forgoing; or permit the use, generation, treatment, storage, release or disposition of any oil or other material or substance hazardous waste or hazardous materials or = ces constituting under any applicable federal or statelaw, regulation orrule. 7. EVENTS OF DEFAULT. The occurrence and continuance of any of the following shall constitute an Event of Default hereunder: A. Failure to Pay. Borrower failsto pay (i)any principal amount of the Loan when due; (ii) interest or any other amount when due; and (iii) any Monthly Payment, or portion thereof,when due, including any Additional Monthly Payments. B. Breach of Representations and Warranties. Any represeñ½tica or warranty made or deemed made by Borrower or any Guarantor to Lender herein or in the Mortgage isincorrect in any material respect on the dateas of which such representation or warranty was made or deemed made. C. Breach of Covenants. Borrower fails to observe or perform (i) any covenant, condition or agreement contained in Sections 6 or 7 herein or (ii) any other covenant, obligation, condition or agreement contained in this Note or Mortgage other than those specified in clause (i). D. Mortgage Obligations. Borrower failsto pay when due any of itsobligations under the Mortgage, or causes any waste to the Secured Property. E. Bankruptcy. Borrower commences any case, proceeding or other action (i) under any existing or future Law relating to bankruptcy, iñsolveñcy, reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to 4 14 of 70 FILED: OSWEGO COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFC-2021-1667 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2021 adjudicate itas bankrupt or insolvent, or seeking reorganization, arrangement, adjustment winding-up, li;:!f±!on, dissolution, composition or other reliefwith respect to itor itsdebts or appointment of a receiver, trustee, custodian, conservator or other similar (ii)seeking officialfor itor for allor any substantial part of itsassets, or (iii)Borrower makes a general assignment for the benefit of itscreditors or there iscommenced against Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution or similar process against allor any substantial part of itsassets which results in the entry of an order for any such reliefwhich has not been vacated, discharged, or stayed or bonded pending appeal within ten (10) days from the entry thereof·, F. Transfer of Secured Property. Borrower sells,transfers, alienates or conveys the Secured Property or any part thereof, or the Secured Property is transferred by operation of law or otherwise to a thirdparty without the consent of Lender. G. Judgments. One or more judgments or decrees shall be entered against Borrower and all of such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within ten (10) days from the entry thereof. H. Senior Lien. If the Loan Documents securing this Note are subject to a senior lien, default in any of the terms and conditions of the senior lien. I. Municipal Charge. Failure to pay any mimicipe! charge of assessment leviedagainst the real property secured by the Loan Documents.
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Case Info
Judge
Scott Del ConteTrack Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
December 01, 2021
Case Filing Date
December 01, 2021
County
Category
Real Property - Mortgage Foreclosure - Commercial
Status
Disposed
Parties
AMZ GROUP LLCDefendant
Bivens & Associates Architects PLLCDefendant
BROADWAY ADVANCE LLCDefendant
Capital Llc CdPlaintiff
CHANGE CAPITAL HOLDINGS I LLCDefendant
CROWD LENDING FUND ONE LLCPlaintiff
Customers Bank as assignee of CD Capital, LLC, assignee of Crowd Lending Fund One, LLCPlaintiff
DEERE CREDIT INCDefendant
Jeffrey HolbrookDefendant
JOHN DEERE CONSTRUCTION & FORESTRY CODefendant
KAPLAN, MITCHELL LAttorney for the Defendant
OUDEMOOL, DIRK JONAttorney for the Defendant
Page Trucking IncDefendant
PCL Properties LLCDefendant
Reading Athracite CompanyDefendant
SHAW, AMANDA CAttorney for the Plaintiff
SPG ADVANCE LLCDefendant
WEISMAN, STEWART LAWRENCEAttorney for the Defendant
KATHLEEN CENTOLELLAAttorney
ANTHONY HANLEYAttorney
RICHARD CARDINALEAttorney
SCOTT DELCONTEAttorney
CURTIS SHAWAttorney
CRAWFORD SHAWAttorneys for Plaintiffs
MICHAEL CARDINALEAttorney
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NATIONSTAR MORTGAGE LLC v. GOFFREDO, ET AL
Oct 20, 2016 |Seiter Jr., Hon. Norman W. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |16-1028
Ruling
Nicole Martinez vs Guy Maxwell
Aug 20, 2024 |24CV-01096
24CV-01096 Nicole Martinez, et al. v. Guy Maxwell, et al.Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive DamagesThe Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive Damages isGRANTED WITH LEAVE TO AMEND to allege facts establishing malice, oppression orfraud.
Ruling
- COUNTY OF STANISLAUS vs SHAIBI, YEHIA AHMED QASSEM -
Aug 21, 2024 |CV-22-005038
CV-22-005038 - COUNTY OF STANISLAUS vs SHAIBI, YEHIA AHMED QASSEM - Plaintiff's Motion for Terminating and Monetary Sanctions Against Defendant Lion's Market and/or Its Counsel - GRANTED.The Court finds, in relation to Defendant’s protracted delay in submitting responses, and incomplete ones at that, to Plaintiff’s discovery propounded on Defendant as far back as in June 2023, and in failing to comply with the Court’s order of February 15, 2024, that Defendant’s said conduct amounts to abuse of the discovery process that warrants the imposition of terminating sanctions. (Code Civ. Proc. §§2023.030 (d) and (g), and 2023.010 (d)(1) and (d)(4).Defendant is aware of the Court’s order and yet has failed to comply with same. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377; Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093); Creed-21 v. City of Wildomar (2017) 18 Cal. App. 5th 690, review denied).Furthermore, the Court has, on at least two occasions, granted Defendant’s requests for additional time to respond to said discovery. “The court is not required to have infinite patience in these situations”. (Jerry's Shell v. Equilon Enterprises, LLC, (2005) 134 Cal. App. 4th 1058).Accordingly, Plaintiff’s motion is hereby granted.All of Defendant’s allegations in its First Amended Answer to Plaintiff’s Complaint, notably paragraphs 3-6 (p. 2, lines. 17-25) of Defendant’s First Amended Answer and its prayer for relief are hereby stricken. (Code Civ. Proc. §2023.030 (d)(1)). Default judgement is hereby rendered in Plaintiff’s favor.Monetary sanctions are issued in Plaintiff’s favor against Defendant and their Counsel Tyler Kelly Esq. for Plaintiff’s reasonable fees and costs in having to file this motion in the sum of $2,700 including prior sanctions of $900 if same remains unpaid. Said sanctions shall be paid to Plaintiff’s Counsel within fourteen (14) days of the date of this order.
Ruling
CARDENAS vs CARDENAS
Aug 20, 2024 |CVSW2308997
DEMURRER TO COMPLAINT BYCVSW2308997 CARDENAS VS CARDENASMICHAEL R CARDENASTentative Ruling: SUSTAIN without leave to amend. This matter needs to be pursued in theFamily Court. The matter will be dismissed without prejudice.
Ruling
THE VILLAGES OF AVALON COMMUNITY ASSOCIATION vs MENDOZA
Aug 25, 2024 |Frank Anthony Moschetti |CVMV2104527
MOTION TO SET ASIDE ENTRY OFTHE VILLAGES OF AVALONDEFAULT, VACATE THE JUDGMENT,CVMV2104527 COMMUNITY ASSOCIATION VSRECALL AND QUASH THE WRIT OFMENDOZAEXECUTIONTentative Ruling: No tentative at this time, due to lack of notice as required pursuant toLocal Rule 3316.
Ruling
R Scott Turicchi et al vs Randy Quaid et al
Aug 26, 2024 |Judge Colleen K. Sterne |19CV06268
R. Scott Turicchi, et al., v. Randy Quaid, et al.Case No. 19CV06268 Hearing Date: 8/26/2024 HEARINGS: (1) Quaid motion to compel Turicchi compliance with subpoena (2) Quaid motion to strike references to July 28, 2024 ruling ATTORNEYS: Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs Randy Quaid and Evgenia Quaid are in pro per. TENTATIVE RULINGS: Both motions are denied. Motion to compel Turicchi compliance with subpoena: The Quaids filed their motion on June 28, 2024, seeking to compel the Turicchis to comply with a subpoena which the Quaids contend was served upon them May 14, 2024. The subpoena sought a “non-fabricated photograph” of a sign posted on the front gate of the property, and for the identity of the “friend” who allegedly created the sign. The motion contends that the information is critical to the fair resolution of the ongoing civil dispute concerning the property at 1335/1357 East Mountain Drive, in Montecito. The motion contends that the Turicchis had the Quaids “falsely citizen’s arrested” on the property in September 2010, at a time when the Turicchis’ claim of ownership was under a void title from the Bermans in 2007, and they had not yet perfected a 5-year adverse possession claim to the property. In October 2010, the Turicchis posted a sign on the front gate to the property “threatening harm” to the Quaids if they returned. Plaintiffs produced emails in November 2023 which reveal that multiple witnesses observed and photographed the sign. Since that time, the Quaids have made exhaustive requests for production of a photograph of the sign which had been posted on the gate, and have also requested the Turicchis to provide the name of the person who Mrs. Turicchi says made the sign. The subpoenaed a copy of the photograph and the name of the friend on May 14, 2024, but plaintiffs failed to respond by the June 14, 2024 deadline, and on June 20 responded providing “a suspiciously altered PDF image” of a sign on the front gate of the property, and did not identify the friend who created it. They contend that a preliminary analysis of the PDF image of the sign suggests that the image of the sign has been digitally altered and inserted into a photograph of the front gate. They assert further that the content of the sign “does not align with the reactions of witnesses.” Given that the preliminary analysis suggested possible manipulation, they contend that the actual photograph must be analyzed by a forensic expert using more advanced forensic tools, in order to determine the photograph’s authenticity. They therefore seek an order compelling plaintiffs to fully comply with the subpoena, and permitting the Quaids to engage a forensic expert to analyze the photograph. The PDF image of the photograph in question, produced by the Turicchis on June 20, 2024, is attached to the motion as Exhibit A, and depicts what appears to be a wooden gate, arched at the top, and attached to a stone wall. On the gate is affixed what appears to be a white, rectangular sign with red lettering, which states: To the couple arrested.This is not your property.Shy of purchasing it from me—KEEP YOUR ASS OFF MY PROPERTY.Opposition The Turicchis have opposed the motion, on multiple bases. First, they note that the discovery cut-off was 30 days prior to the then-June 24, 2024 trial date, and the Quaids’ subpoena called for documents to be produced on June 14, 2024, past the cut-off date. The Turicchis served written opposition noting the discovery cut-off date, and objecting that the Deposition Subpoena which had been served on counsel was not a valid subpoena, in that it was unsigned. It could not permissibly have been signed by the Quaids in any event, as the only persons authorized by law to issue a subpoena are a judge, court clerk, or an attorney at law who is an attorney of record. (Code Civ. Proc., § 1985, subd. (c).) Parties representing themselves are not authorized to issues subpoenas, and any subpoenas they attempt to issue are invalid. Additionally, while a Notice to Consumer was attached, it was not signed, and was not directed to any consumer.The Turicchis object that any motion to compel production of documents pursuant to a subpoena must contain specific facts showing good cause for the discovery being sought. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) The motion to compel does not contain any such facts. The Turicchis explain that in connection with documents previously produced, an email was produced that referenced a sign the Turicchis had posted on their gate. One of the Quaids’ former attorneys requested a copy of the photo of the sign, but the Turicchis had not been able to locate a copy of the photo. They later located one, and that photo was produced to the Quaids on June 19. The current motion appears to contend that the photo which was produced was not genuine. However, since the photo requested was produced, there is no basis for any additional production. Further, the photo has no relevance to the slander of title cause of action against the Quaids, which is the only remaining cause of action. Quaid motion to strike references to July 28, 2014 ruling: The motion seeks to “strike” in this case all references to and citations of this Court’s July 28, 2014 ruling, citing as authority Code of Civil Procedure section 43, and the doctrine of stare decisis. The motion contends that the ruling violated established precedent set forth by the Court of Appeal in County of Santa Barbara v. American Surety Company (Case No. B238601), which found that Randy Quaid was not lawfully required to attend the hearing in question, and vacated his bail bond forfeiture. The Quaids contend that reliance on the Court’s 2014 ruling has allowed plaintiffs to unjustly harass and defame Randy Quaid. The Court of Appeal on November 14, 2013, ruled in favor of Randy Quaid, vacating his bail bond forfeiture and finding he was not lawfully required to attend the hearing. In spite of the ruling, Judge Sterne on July 28, 2014 issued a ruling declaring that Mr. Quaid was required to appear, and cited the Doctrine of Fugitive Disentitlement to bar him from seeking civil redress. His Code of Civil Procedure section 170.6, filed on December 29, 2020, was ignored by the court, as was a January 8, 2021 request for judicial notice and declaration of prejudice. The motion argues that use of the ruling to paint Mr. Quaid as a felony fugitive has caused significant harm, and has unjustly maligned his character. Since the Court of Appeal determined he was not lawfully required to attend the hearing, this court must adhere to that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; Code Civ. Proc., § 43.) Randy Quaid therefore requests that the court strike all references to and citations of the July 28, 2014 ruling, and bar any future use of it by plaintiffs and their counsel. Opposition The Turicchis have opposed the motion, contending that the November 14, 2013 decision by the Court of Appeal was on a technical bail bond requirement, and had nothing to do with the Court’s July 28, 2014 order quashing the Quaids’ subpoena based upon the Doctrine of Fugitive Disentitlement. Only the bail bond forfeiture was vacated by the Court of Appeal decision, and that was on the basis that the court (the Honorable Frank Ochoa) should have forfeited the bond for Randy Quaid in court on November 2, 2010, as he had done for Evi Quaid, but instead continued the forfeiture issue to November 16, 2010, but then reconsidered his November 2 hearing on November 5, and ordered that the bond be forfeited nunc pro tunc to November 2, 2010. The Court of Appeal also found that, had Judge Ochoa waited until the next scheduled hearing on November 16 and, if Randy Quaid failed to appear, order forfeiture of the bond at that time, his actions would have been proper. He simply could not order forfeiture of the bond at a time when there was no scheduled hearing, since a bond can only be forfeited when a person subject to the bond does not appear at a hearing. It was only for that reason that the forfeiture was ordered reversed.None of the issues which formed the basis for the Court of Appeal’s decision had anything to do with the fact that the Quaids were fugitives for justice, which is the issue this Court decided on July 28, 2014. Consequently, there is no basis to strike the 2014 order or any reference to it in this case. Further, the Quaids remain fugitives from justice, and the Doctrine of Fugitive Disentitlement still applies to them. The Turicchis request judicial notice of the Criminal Complaint against the Quaids, which is still pending, arguing that their failure to return to California to face those charges makes them continue to be fugitives from justice. Reply The Quaids filed extensive reply papers. They first focus upon the language of the Court of Appeal that Randy Quaid “. . . was not obligated to appear,” and argue that tit doesn’t matter that the appellate ruling was based on a technicality due to a lower court’s error, and its language is binding on this court. They contend that even if the ruling was based on a technicality, it still provides a strong legal foundation for arguing that Randy Quaid was subject to unlawful procedures, reinforcing his case for relief under Code of Civil Procedure section 473(b). The Quaids argue that plaintiffs failed to distinguish facts leading to the 2013 appellate decision, including misidentifying the judge whose decision to forfeit an alleged bail bond nunc pro tunc was overturned. They assert that the 2013 decision is not irrelevant to the 2014 order, contending that the ruling quashing the Quaids’ subpoena was based upon a Quaid attorney disqualification issue, and the court tacked on as an alternative reason the Doctrine of Fugitive Disentitlement, effectively branding the Quaids as felony fugitives who failed to appear. Plaintiffs defend the ruling’s flawed reasoning, but the appellate ruling is what it is, and must be honored. The Quaids then raise an issue regarding findings of the California Department of Insurance regarding the validity of the forfeiture of Evi Quaids’ bail bond in 2010. They note that they sued the American Surety Company (ASC) in Indiana in 2014, and that ASC turned over the results of the California Department of Insurance investigation that agreed with the Quaids’ 2013 complaint that the Quaids took no cash bail in exchange for their September 2010 release, as the Santa Barbara District Attorney and Santa Barbara Sheriff’s Department falsely contained in their motions and statements in court. An August 12, 2013 Department of Insurance letter to ASC declared the Quaids’ complaint regarding the bail bonds to be justified under Section 2694 of the California Code of Regulations, agreeing with the Quaids that they took no bail bonds in exchange for their September 2010 release, and that the alleged bail bonds were extortionate. ASC concealed those findings from the Court of Appeal at the time it was considering the bail forfeiture issue. With no proper notice from the bond company as to their next appearance, the Quaids were not required to appear and the warrants for non-appearance are not valid. There was also never a bail hearing after the Quaids’ September 2010 false arrest. As a result, neither plaintiffs nor the Court can label the Quaids as “felony fugitives”, and all references to them as such must be stricken in the interests of fairness. The Quaids then include a section entitled “The Turicchis’ nefarious motives and misleading statements,” in which they argue that the Turicchis had no interest in the property and did not own it in 2010, since they had not yet owned it for five years, contending that the court’s summary adjudication ruling gave the Turicchis’ ownership as of 2012. They may claim they believed they owned the property based upon the forged, void deed form Berman, and that the Quaids are felony fugitives, but the Cobb forensic evidence, the Berman dissolution agreement, the Department of Insurance findings, the Vermont Superior Court denial of extradition based upon the District Attorney’s failure to show probable cause, the District Attorney’s numerous procedural errors, all supported by well-settled law, “dispel that illusion.” The Quaids argue that the Turicchis are relying on their own “false” citizen’s arrest of the Quaids for trespassing a property in which the Turicchis had no legal interest in 2010, so as to smear the Quaids as felons in 2023 and 2024. The charges were brought against the Quaids based solely on the Turicchis’ misleading and perjured statements and fabricated evidence of a broken mirror that they have admitted in writing was not broken. The Quaids’ argue that their Fifth Amendment rights were violated when they were not properly noticed for an appearance, and the invalid bail bonds and misimpressions by the District Attorney’s office continue to unfairly deprive them of their liberty. The District Attorney’s and Sheriff’s errors have compromised their right to a fair trial and violated their Sixth Amendment rights. They are being treated from other similarly situated, in violation of their Fourteenth Amendment right to equal protection under the law. The issuance of warrants based on insufficient evidence and procedural errors is an unreasonable seizure without due process, in violation of the Quaids’ Fourth Amendment rights. ANALYSIS: For the reasons more fully articulated below, both motions will be denied. Motion to compel compliance with subpoena The motion is denied. Apart from the significant technical insufficiencies with the subpoena, and the fact that the discovery cut-off took place in this case prior to the date for production set forth in the subpoena, the motion simply makes no attempt to explain how or why any such photo has any possible relevance to the remaining claim in this action, i.e., the Turicchis’ claim against the Quaids for slander of title. Indeed, even if the other claims alleged by the Turicchis against the Quaids had not already been adjudicated in this action, the photo at issue in the subpoena does not appear to have any relevance to those claims either. Further, the Quaids apparently seek the actual photograph so that they can conduct tests on the photograph to determine whether it was altered or manipulated in some manner, but they have never explained how that fact has any relevance to any issue in this action. It doesn’t even appear to have relevance to the claims which the Quaids attempted to insert into this action, with respect to their previously-heard motion for leave to file a cross-complaint for identity theft, mail theft, and mail fraud. Certainly, it appears from the motion that the Quaids took considerable offense from the posting of the sign and its contents. However, that does not mean it has any relevance to the action. Finally, the Turicchis have indicated that they have not been able to locate anything other than the PDF copy of the photograph which they provided to the Quaids. The Court simply cannot compel a party to produce something they do not have. For these reasons, the Court has no option but to deny the motion to compel compliance with the subpoena. Motion to strike reference to July 28, 2014 ruling The motion is denied.While the current motion is fashioned as a motion to strike, it appears to the Court to be more of a motion in limine to preclude any reference to the 2014 ruling at the trial of this action, and the Court will evaluate it as such.In order to resolve the current motion, reference to several distinct bodies of law is necessary, including: (1) Availability of a bench warrant for a felony defendant’s failure to appear for arraignment; and (2) Impact (or lack of impact) on the availability of a bench warrant caused by the invalidity of a trial court’s order of forfeiture of bail, and/or the invalidity of a bail bond in general. 1. Arraignments and bench warrants.Pursuant to Penal Code section 977(b)(1), one who is charged with a felony “shall be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at all time of the imposition of sentence. . . .” Pursuant to Penal Code section 978.5(a) permits issuance of a bench warrant of arrest when a defendant fails to appear in court as required by law. Further, Penal Code section 979 provides that if a defendant has been discharged on bail, and does not appear to be arraigned when his personal presence is necessary, the court, in addition to the forfeiture of the undertaking of bail may order the issuance of a bench warrant for his arrest. The fact that felony defendant does not have actual notice of the hearing date at which their presence in court was required by law has no impact on the validity of the bench warrant issued based upon their failure to appear. (Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)“One who, with knowledge that he is being sought pursuant to court process in a criminal action, absents himself or flees is a fugitive from justice.” (People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) 2. Bail Forfeiture. Penal Code section 1305(a)(1) provides that “a court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient cause, a defendant fails to appear for any one of the following: (A) Arraignment. (B) Trial. (C) Judgment. (D) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. (E) To surrender himself or herself in execution of the judgment after appeal. Pursuant to Penal Code section 1305.1, if a defendant fails to appear for arraignment (or other specified events at which personal appearance is required), but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it demes reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. If, after making the order, the defendant, without sufficient cause, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be issued.3. Application to the Quaids.The essence of the Quaids motion, as best as this Court has been able to discern, is that any mention of the fugitive disentitlement doctrine, or the Court’s 2014 ruling regarding application of that doctrine to them in another case, is improper because they are not actually “fugitives from justice.” In making that argument, they rely upon language set forth in County of Santa Barbara v. American Surety Company (2013) 2013 WL 6018066, to the effect that Randy was not required to be in court on November 5, 2010, the date on which his bail was ordered forfeited. The argument misunderstands both what occurred, and what was determined by the Court of Appeal in that case. According to the recitation of facts set forth in the appellate decision, the Quaids were arrested for felony vandalism on September 18, 2010, and bail was posted for their release on September 19, 2010. When they failed to appear at the October 18, 2010 arraignment (a hearing at which, as felony defendants, their presence was mandated by the provisions of Penal Code section 977(b)(1)), the Quaids attorney requested a continuance, and the trial court continued the arraignment to October 26, 2010. Several days later it was discovered that the Quaids were in Canada. On October 22, 2010, based upon their non-appearance and flight risk, the court granted the prosecution’s motion to increase their bail to $500,000 each. On October 26, 2010, the attorney again appeared and requested that the arraignment again be continued, and the trial court continued the arraignment to November 2, 2010, and ordered the $50,000 bench warrants to remain outstanding. After the hearing, the bail agent posted a $500,000 bail bond on each bench warrant. On November 2, 2010, the Quaids failed to appear. The trial court ordered Evi Quaid’s $500,000 bail forfeited. It recalled Randy’s bench warrant and ordered it held to November 16, 2010, pursuant to Section 1305.1. On November 5, 2010 (a date on which no hearing was scheduled at which the Quaids’ presence was required by law under Section 977(b)(1)), the trial court reconsidered its ruling, found there was no good cause for Randy’s non-appearance, and ordered Randy’s bail forfeited nunc pro tunc as of November 2, 2010. While the law regarding the issuance of bench warrants and the law regarding the forfeiture of bail frequently operate in tandem, give that both are triggered by the failure to appear for a hearing at which the felony defendant is required by law to personally appear, they are separate and distinct. The forfeiture of a bail bond for a defendant who has failed to appear in court when required by law, has no impact on the validity of a bench warrant for an individual’s arrest, based upon the same failure to appear in court when required by law. The Quaids were required by law to personally appear in court for their arraignment, and for each successive, continued hearing date for such arraignment, including October 18, 2010, October 26, 2010, November 2, 2010, and November 16, 2010. They did not do so. As a result, the bench warrant that had been issued based upon their failure to appear for their arraignment was valid and enforceable, regardless of whether their bail was either properly or improperly imposed or ordered forfeited. For as long as the bench warrant remains in effect, the Quaids are considered “fugitives from justice,” because they are fully aware that they are being sought pursuant to court process in a criminal action. (See People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) This is true regardless of whether they had advance notification of the precise date for the arraignment. (See Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)The reason the Court of Appeal found that it was impermissible for the trial court to declare a forfeiture of Randy’s bail on November 5, 2010, was that there was no hearing set on that date at which Randy was required by law to personally appear. This is also why the Court of Appeal noted that it would have been proper for the trial court to declare the forfeiture in open court on November 2, 2010 (a scheduled date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305), or November 16, 2010 (a continued hearing date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305.1). Nothing in the Court of Appeal opinion ever said that either Randy Quaid or Evi Quaid were not required to personally appear in court for their arraignment, no matter what date it was scheduled for.While the Quaids also, in their reply papers, make arguments with respect to the validity of the criminal charges against them, that issue, too, is irrelevant to the question of whether they are truly fugitives from justice. Legally, their remedy is to submit to the jurisdiction of the criminal court and establish their claims before that court at trial. Because the validity of the criminal charges against them, the validity of the bail bonds which were issued, and the validity of a trial court’s order of forfeiture of the bail bond, all have absolutely no impact on the validity of the bench warrant issued by the trial court based upon their failure to appear at a hearing at which their appearance was required by law (i.e., arraignment), the basis for their motion—that they are not in fact fugitives from justice because they were not required to be present in court—is legally erroneous, requiring that the motion be denied. 4. Future proceedingsHaving ruled on the motion that was filed, the Court notes that there could be other bases for an order precluding the mention of the Quaids’ fugitive status at trial, which were not raised in the motion. Due process would preclude the Court from entertaining at this time any grounds for exclusion that were not raised by the moving papers, and for which the parties have not notice or an opportunity to respond. The Trial Confirmation Conference for this action is currently scheduled for January 27, 2025. Prior to the commencement of trial, the parties will have an opportunity to present motions in limine to address evidence which the party contends should not be admitted or mentioned in front of the jury. This would include motions based upon Evidence Code section 352, which provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.Certainly, the fact does not readily appear to have any significant relevance to the remaining slander of title cause of action against them, which will be the subject of the upcoming trial. However, the Court has not evaluated the issue, nor has it reached any conclusion regarding whether evidence of the Quaids’ alleged fugitive status would meet the standards for exclusion under Section 352, and is merely positing that it would be amenable to considering a properly supported motion in limine made on this basis, when the time for trial nears.
Ruling
WVISTANO DANIEL PEREZ VS FCI LENDER SERVICES, INC., A CALIFORNIA CORPORATION, ET AL.
Aug 20, 2024 |23CHCV01341
Case Number: 23CHCV01341 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case # 23CHCV01341, Wvistano Daniel Perez vs. FCI Lender Services, et al. Trial Date: N/A DEMURRER TO SECOND AMENDED COMPLAINT MOVING PARTY: Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC RESPONDING PARTIES: No response has been filed. RELIEF REQUESTED Demurrer to Second Amended Complaint · Entire Cross-Complaint · First Cause of Action for Violation of Business and Professions Code § 17200 RULING: Demurrer is sustained without leave to amend. SUMMARY OF ACTION In February 2022, Plaintiff Wvistano Daniel Perez (Plaintiff) took out a mortgage for the subject property in the amount of $2,000,000.00. In late 2022, Plaintiff defaulted on the loan and contacted Defendant FCI to explore his loss mitigation options. Plaintiff alleges that FCI informed him that the loan was due, and he could either pay the defaulted amount or sell the property. On January 20, 2023, Defendants recorded a notice of Default against the property. Plaintiff alleges that Defendants failed to assess Plaintiffs finances prior to recording the Notice of Default on the property. Plaintiff also alleges that Defendants did not call him or otherwise attempt to contact him regarding non-foreclosure options. Plaintiff sold the property on June 22, 2023. The Court previously sustained Defendants demurrer to Plaintiffs cause of action for violation of Business and Professions Code § 17200 with leave to amend. Defendants have once again demurred to that cause of action. No opposition has been filed by Plaintiff. Defendants Request for Judicial Notice: Defendants have requested that the Court take judicial notice of several recorded deeds showing the chain of title of the subject property. The Court grants this request. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Entire Complaint Defendants demur to the entire complaint, but there is only one cause of action. Plaintiff has also requested a preliminary and permanent injunction, but because Plaintiff requested this as partis of his prayer for relief, the Court will only address the one cause of action. First Cause of Action For the First Cause of Action, Business and Professions Code § 17200 prohibits any unlawful, unfair, or fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising. (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.App.4th 638, 643-644.) Unlawful practices are forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. (Saunders v. Sup.Ct. (1999) 27 Cal.App.4th 832, 838.) Unfair practices constitute conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition. (Cal Tech Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 187.) When determining whether the challenged conduct is unfair within the meaning of the unfair competition law&, courts may not apply purely subjective notions of fairness. (Id. at 184.) The fraudulent prong under the UCL requires a showing of actual or potential deception to some members of the public, or harm to the public interest. (Id. at 180; see also McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Plaintiff has not alleged facts demonstrating that Defendants violated Section 17200. The only allegations of unfairness in Plaintiffs SAC are that Defendant acted unfairly by informing Plaintiff that the loan was due (after Plaintiff failed to pay on the loan) (SAC, ¶¶ 16, 17, 28) and that Defendant acted unfairly by refusing to review the loan for loss mitigation options (SAC, ¶ 28). Plaintiff also alleges that Defendants acted unfairly by signing off on what Plaintiff alleges was a patently false declaration of compliance. (SAC, ¶ 30.) None of the alleged unfair conduct rises to the level of conduct that threatens an incipient violation of an antitrust law. (Cal-Tech, 20 Cal.4th at 187.) Plaintiff has failed to allege conduct that would be a violation of Business and Professions Code § 17200. Plaintiff has also failed to oppose this demurrer or otherwise demonstrate how he could amend his complaint to allege this cause of action. Accordingly, Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Conclusion Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC, are dismissed from this action. Only Defendant California TD Specialists remains as a defendant to this action, though this Court previously signed an order on June 11, 2024, that California TD shall have no further obligation to file any further responsive pleadings or otherwise respond in this matter and shall not be subject to any monetary awards, damages, or attorneys fees and costs. Moving party to give notice.
Ruling
CHRISTOPHER PORTER ET AL VS. COOK GENERAL CONTRACTOR INC. ET AL
Aug 21, 2024 |CGC21589807
Real Property/Housing Court Law and Motion Calendar for August 21, 2024 line 1. DEFENDANT COOK GENERAL CONTRACTOR INC. DBA COOK CONSTRUCTION MOTION FOR SUMMARY ADJUDICATION is DENIED. Moving party failed to comply with CRC 3.1350(b). Compare Notice of Motion and Separate Statement. While the Notice of motion addresses the causes of action based on both duty to indemnify and duty to defend, the issues listed in separate statement appear to solely address duty to defend. To the extent Motions for Summary Adjudication purports to address the entirety of the 5th (express contractual indemnity) and 8th (declaratory relief) causes of action, moving party failed to shift its burden and show that there are no triable issues of fact regarding the duty to indemnify. To the extent moving party is solely seeking adjudication of the duty to defend as it appears from the Separate Statement, moving party failed to show that such duty under the contract has been triggered ("If the allegations raised in any claim, lawsuit, demand for arbitration, or otherwise, by any party against Contractor or Owner, determines [sic] that such claims arose in whole or in part by actions of the Subcontractor, Subcontractor agrees to immediately defend the Contractor or Owner, or other indemnified party hereunder."). Moving party failed to point to any allegations in the complaint that would "determine" that claims in the complaint "arose in whole or in part by actions of the subtractor." Unlike in Crawford, there are no allegations in the complaint implicating the subcontractor. Crawford v. Weather Shield Mfg., Inc., (2008) 44 Cal.4th 541. The Court in Crawford emphasized several times that its decision turned on the language of the contract and on the allegations in the complaint (e.g. "We consider whether, by their particular terms, the provisions of a pre-2006 residential construction subcontract obliged the subcontractor to defend its indemnitee-the developer-builder of the project-in lawsuits brought against both parties, insofar as the plaintiffs' complaints alleged construction defects arising from the subcontractor's negligence " and "It follows that, claims "embraced by the indemnity," as to which the duty to defend is owed, include those which, at the time of tender, allege facts that would give rise to a duty of indemnity." Additionally, moving party presents no facts and supporting evidence to show that any work upon which Plaintiff's claims are based was actually performed/caused by actions of the subcontractor. See Separate Statement referencing allegations in the complaint and the description of the subcontract terms, not the "actions" of the subcontractor. =(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
CHRISTOPHER PORTER ET AL VS. COOK GENERAL CONTRACTOR INC. ET AL
Aug 22, 2024 |CGC21589807
Real Property/Housing Court Law and Motion Calendar for August 22, 2024 line 1. CROSS COMPLAINANT COOK GENERAL CONTRACTOR INC. NOTICE OF MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT AGAINST CROSS-DEFENDANTS is GRANTED. Moving party may file its amended cross-complaint naming a new third-party cross-defendant and asserting six causes of action against this cross-defendant. To avoid the virtually inevitable delay in trial prejudicing the Plaintiff, the claims against the new cross-defendant shall be bifurcated and those claims will not be set for October 28, 2024 trial and will be set for Case Management track. However, if the bifurcated claims are ready for trial (answer on file and discovery, including expert discovery, is completed by all parties to the bifurcated cross-complaint), parties may make an ex-parte application no later than October 23, 2024 to consolidate the bifurcated claims with the rest of the case (complaint and cross-complaint). =(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.
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Pennymac Loan Services Llc v. Jacob T Johnson, Shelby L Cole
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Jan 24, 2024 |Allison J. Nelson |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |EFC-2024-0131
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Wells Fargo Bank, N.A. v. Any Unknown Heirs, Devisees, Distributees Or Successors In Interest Of The Late Ann B. Wolinski, If Living, And If Any Be Dead, Any And All Persons Who Are Spouses, Widows, Grantees, Mortgagees, Lienors, Heirs, Devisees, Distributees, Executors, ADMINISTRATORS, OR SUCCESSORS IN INTEREST OF SUCH OF THEM AS MAY BE DEAD, AND THEIR SPOUSES, HEIRS, DEVISEES, DISTRIBUTEES AND SUCCESSORS IN INTEREST, ALL OF WHOM AND WHOSE NAMES AND PLACES OF RESIDENCE ARE UNKNOWN TO PLAINTIFF, United States Of America By The Internal Revenue Service, New York State Department Of Taxation And Finance, Avis A. Hager, Power Federal Credit Union #3025, Power Federal Credit Union, John Doe
Sep 16, 2022 |Spencer Ludington |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |EFC-2022-1143
Document
Pennymac Loan Services Llc v. Jacob T Johnson, Shelby L Cole
Oct 29, 2021 |Karen M |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |EFC-2021-1533
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Jan 24, 2024 |Allison J. Nelson |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |EFC-2024-0131
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Lakeview Loan Servicing, Llc v. Brandon Cooper, Oswego County Ambulance Service, John Doe #1 Through John Doe #12, the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the Subject Property described in the Complaint
May 15, 2022 |Gregory R. Gilbert |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |EFC-2022-0678
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Ditech Financial Llc v. George E Aka Rookey, George Aka Rookey
Aug 31, 2017 |James W McCarthy |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |EFC-2017-1236
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S Bank Na U, Asset Securities Corporation Structured, Certificates Series 2006-Eq1 Pass-Through, Pass Through Certificates Series 2006 Eq1 v. Lucy C Grenga, Scot M Grenga, Capital One Bank, Empower Federal Credit Union, Fulton Savings Bank, Midland Funding Llc, Brian Pape, A Sheldon Gould, Joseph A Jr Lupia, Roman Napora, Federal Credit Union Power, Midland Funding Of Delaware Llc, Na Citibank
Oct 20, 2017 |Norman W Seiter |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |EFC-2017-1512
