EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (2024)

EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (1)

EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (2)

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  • EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (9)
  • EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (10)
 

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FILED: SUFFOLK COUNTY CLERK 03/10/2022 10:08 PM INDEX NO. 604061/2021 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/10/2022 EXHIBIT 14 INDEX INDEX NO.NO. 60 4 0 61/2 604061/2021 02 1 FILED: FILED: SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/10/2022 04/13/2021 10:08 11:24 PM AM) NYSCEF DOC. DOC. NO.NO. 42 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/13/2021 03/10/2022 NYSCEF 19 2021000700 SECRETARY OF STATE - AFFIDAVIT OF SERVICE STATE OF: NEW YORK DATE FILED: 3/10/21 COUNTY OF: SUFFOLK SUPREME COURT INDEX NO. 604061/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE OF RESIDENTIAL CREDIT OPPORTUNITIES TRUST H, Plaintiffs, Against FRESH PROPERTIES INC., MANUEL F. DOMINGUEZ, 55 HICKORY LLC, TOWN OF BROOKHAVEN TOWN SUPERVISOR, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and JOHN AND JANE DOE, the names of thelasttwo defendants being the fictitious, true names unknown to the Plamtiffand areintended to be partiesin possession of any partof themortgaged premises, ifany, Defendants, Stateof New York County of Albany SS Angela Roy being duly sworn, deposes and says: thatdeponent is nota partyto this action, is over 18 years ofa*ge and resides inthe stateofNew York. That on 4/12/21 at9:05 AM of 1 Conunerce 6* New At Secretary State, Plaza, Floor,Albany, York 12210 Deponent served the within SUMMONS, AO/131/20 NOTICES, 1303 NOTICE ON COLORED PAPER, NOTICE OF ELECTRONIC FILING, VERIFIED COMPLAINT WITH EXHIBITS, CERTIFICATE OF MERIT, AFFIRMATION OF EXEMPTION FROM COVID-19 EMERGENCY ACT, AND THE NOTICE OF PENDENCY Upon: FRESH PROPERTIES, INC., Defendant inthisaction. By delivering to andleaving with AMY LESCH, authorizedagent inthe officeof theSecretaiy of the State,StateofNew York, personallyat theoffice ofthe Secretaryof State,of theStateof New York, two (2)True copiesthereof and thatat thetime ofmaking such service,deponent paid said Secretaryof Statea fee of $40.00. That saidservice was made pursuant toSection 306 BCL. Bearing Index Number and FilingDate endorsed thereon. DESCRIPTION: Sex Skin Color Hair Color Approx. Age Approx. Ht. Approx. Wt. Oth_er 5'4-"- 5'7" Female White Brown 40-50 160-180 ,me 4/12/21 BRADLEYJ. ROY WMtë7ÿ7ü5ic,Stateof NewYork C QtfallfledIn AlbanyCo., No. 01R06242471 Ange Ro CommintionExplreaMay31, 2023 1 of 1 INDEX INDEX NO. NO. 6040 61/2021 604061/2021 FILED: F ILED : SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/10/2022 04/08/2021 10:08 12: O4 PM Ph$ NYSCEF DOC. NO. NYSCEIST3BREl]E.COURT 42 OF THE STATE OF NEW YORK Attorney / FiPAiPATdififteft¥fafiMailew,W.8 RECEIVED NYSCEF: / 2 0 21 03/10/2022 COUNTY OF SUFFOLK X WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE OF RESIDENTIAL CREDIT OPPORTUNITIES TRUST II, IndexNo. 604061 / 2021 Plaintiff(s), Filing Date: March 10, 2021 -againsf- AFFIDAVIT OF SERVICE FRESH PROPERTIES INC., MANUEL F. DOMINGUEZ, 55 HiCKORY LLC, TOWN OF BROOKHAVEN TOWN SUPERVISOR, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and JOHN AND JANE DOE, the names of the lasttwo defendants being fictitious,thetrue names unknown to the Plaintiffand areintended to be parties in possession of any part of the mortgaged premises, ifany, Defendant(s), STATE OF NEW YORK, COUNTY OF SUFFQLK ss: The undersigned, being duly sworn, deposes and says; Deponent is nota partyto thisaction,isover eighteen (18)years of age and residesat NORTHPORT, NY That on March 22,2021 at12:21 p.m. at 34LONG STREET, LAKE GROVE, NY 11755 deponent served the within SUMMONS which contains the additional notice requirements in accordance with RPAPL §1320, NOTICE TO DEFENDANT (Coronavirus Emergency inEnglish and Spanish), Help For Homeowners In Foreclosure Notice as required by RPAPL §1303, which Notice was printed on.a colored piece of paper, which color differed from that of the color ofthe Summons & Verified Complaint and the Notice was in bold, fourteen-point type, with the tide ofthe Notice in bold, twenty-point type,NOTICE OF ELECTRONIC FILING (Mandatory Case), VERIFIED COMPLAINT with ATTORMEY VERIFICATION, CERTIFICATE OF MERIT, AFFIRMATION OF EXEMPTIO1N FROM THE COVID-19 EMERGENCY ACT, EXHIBITS "1-7", CONFIRMATION NOTICES and NOTICE OF PENDENCY OF ACTION with Schedule A Description, bearing Index No. 604061 / 2021 and filingdate ofMarch 10,2021 on MANUEL F. DOMINGUEZ, the defendantthereinnamed, SUlTABLEAGEPERSON 1 thereat a true to MARIA DOMINGUEZ - His Wife and a person of suitable by delivering copy [ofeach] Co-Resident, age and discretion.Said premise isdefendant's actual place / usualplace of abode - within the State. dwelling DESCRIPTION 5'0" O Male O White Skin OBlack Hair OWhite Hair O14-20 yrs. EUnder OUnder 100 lbs. O5'0"-5'3" E Female OBlack Skin EBrown Hair OBalding E21-35 yrs. O100-130 Ibs. ¡5'4"-548" OYellow Skin OBlonde Hair OMustache O36-50 yrs. 3131-160 lbs. 5'9"-6'0" E Tan Skin OGray Hair O Beard ¡51-65 yrs. D O 161-200 lbs. 6'0" ORed Skin ORed Hair OGlasses OOver 65 yrs. OOver OOver 200 lbs. Other Identifying Features: HISPANIC / DARK BROWN HAIR MAUNG Within 20 days of such delivery,deponent enclosed a truecopy of same in post-paid a First-Class, envelope properly addressed to defendant at defendant's lastknown address at 34 Long Street,Lake Grove, NY 11755 and deposited said envelope in an official depository under the exclusive careand custody ofthe U.S. PostalService within New York State. Confidential" on the The envelope borethe legend "Personal and and did not indicate outsidethereof,by return address or otherwise, thatthecominunication was from an attorneyor concerned a legalactionagainstthe defendant. Mailed on March 23, 2021 at Centerport, NY 11721. Mailing Recorded in USPS Firm Mailing Book. Page 1 of 2 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 1 of 3 IND EX INDEX NO . NO. 04061/ 2021 6604061/2021 FILED: FILED: SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/10/2022 04/08/2021 10:08 12:04 PM PM NYSCEF DOC. NYSCEF DOC. NO.NO. 1542 RECEIVED NYSCEF: 04/08/2021 RECEIVED NYSCEF: 03/10/2022 MILITARYSERVICE I asked the recipient whether the defendant was in theactive militaryservice ora dependent of anyone in theactive militaryservice of theUnited Statesor of the StateofNew York in any capacity and receiYed a negative reply.The source ofniy information and the grounds ofmy beliefisthe conversation above narrated. Upon infonnation and beliefI aver thatthe defendantis not in the militaryservice ora dependent ofanyone in themilitaryserviceof New York State orof theUnited Statesas thatterm is definedin eitherthe Stateor Federal statutes. PRINTN . ENEATHSI NATURE Timothy G. Westhall Process Server DCS-DCA#2094792-DCA DCS-2021000701 CPS-002323 Swom to beforeme; This 3rd day of April 2021 LUZ MARIA ACEVEDO NOTARY PUBUC, Stateof New York No.01AO6046191 QuaHfied in Suffolk County Commission Expires August 7,20 Page2 of 2 DELTA COtlRT 148* 2"' SERVICE, INC., 87-67 STREET, FLOOR, JAMAICA, NY 11435 2 of 3 FILED: SUFFOLK O 8 COUNTY CLERK 03/10/2022 o 10:08. .O PM INDEX NO. 604061/2021 O ° NYSCEF DOC.* NO. 42 RECEIVED NYSCEF: 03/10/2022 PAID R2304Ni17600-01 NY CENTERPORT, POSTAGE $1.32 Reverse 21NT 721 U.S. on MA Statement 9 Act Privacy . E@ill=00 MR23 See i Star of Postmar, edd / of Pen Affix forcopies DateFee Point or Postage Ball Delivery (Intemational) or Merchandise Ink, -..-.. Restricted Typewriter, Gonfirmation for Delivery . employee) Receipt Signature Code" .- Registered ...-.--....- by Recorded Signature ZiPhana_EAmmR_ Adult Return recolvingComplete & State, . O¤ OOO service: City, of -..--......... (Name Required stmet, Confimiation Per or (Name, mail T Signature Mall Mail I of Addessee type Certified Delivery Express --..-.... Insured AdultCOD Check OOOOOO J' M ) Office fof Pieces 1 f st (Page Number Sender 2011 is Total Article of June Address Pieces 3877, ofder and Number Name 2. 6. Total 4. 5. List Ps INDEX INDEX NO.NO. 60 4 0 61/2 604061/2021 021 FILED: FILED: SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/10/2022 04/13/2021 10:08 11:24 PM ANg NYSCEF DOC. DOC. NO.NO. 42 20 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/13/2021 03/10/2022 NYSCEF 2021000702 SECRETARY OF STATE - AFFIDAVIT OF SERVICE STATE OF: NEW YORK DATE FILED: 3/10/21 COU.NTY OF: SUFFOLK SUPREME COURT INDEX NO. 604061/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE OF RESIDENTIAL CREDIT OPPORTUNITIES TRUST II, Plaintiffs, Against FRESH PROPERTIES INC., MANUEL F. DOMINGUEZ, 55 HICKORY LLC, TOWN OF BROOKHAVEN TOWN SUPERVISOR, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and JOHN AND JANE DOE, the names of thelasttwo defendants being the fictitious, true names unknown to the Plaintiff and are intendedto be partiesin possession of any partof the mortgaged premises, ifany, Defendants, Stateof New York County of Albany SS Angela Roy being duly sworn, deposes and says: thatdeponent is nota partyto thisaction,is over 18 years ofa*ge and resides in thestate of New York. That on 4/12/21 at 9:05AM of 1 Conunerce 6d' New York At Secretary State, Plaza, Floor,Albany, 12210 Deponent served thewithin SUMMONS, AO/131/20 NOTICES, 1303 NOTICE ON COLORED PAPER, NOTICE OF ELECTRONIC FILING, VERIFIED COMPLAINT WITH EXHIBITS, CERTIFICATE OF MERIT, AFFIRMATION OF EXEMPTION FROM COVID-19 EMERGENCY ACT, AND THE NOTICE OF PENDENCY Upon: 55 HICKORY LLC., Defendant in this action. By delivering toand leaving with AMY LESCH, authorizedagent in the office of the Secretaryof the State,StateofNew York, personallyat theoffice ofthe Secretaryof State,ofthe Stateof New York, two (2)True copiesthereof and thatat thetime ofmaking such service,deponent paid said Secretaryof Statea fee of $40.00. That said servicewas made pursuant to Section303 LLC. Bearing Index Number and Filing Date endorsed thereon. DESCRIPTION: Sex Skin Color Hair Color Approx. Age Approx. Ht. Approx. Wt. Other 5'4-"- 5'7" Female White Brown 40-50 160-180 be ore m on: 4/12/21 BRADLEYJ. ROY NotaryPutdic,Stateof NewYork - Public Qualifiedin AlbanyCp., No.01RO6242471 R 'o Angela CommissionExpiresMay31, 2023 1 of 1 FILED: SUFFOLK COUNTY CLERK 03/10/2022 10:08 PM INDEX NO. 604061/2021 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/10/2022 WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE OF RESIDENTIAL CREDIT OPPORTUNITIES TRUST H, Index No. 604061 / 2021 Plaintiff(s), Filing Date: March 10, 2021 -against- AFFIDAVIT OF SERVICE FRESH PROPERTIES INC., MANUEL F. DOMINGUEZ, 55 HICKORY LLC, TOWN OF BROOKHAVEN TOWN SUPERVISOR, NEW YORK STATE DEPARTMENT OF .. TAXATION AND FINANCE, and JOHN AND JANE DOE, the names of the last two defendants being fictitious,the true names unknown to the Plaintiff and are intended to be parties in possession of any part of the mortgaged premises, ifany, Defendant(s), _____________.....----------------.....---.----..----..______...............----..x STATE OF NEW YORK, COUNTY OF SUFFOLK ss: The undersigned, being duly sworn, deposes and says: Deponent is nota party tothis action,is over eighteen (18) years ofa*ge and residesat NORTHPORT, NY That on March 18, 2021 at 1:36p.m. at TOWN OF BROOKHAVEN TOWN HALL - 1 INDEPENDENCE HILL, FARMINGVILLE, NY 11738, deponent served the withinSUMMONS which contains the additional notice requirements in accordance with RPAPL §1320, NOTICE TO DEFENDANT (Coronavirus Emergency in English and Spanish), Help For Homeowners In Foreclosure Notice as required by RPAPL §1303, which Notice was printed on a colored piece of paper, which color differed from that of the color of the Summons & Verified Complaint and the Notice was in bold, fourteen-point type, with the title of the Notice in bold, twenty-point type, NOTICE OF ELECTRONIC FILING (Mandatory Case), VERIFIED COMPLAINT with ATTORNEY VERIFICATION, CERTIFICATE OF MERIT, AFFIRMATION OF EXEMPTION FROM THE COVID-19 EMERGENCY ACT, EXHIBITS "1-7", CONFIRMATION NOTICES and NOTICE OF PENDENCY OF ACTION with Schedule A Description, bearing Index No. 604061 / 2021 and filingdate of March 10,2021 on the TOWN OF BROOKHAVEN TOWN SUPERVISOR, the defendant thereinnamed, GORPOPATION/ GOVERNMENTALSUB-DMSION 1 a Governmental Sub-Division, by delivering thereata truecopy [ofeach] to LINDA BERG, personally.Deponent knew said Governmental Sub-Division so served to be theSub-Division described in saidsummons as saiddefendant and knew said individual to be a SENIOR ACCOUNT CLERK for the Town of Brookhaven and a person authorized to acceptservice thereof. DESCRIPTION 2 O Male EWhite Skin ¡Black Hair O White Hair ¡14-20 yrs. ¡Under 5'O" OUnder 100 lbs. ¡5'0"-5'3" E Female OBlack Skin OBrown Hair OBalding O21-35 yrs. ¡100-130 lbs. 25'4"-5'8" ¡Yellow Skin EBlonde Hair ¡Mustache E36-50 yrs. E 131-160 lbs. ¡5'9"-6'0" OTan Skin ¡Gray Hair ¡Beard ¡51-65 yrs. ¡161-200 lbs. 6'O" ¡Red Skin ¡Red Hair EGlasses O Over 65 yrs. ¡Over ¡over 200 lbs. Other Identifying Features: DIRTY BLONDE HAIR Swom to before me; This 3rd day of April 2021 ............. ..........s....... . ... ............ RINTN NEATHSIGNATURE Timothy G. Westhall .. .. . #UeL................. LrZ MARIA ACEVMO ProcessServer N T Y NOTARY PUBLIC, State of New York No. 01AC6046191 DCS-DCA#2094792-DCA Qualified Commission in Suffolk Expires County August 7,20- RA DCS-2021000705 CPS-002323 DELTA COURT SERVICE, INC.,87-67 148"' STREET,2nd FLOOR, JAMAICA, NY 11435 1 of 1 INDEX INDEX NO NO.. 6 0 4 0 61/ 2021 604061/2021 FILED:: FILED SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/10/2022 03/22/2021 10:08 06:23 PM PM| NYSCEF NY SCEF DOC.. DOC NO. NO. 42 12 R V RECEIVED C Y CEF NYSCEF: : 03/22/2021 03/10/2022 AFFIDAVIT OF SERVICE STATE OF NEW YORK SUPREME COURT SUFFOLK COUNTY WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNE R TRUSTEE OF RESIDENTIAL CREDIT OPPORTUNITIES TRUST II, Plaintiff, DATE FILED:3/10/21 Against Index# 604061/2021 FRESH PROPERTIES INC., MANUEL F. DOMINGUEZ, 55 HICKORY LLC, TOWN OF BROOKHAVEN TOWN SUPERVISOR, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and JOHN AND JANE DOE, the true the names of the last two defendants being fictitious, names unknown to the Plaintiff and are intended to be parties in possession of any part of the mortgaged premises, if any, Defendants State of New York County ofAlbany ss.: Angela Roy being duly sworn, deposesand says: that deponent is not a party to this action, is over 18 years of age and resides in the state of New York. That on 3/16/21 at 9:55 AMat W.A. Harriman Campus, Building 9, Albany, New York 12227 deponent personally served a true copy of the Summons, AO/131/20 Paper, Notice of Notices, 1303 Notice on colored Electronic Verified Filing, Complaintwith Certificate Exhibits of Merit, Affirmation of Exemption from Covid-19Emergency Act and the Notice of Pendency on New York State Department of Taxation and Finance defendant therein named INDIVIDUAL 1._ a true copy of each to said defendant personally; deponent knew the person so served by delivering to be the person described as said defendant therein. CORPORATION a New YorkState Department of Taxation and Finance corporation, by delivering 2. X thereat a true copy of each to Heidi Kelly personally, deponent knew said corporation so served to be the corporation described in said summons as said defendant and knew individual to be Agent Clerk/Authorized thereof. CORPORATION BY SECRETARY OF STATE a_ __ to and leaving with corporation, by delivering a person 2a. __ authorized by the Secretary of State to receive such service, at the office of the Department of State at 41 State Street, in the City of Albany, duplicate copies of such service with the statutory fee of $40.00.Such service was made pursuant to Section 306BCL. SUITABLE AGE PERSON thereat a true copy of each to by delivering a person of suitable age and 3._ Said premises is defendant's - actual place of business - dwelling discretion. place - usual place of abode - within the state. AFFIXING TO DOOR, ETC. a true copy of each to the door of said premises, which is defendant's - actual place of by affixing 4. __ place - usual place of abode - business - dwelling within the state. Deponent was unable, with due diligence to find defendant or person of suitable age and discretion, thereat, having called there: MAILING USE WITH Within20 days of such delivery or affixing, deponent mailed a copy of the Summons and Complaint 3. or 4. to defendant at defendant last known residence, at by Confidential" on first class mail in an envelope bearing the legend "Personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is fmm an attorney or concerned an action against the defendant. DESCRIPTION: ___X__ 5'4" Sex Female Color White Hair Blonde Approx. ht. Approx.Weight Approx. 120 lbs. Age 45 other MILITARY SERVICE I asked the person spoken to whether recipient was in active military service of the United States or the State of New York in any capacity whatever and received a negative reply. Recipient wore clothes and no military ordinary civilian The source of my infonnation uniform. an

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Ruling

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B&B CARRIER, INC. VSCVRI2403157 PRELIMINARY INJUNCTIONEAST WEST BANKTentative Ruling: Deny motion.A motion for preliminary injunction must show (1) a probability of prevailing on the merits,and (2) that the balance of hardships favors issuance of the injunction. (O’Connell v. SuperiorCourt (2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a realthreat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California(1989) 213 Cal.App.3d 131, 138.)Here, Plaintiffs will suffer harm because they will lose real property. With regard toPlaintiff’s three causes of action for fraud, a preliminary injunction is neither requested noravailable as a remedy, even if Plaintiff is likely to or in fact, succeeds on the merits of said claims.(Cal. Civil Code § 3343.) The complaint makes no request for injunctive relief in any of the threefraud causes of action. (Complaint, ¶¶ 31, 38, and 44.) “In general, if the plaintiff may be fullycompensated by the payment of damages in the event he prevails, then preliminary injunctiverelief should be denied.” (Tahoe Keys Property Owners' Assn. v. State Water Resources ControlBd. (1994) 23 Cal.App.4th 1459, 1471.) Likewise, Cal. Civil Code § 3343, which covers damagesresulting from the fraudulent sale of property, does not list injunctive relief as an available remedy.Therefore, the fraud claims must not be considered when evaluating Plaintiff’s request for apreliminary injunction.Plaintiff’s fourth cause of action for breach of duty care, honesty, good faith fair dealingand disclosure is only brought against Defendants eXp realty and Robach who are not affiliatedwith the party against whom the preliminary injunction is being sought. Thus, the fourth cause ofaction, and any conduct by eXp Realty or Robach, cannot be considered either.This leaves only Plaintiff’s fifth cause of action for violations of the unfair competition lawas defined by Cal. Business and Professions Code § 17200, et seq. (“UCL”). Business &Professions Code §17200 prohibits any business act or practice that is unlawful, unfair, orfraudulent. A cause of action for violating this statute “borrows” actionable conduct and makes itindependently actionable under the UCL. (Smith v. State Farm (2001) 93 Cal.App.4th 700, 718.)Here, Plaintiff could “borrow” the actionable conduct from the fraud allegations to support his UCLclaim. But, given the deposition testimony that is attached to Bank’s opposition, Plaintiff is notlikely to succeed on his fraud claims. Mr. Butter, who is the owner and CEO of Plaintiff, statesseveral times that he did not discuss the permit issue with Mr. Suk or anyone from Bank prior tomissing his first payment and after the loan was funded. (Declaration of Thomas Robins, ¶ 3,Exhibit 1.)Moreover, relief under the UCL requires ongoing wrongful business conduct. (CaliforniaService Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 56-57.) This would requireongoing wrongful business conduct that makes the foreclosure itself wrongful. Plaintiff alleges noongoing fraudulent conduct. The complaint alleges a potential single act that impacted the sale ofthe Property. Additionally, Plaintiff admits that it had defaulted on the loan. (Declaration ofParminder Singh Butter, ¶ 10.) That alone gives Bank the right to foreclose on the Property.Therefore, it is not likely that Plaintiff will succeed in proving that he reasonably relied on anystatements made by Bank or its employees or agents to support the fraud claim against Bank.

Ruling

34-2021-00305326-CU-OR-GDS

Aug 20, 2024 |Unlimited Civil (Other Real Property (not emin...) |34-2021-00305326-CU-OR-GDS

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54Tentative RulingDefendants/Cross-Complainants James Brian Putler and Brian Pifferini’s (“Defendants”) motionfor summary judgment, or in the alternative, motion for summary adjudication, is ruled upon asfollows.Plaintiffs’ counsel is admonished for failing to comply with CRC Rule 3.1110(f)(4).The parties’ unopposed requests for judicial notice are granted for the limited scope whichjudicial notice is permitted.BackgroundThis is a boundary dispute between two neighbors. Plaintiffs/Cross-Defendants Michele andAaron Solomon (“Plaintiffs”) allege the following. In 1987, Plaintiffs purchased the real propertylocated at 2031 Maple Glen Road, Sacramento, California 95864 in the subdivision known asArden Oaks. At the time of the sale, 2031 Maple Glen was owned by the Williamses.Additionally, the Williamses also owned the adjacent property located at 2041 Maple Glen.Plaintiffs allege that the Williamses developed Arden Oaks. The two properties are divided by asplit rail fence that was installed when the properties were developed in 1950. The configurationof the fence creates an enclosed wedge-shaped area (“the Wedge”) measuring approximately1,571.11 square feet. With the current configuration, Plaintiffs have exclusive access to theWedge and have installed and maintained various improvements in the Wedge.Defendants are the current owners of 2041 Maple Glen. In 2020, Defendants notified Plaintiffsthat they had commissioned a survey that revealed that the fence was not the actual boundaryline. Defendants thus informed Plaintiffs that they intended to demolish the fence and erect anew fence along the boundary line that is consistent with their survey. The new fence woulddeprive Plaintiffs access to the Wedge.Defendants filed the instant motion for summary judgment on June 20, 2023. Plaintiffs opposedand moved for leave to file an amended complaint. The Court granted Plaintiffs’ motion, and onMarch 15, 2024, Plaintiffs filed a first amended complaint. On July 10, 2024, Defendants filed asecond amended notice of motion for summary judgment/adjudication. According toDefendants’ amended notice of motion, “Defendants are entitled to summary judgment as toPlaintiffs’ complaint because Plaintiffs are not entitled to a prescriptive easem*nt as a matter oflaw. Defendants are also entitled to summary judgment as [to] their cross-complaint becauseDefendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.”(Second Amended Notice 2:4-7.)Alternatively, Defendants argue they are entitled to summary adjudication as to the followingissues: Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54 Issue No. One - Plaintiffs’ first cause of action in their Complaint for declaratory relief fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Two - Plaintiffs’ second cause of action in their Complaint for an injunction fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Three – Defendants are entitled to summary adjudication as to their first cause of action to quiet title in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt. Issue No. Four – Defendants are entitled to summary adjudication as to their second cause of action for declaratory relief in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.(Id. 2:9-18.)Since Defendants filed the instant motion on June 20, 2023, Plaintiffs have filed an amendedpleading. Accordingly, Plaintiff’s original complaint, at which the motion is directed, is nolonger operative. On this basis the motion for summary judgment as to Plaintiffs’ complaint isDENIED. The motion for summary adjudication as to issue nos. 1 and 2, also directed at claimsin Plaintiffs’ complaint, is likewise DENIED.The Court now addresses whether Defendants are entitled to summary judgment as to their cross-complaint, or in the alternative, summary adjudication as to issue nos. 3 or 4.Undisputed Material Facts [“UMF”]Defendants assert UMF nos. 1-6 in support of their motion as to issue nos. 3 and 4.Plaintiffs own the residential home at 2031 Maple Glen Road. (UMF 1.) Defendants own theresidential home at 2041 Maple Glen Road. (UMF 2.) The properties are adjacent to each otherand share a fence-line composed of “a split rail fence, a taller solid fence, brick column, and achain-link fence.” (UMF 3.) Defendants claim the fence-line is not on the legal boundary lineand encroaches on Defendants’ property. (UMF 4.) Plaintiffs dispute, arguing the fence reflectsthe legal boundary, and aerial photographs as far back as 1953 reflect the current fencing is in thesame location as the original fencing placed by the developers.Plaintiffs submit Additional Material Facts [“AMF”] nos. 1-22 in opposition.To the extent the parties’ responses to UMFs purport to assert objections to evidence, suchobjections are overruled because CRC Rule 3.1354(b) states that objections to evidence shall beset forth in a separate document and must inter alia quote or set forth the objectionable statement Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54or material.Legal StandardIn evaluating a motion for summary judgment and/or summary adjudication, the Court engagesin a three-step process.First, the Court identifies the issues framed by the pleadings. The pleadings define the scope ofthe issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issuesraised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidencesubmitted in support of or in opposition to the motion must be addressed to the claims anddefenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on amotion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papersfiled in response to a defendant’s motion for summary judgment or summary adjudication maynot create issues outside the pleadings and are not a substitute for an amendment to thepleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,1342.)Next, the Court must determine whether the moving party has met its burden. A defendantmoving for summary judgment bears the burden of persuasion that one or more elements of theplaintiff’s cause of action cannot be established, or that there is a complete defense to the causeof action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc.,§ 437c, subd. (p)(2)].)Once the moving party has met its initial burden, the burden shifts to the opposing party to showthat a material factual issue exists as to the cause of action alleged or affirmative defenseclaimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners(1993) 17 Cal.App.4th 322, 326-327.)Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonablydrawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at 843.)Summary judgment is properly granted only if the moving party’s evidence establishes that thereis no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)DiscussionIssues No. 3 and 4Defendants contend they are entitled to summary adjudication as to their first cause ofaction to quiet title in their cross-complaint because they own the Wedge and Plaintiffsdo not have a prescriptive easem*nt. Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54The first cause of action in the Cross-Complaint is premised on the following allegations: The area between the legal boundary and portions of a fence separating the properties forms a wedge. Fencing encloses the wedge area of the Property as though it is part of Cross-Defendants' property, thereby preventing Cross- Complainants access to that portion of their Property. On or around June 30, 2021, Cross-Complainants informed Cross-Defendants of their intent to tear down the fencing that separates their properties and erect a new fence along the legal boundary line between the properties. Cross-Defendants now contend that they have a prescriptive easem*nt over the wedge area.(Cross-Complaint ¶¶ 10-12.)A motion for summary judgment or adjudication is framed by the pleadings. Thepleadings define the scope of the issues on a motion for summary judgment or summaryadjudication. (FPI Dev. Inc., supra, at 381-382.) Because a motion for summaryjudgment or summary adjudication is limited to the issues raised by the pleadings (seeLewis, supra, at 694), all evidence submitted in support of or in opposition to the motionmust be addressed to the claims and defenses raised in the pleadings. Since Defendantsfiled the instant motion, Plaintiffs have filed an amended complaint, no longer asserting aprescriptive easem*nt theory. Because the motion for adjudication is directed at a claimthat is no longer being asserted, it must be DENIED.Similarly, Defendants contend they are entitled to summary adjudication as to theirsecond cause of action for declaratory relief in their cross-complaint because Defendantsown a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.The second cause of action in the Cross-Complaint is premised on the followingallegations: An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants concerning their respective rights to the wedge area of the Property. Cross-Complainants assert that Cross-Defendants have no right to the wedge area of the Property. Cross-Defendants assert that they have a prescriptive easem*nt over the wedge area of the Property.(Cross-Complaint ¶ 17.)Again, the Cross-Complaint is premised on allegations Plaintiff is no longer asserting.Accordingly, the summary adjudication is DENIED.DispositionThe motion for summary judgment/adjudication is DENIED in its entirety, without prejudice, for Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54the foregoing reasons.The Court need not rule on Defendants’ objections to evidence as they were not material to theCourt’s disposition of the motion. (Code Civ. Proc. §437c(q).)The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf. Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6

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Oct 25, 2017 |William B Rebolini |Real Property - Other (Discharge/Satisfied Mtg.) |Real Property - Other (Discharge/Satisfied Mtg.) |621094/2017

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Jun 02, 2023 |Susan B |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |613991/2023

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Federal National Mortgage Association (Fannie Mae), A Corporation Organized And Existing Under The Laws Of The United States Of America v. John Madden, Commissioner Of Social Services Of Suffolk County, John Doe, Said Name Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants Of Premises Being Foreclosed Herein, And Any Parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises

Mar 26, 2018 |Thomas Whelan |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |605609/2018

EXHIBIT(S) - 14 (Motion #001) - Affidavits of Service for Commencement Documents March 10, 2022 (2024)
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