Reply in Support of Motion To Dismiss

Case 3:20-cv-04418-VC Document 41 Filed 08/13/20 Page 1 of 11
1 YU | MOHANDESI LLP
2 Pavel Ekmekchyan (SBN 223222)

213.985.2007 | pavel@yumollp.com
3 Neeru Jindal (SBN 235082)
213.266.5459 | njindal@yumollp.com
4 633 West Fifth Street, Suite 2800
Los Angeles, CA 90071
5 213.377.5501 Facsimile
6 Attorneys for Defendants
NewRez LLC dba Shellpoint Mortgage Servicing,
7 Qwendena Robinson, and Alfonso Ramirez
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9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO COURTHOUSE

633 West Fifth Street, Suite 2800
12
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13 KIMBERLY COX, Case No.: 3:20-cv-04418-VC

Assigned to the Hon. Vince Chhabria
14 Plaintiff,
15 v. DEFENDANTS’ REPLY IN SUPPORT OF
MOTION TO DISMISS
16 LAW OFFICES OF LES ZIEVE, A
PROFESSIONAL CORPORATION; RICHARD Date: September 10, 2020
17 L. MROCZEK; NEWREZ LLC; QWENDENA Time: 10:00 a.m.
ROBINSON; ALFONSO RAMIREZ; AND ALL Courtroom: 4 – 17th Floor
18
PERSONS KNOWN OR UNKNOWN,
19 CLAIMING ANY LEGAL OR EQUITABLE
RIGHT, TITLE, ESTATE, LIEN OR INTEREST
20 IN THE PROPERTY DESCRIBED IN THE Complaint Filed: May 8, 2020
COMPLAINT, ADVERSE TO PLAINTIFF’S Removal Date: July 2, 2020
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TITLE OR ANY CLOUD UPON PLAINTIFF S
22 TITLE THERETO; AND DOES 1-100
INCLUSIVE,
23
Defendants.
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REPLY IN SUPPORT OF MOTION TO DISMISS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Instead of focusing on the substance of Defendants’ Motion to Dismiss, Plaintiff Kimberly
4 Cox’s (“Plaintiff”) overlong Opposition goes through Defendants’ Motion to Dismiss (the “Motion”)
5 paragraph by paragraph and cursorily denies, refutes, and criticizes Defendants’ arguments while at
6 the same time resorting to ad hominem attacks on counsel and hyperbolic characterizations devoid of
7 analysis or authority.
8 Plaintiff’s Opposition confirms that this lawsuit is merely a continued attempt to tie up the
9 property in meritless litigation so she can maintain possession without having to pay for it. The
10 Court should grant Defendants’ Motion to Dismiss without leave to amend because there are no
11 grounds to give Plaintiff the property free and clear. As set forth in Defendants’ Motion, Plaintiff
12 fails to allege a single claim for relief against Defendants, and the Court should dismiss Plaintiff’s
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13 Complaint without leave to amend.
14 II. THE OPPOSITION FAILS TO OVERCOME APPLICATION OF RES JUDICATA
15 AND COLLATERAL ESTOPPEL TO BAR THE PENDING LAWSUIT
16 As discussed in the Motion, Plaintiff’s Complaint is barred by principles of res judicata and
17 collateral estoppel because there is an identity of parties, the claims and issues were previously
18 raised in the Prior Action, and there was a final judgment against Plaintiff. Although convoluted,
19 each cause of action in this lawsuit relies on the same threshold contention—that because Plaintiff
20 allegedly rescinded her loan in 2007, subsequent efforts by the lender and its loan servicers to
21 enforce the Deed of Trust’s power of sale and record non-judicial foreclosure documents are
22 improper because Shellpoint lacks authority to foreclose on a purportedly void loan. However, the
23 issues surrounding the alleged rescission and Plaintiff’s ability to bring claims arising out of or
24 relating to the rescission theory were already challenged and raised in Plaintiff’s Prior Action filed
25 against Shellpoint, among others.
26 Like the Prior Action, this lawsuit concerns Plaintiff’s same property, the same loan, the
27 same Deed of Trust, and the same erroneous position that Plaintiff’s loan has been rescinded
28 therefore Shellpoint lacks authority to initiate foreclosure proceedings. Plaintiffs already raised
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1 these same exact theories before in the Prior Action. (RJN, Ex. F.) The fact that Plaintiff has recast
2 the Complaint a second time around with different claims is of no import because the underlying
3 theory is the exact same (i.e. due to the rescission, there is no loan and therefore there can be no
4 foreclosure proceedings). Plaintiff does not dispute this in the Opposition. Plaintiff similarly does
5 not dispute that issue preclusion or collateral estoppel also bars Plaintiff’s Complaint because the
6 issue raised herein – namely, Plaintiff’s standing to bring claims arising out of the rescission theory,
7 is the very issue that was previously litigated and decided in the Prior Action.
8 Instead, in her Opposition, Plaintiff argues that NewRez LLC is not identical to the party
9 previously named as a defendant by Plaintiff in the Prior Action and that there was “not a final
10 judgment on the merits.” [Dkt. 33 at ¶ 48.] As to NewRez LLC, Plaintiff contends that defense
11 counsel “misnames” it as Shellpoint to “claim both parties are the same when they are not.” [Dkt. 33
12 at ¶ 49.] However, “New Penn Financial, LLC d/b/a Shellpoint Mortgage Servicing” changed its
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13 name to “NewRez LLC d/b/a Shellpoint Mortgage Servicing” effective January 7, 2019. As
14 discussed more fully herein below, whether defendant refers to itself as NewRez LLC or Shellpoint
15 is of no consequence; Shellpoint Mortgage Servicing is the fictitious business name of NewRez LLC
16 and is not a separate entity. Accordingly, as NewRez LLC is the defendant in the current action and
17 New Penn Financial LLC was a defendant in the Prior Action, there is in fact an identity of parties.
18 Plaintiff’s contention about the lack a “final judgment on the merits” is similarly easily
19 refuted and belied by the judicially noticeable documents. [See Doc # 6-6.] As discussed in the
20 Motion, a Judgment was entered in the Prior Action and was in fact affirmed on appeal. Supreme
21 Court precedent confirms that a dismissal for failure to state a claim under Rule 12(b)(6) is a
22 “judgment on the merits” to which res judicata applies. Federated Dep't Stores v. Moitie 452 U.S.
23 394, 399 n. 3 (1981).
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1 III. THE OPPOSITION FAILS TO ESTABLISH PLAINTIFF’S STANDING TO BRING
2 HER CLAIMS
3 As discussed more fully in the Motion, this Court 1 already found that Plaintiff lacks standing
4 to allege any claim that accrued pre-petition because those claims remain property of the estate and,
5 thus, the Chapter 7 trustee, rather than Plaintiff, has standing to bring those claims. See In re Lopez,
6 283 B.R. 22, 28 (9th Cir. BAP 2002). For this reason, Plaintiff is unable to maintain her claims in
7 this lawsuit because any claims that relate to, or arise out of, the purported rescission were required
8 to be scheduled in Plaintiff’s bankruptcy, but were not. In her Opposition, Plaintiff offers no
9 cognizable argument that would support an inference otherwise. Plaintiff attempts to make short
10 shrift of Defendants’ arguments by claiming that the “entire section is untrue and unrelated to this
11 case”, that Defendants’ legal authorities “have no relevance to the facts of this action” and that
12 Defendants only offer “untruthful legal conclusions.” [Dkt. 33 at ¶ 62.] Each of Plaintiff’s causes of
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13 action in the Complaint is predicated, in whole or in part, on allegations that the loan was rescinded
14 in 2007. However, because Plaintiff failed to schedule claims related to or arising out of the
15 purported rescission in her bankruptcy, and such claims were never abandoned by the Chapter 7
16 trustee, Plaintiff lacks standing to bring the claims now.
17 Plaintiff argues in her Opposition, as she similarly argued in the Prior Action, that “any right
18 Ms. Cox had to state a cause of action “related to” the Rescission, terminated pursuant to the statute
19 of repose and limitations, years before filing for bankruptcy protection (Dec. 2007 and July 2008
20 respectively).” [Dkt. 33 at ¶ 42.] Plaintiff goes on to argue that the claims in the Complaint accrued
21 in 2020. As the Court previously explained, Plaintiff is incorrect and was required to disclose all
22 potential assets to the bankruptcy court, even those that were speculative, contingent, future,
23 unliquidated, etc.:
24 Plaintiff additionally argues that she could not have raised her
claims in the bankruptcy because she knew that, given the state of
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1 Plaintiff takes umbrage with Defendants’ use of the term “this Court” claiming that “this Court”
26 has not made any findings or rulings. [Dkt. 33 at ¶ 62.] Plaintiff is wrong and fails to grasp the fact
that, even though the Prior Action was pending in the San Jose Division of the Northern District of
27 California, while this action is pending in the San Francisco Division, each of the Divisions
comprise the Northern District – which is one court.
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1 Ninth Circuit law at that time, claims brought in 2010 concerning a

loan that was consummated in 2004 would have been considered
2 time barred. This argument ignores a debtor’s obligation to
disclose all assets to the bankruptcy court. See 11 U.S.C. §
3 521(a)(1). This requirement exists to enable the trustee to
determine whether claims should be pursued. In other words, once
4 a debtor enters the bankruptcy process, it is no longer up to the
debtor to unilaterally determine what claims the trustee should and
5 should not pursue. See In re Yonikus, 996 F.2d 866, 869 (7th Cir.
1993) (explaining how under the definition of the bankruptcy
6 estate, virtually all property of the debtor becomes property of the
bankruptcy estate and holding that “every conceivable interest of
7 the debtor, future, nonpossessory, contingent, speculative, and
derivative, is within the reach of [that definition]”) (citing In re
8 Neuton, 922 F.2d 1379, 1382-83 (9th Cir. 1990)).
9 [Dkt. 6-6 at 9:2-13.] Thus, any claim challenging the validity of the loan, and Shellpoint’s
10 right/authority to foreclose, based on the purported rescission of the loan, needed to be scheduled in
11 her bankruptcy case. Plaintiff’s failure to do so deprives her of standing to bring subsequent claims,
12 such as those in the current lawsuit.

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13 IV. PLAINTIFF’S OPPOSITION FAILS TO SALVAGE HER DEFICIENT CLAIMS
14 Notably, Plaintiff’s prolix Opposition devotes less than three and a half pages to the actual
15 arguments in the Motion concerning the lack of merits of her claims. By and large, Plaintiff does not
16 address the arguments advanced by Defendants and, in failing to oppose them, concedes the merits
17 of such arguments. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (opposing party’s
18 failure to oppose the moving party’s arguments in a motion to dismiss is grounds for dismissal);
19 Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994); Tatum v. Schwartz, No. CIV S-06-01440-DFL-
20 EFB, 2007 WL 419463, at *3 (E.D. Cal. Feb.5, 2007) (dismissing claim because plaintiff “tacitly
21 concede[d] this claim by failing to address defendants’ argument in her opposition.”).
22 A. Plaintiff’s First Claim for Violation of the RFDCPA Continues to Fail
23 Plaintiff fails to respond to any of the factual and legal deficiencies raised by Shellpoint with
24 respect to her claims under the RFDCPA. Instead, Plaintiff discounts the arguments in the Motion
25 and attempts to shrug them off as containing “false legal conclusions” and “unsupported and
26 untruthful legal conclusions.” [Dkt. 33 at ¶¶ 67-69.] Plaintiff simply concludes that Shellpoint is
27 wrong, but ignores the dispositive legal arguments. Accordingly, as set forth in the moving papers,
28 Plaintiff fails to allege a claim against Shellpoint under the RFDCPA for the following reasons:
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1 • The claims are not sufficiently pled because Plaintiff simply parrots the language of
2 the statutes without any factual allegations.
3 • The RFDCPA does not apply to foreclosure activity, and Plaintiff does not and cannot
4 deny that alleged foreclosure activity is the basis for her claims.
5 • Foreclosing on a property pursuant to a deed of trust is not a debt collection within
6 the meaning of the RFDCPA.
7 Accordingly, Plaintiff’s RFDCPA claim should be dismissed.
8 B. Plaintiff’s Third Claim for Slander of Title Continues to Fail
9 Plaintiff’s Opposition attempts to refute the arguments in the Motion by conclusorily
10 concluding that the authorities cited by Shellpoint “relate to recorded instruments that have authority
11 for their recording… which no defendant in this action has.” [Dkt. 33 at ¶ 70.] But as discussed
12 above, and more fully in the Motion, Plaintiff’s allegations that Shellpoint lacks authority to
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13 foreclose are contradicted by the judicially noticeable documents establishing the chain of title as
14 well as the utter lack of merit of Plaintiff’s rescission theory. Additionally, Plaintiff does not dispute
15 that her slander of title claims is based on the recorded non-judicial foreclosure documents. Civil
16 Code Section 2924(d)(1) makes clear that the recording of notices of default and trustee sale are
17 privileged acts, upon which no tort claim of any sort, other than malicious prosecution, may be
18 based. See Civ. Code § 2924(d)(1) (“[t]he mailing, publication, and delivery of notices as required
19 by this section … constitute privileged communications pursuant to Section 47.”). Notices of sale
20 and default are required by section 2924(a)(1) and (3), making those notices privileged under Civil
21 Code Section 47. Accordingly, Plaintiff’s claim fails as a matter of law.
22 C. Plaintiff’s Fifth Claim for Violation of the HBOR Continues to Fail
23 Plaintiff’s Opposition entirely fails to respond to Defendants’ HBOR arguments. Plaintiff
24 does not present any authority that supports a private right of action under Section 2294(a)(6), or that
25 supports a claim for violation of Section 2932.5. Despite the various case law in the Motion in
26 support of Shellpoint’s arguments, Plaintiff contends that Shellpoint “presented no pertinent or
27 appliable authority” and fails to distinguish any of Shellpoint’s cases to back up her contention that
28 the case law is neither pertinent nor applicable. Finally, Paragraph 76 of Plaintiff’s Opposition
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1 purports to provide case law on Section “2923.5, .55” but the referenced quote from Tamburri v.
2 Suntrust Mortg. Inc., No. C-11-2899 EMC, at *23 (N.D. Cal. Dec. 15, 2011) has to do with Section
3 2932.5 not Section 2923.5. Furthermore, the Tamburri decision does not involve Section 2923.5.
4 D. Plaintiff’s Eighth Claim for Violation of the UCL Continues to Fail
5 Plaintiff’s Opposition altogether fails to address Shellpoint’s arguments in the Motion
6 regarding Plaintiff’s UCL claim. As discussed in the Motion, Plaintiff does not – and cannot –
7 allege that she suffered any monetary or property loss as a result of Shellpoint’s conduct. Plaintiff
8 cannot allege the loss of any property because she does not allege that the Property has been sold.
9 Plaintiff thus does not have standing to allege a UCL claim. Moreover, as set forth herein and in the
10 Motion, Plaintiff fails to allege any wrongful conduct under the UCL. Absent any argument from
11 Plaintiff, the Motion should be granted as to the eighth claim in the Complaint.
12 V. PLAINTIFF’S SECOND, FOURTH, SIXTH, SEVENTH, AND NINTH CLAIMS FAIL

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13 AS A MATTER OF LAW
14 As discussed in the Joinder filed by the Shellpoint Employees [Dkt. 17], Plaintiff is unable to
15 maintain a claim against them for “aiding and abetting” in connection with the various causes of
16 action alleged against Shellpoint. That is, without establishing any liability on the part of Shellpoint,
17 the Shellpoint Employees cannot be found to have “abetted” Shellpoint with any wrongful conduct
18 and, in any event, the Shellpoint Employees cannot be held liable for “aiding and abetting” in their
19 individual capacity when acting on behalf of Shellpoint. [Id. at §I.A.] Finally, Plaintiff fails to state
20 facts in support of her allegations against Ms. Robinson for a violation of Section 2923.5. Neither
21 Plaintiff’s Opposition to the Motion to Dismiss nor her Opposition to the Joinder address these
22 arguments. In failing to do so, Plaintiff concedes her inability to do so and the claims should be
23 dismissed. See Ghazali, 46 F.3d at 53-54; Brydges, 18 F.3d at 652; Tatum, 2007 WL 419463, at *3.
24 VI. PLAINTIFF’S REMAINING ARGUMENTS IN THE OPPOSITION ARE
25 DEMONSTRABLY FALSE
26 Instead of addressing the legal arguments and authorities in the Motion, Plaintiff’s
27 Opposition contains a host of spurious arguments that Defendants will briefly address.
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1 A. Plaintiff’s Argument: Shellpoint is Not a Party to the Lawsuit. [Dkt. 33 at ¶¶
2 1(b), 10(a), 22, 49, 59.]
3 Defendants’ Response: Plaintiff’s argument is based on fundamental lack of understanding
4 regarding fictitious business names. Whether the defendant in Defendants’ filings is referred to as
5 Shellpoint or NewRez LLC is a distinction without a difference. Shellpoint is the dba aka “doing
6 business as” of NewRez LLC. California law explicitly permits an entity to do business under a
7 fictitious business name. See Bus. & Prof. Code §§ 17900-30. The use of a fictitious business name
8 does not create a separate legal entity. Pinkerton’s, Inc. v. Sup. Ct., 49 Cal. App. 4th 1342 (1996).
9 “The designation [DBA] means ‘doing business as’ but is merely descriptive of the person or
10 corporation who does business under some other name. Doing business under another name does
11 not create an entity distinct from the person operating the business.” Id. at 1348. The business name
12 is a fiction, and so too is any implication that the business is a legal entity separate from its owner.
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13 Id.; see also Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal. App. 4th 1194, 1200
14 (1996); Meller & Snyder v. R & T Properties, Inc., 62 Cal. App. 4th 1303, 1311 (1998).
15 B. Plaintiff’s Argument: The MTD is based on argument, not fact. [Dkt. 33 at ¶
16 1(c).]
17 Defendants’ Response: Plaintiff makes much ado in the Opposition that the Motion is
18 “based on argument, not fact” and repeatedly argues that Defendants fail to refute Plaintiff’s “facts”
19 or offer their own “facts.” (See, e.g., Opp’n at ¶ 1(c).) Plaintiff’s argument evidences a fundamental
20 misunderstanding of the nature of a pleading challenge. Defendants did not file a Motion for
21 Summary Judgment. Rather, they filed a Motion to Dismiss, which by its nature, must accept the
22 allegations in the Complaint except to the extent that they are contradicted by judicially noticeable
23 documents or exhibits attached to the complaint.
24 For this same reason, Plaintiff’s contention that the Motion fails to comply with Local Rule
25 7-5(a) because it “fails to provide affidavits or declarations” is flat wrong. [Dkt. 33 at ¶ 32.] That
26 Rule only requires affidavits or declaration to be submitted in support of “factual contentions.” In
27 the unlikely event this matter makes it past the pleadings stage, Defendants will file a summary
28 judgment motion in which they present the facts supported by affidavits and declarations. At this
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1 time, though, the Motion is based on the allegations in the Complaint, as well as the judicially
2 noticeable documents.
3 C. Plaintiff’s Argument: The Motion Violates Local Rules Because Defendants Fail
4 to Establish Jurisdiction in the Motion. [Dkt. 33 at ¶¶ 3, 5, 31.]
5 Defendants’ Response: Plaintiff misguidedly argues that Defendants bear the burden of
6 establishing the Court’s jurisdiction in the Motion, but fail to do so. Plaintiff relies on Local Rule 3-
7 5(a) in support of her argument. But the express language of the Rule indicates that it is not
8 applicable to motions such as Defendants’ Motion to Dismiss. See CAND L.R. 3-5(a) (“Each
9 complaint, petition, counterclaim and cross-claim must include a separate paragraph entitled
10 “Jurisdiction.” The paragraph will identify the statutory or other basis for federal jurisdiction and the
11 facts supporting such jurisdiction.”) Instead, the Rule refers to complaints and petitions.
12 Furthermore, the various case authority Plaintiff relies on are inapposite. For example,
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13 Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 682–83 (9th Cir. 2006) cited by Plaintiff
14 involved a motion to remand, not a motion to dismiss. Defendants will be filing an Opposition to
15 Plaintiff’s Motion to Remand [Doc # 32] in which they will more fully discuss and defend the
16 removal of this matter to federal court based on subject-matter jurisdiction.
17 D. Plaintiff’s Argument: Defense Counsel has Brought “Fraud” On this Court by
18 Entering an Appearance for the Shellpoint Employees. [Dkt. 33 at ¶¶ 8, 10(a).]
19 Defendants’ Response: Akin to arguments advanced in the Prior Action, and rejected by the
20 Court, is Plaintiff’s argument that defense counsel has brought “fraud on this Court” and that counsel
21 “does not” have a “legal services agreement” with the Shellpoint Employees. (Id.) Plaintiff’s
22 arguments are baseless and frivolous. Counsel is not a party to this lawsuit, is not required to
23 produce evidence of their agreement of representation, and in fact any such communications would
24 be privileged.
25 E. Plaintiff’s Argument: The RJN Violates FRCP 5.2 [Dkt. 33 at ¶ 32.]
26 Defendants’ Response: Ironically, Plaintiff objects to Defendants’ Request for Judicial
27 Notice claiming that Defendants failed to redact account numbers in the attached exhibits, most
28 notably in Plaintiff’s bankruptcy schedules found in Exhibit B of the RJN. However, Plaintiff
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1 originally filed the bankruptcy schedules with her full account numbers and is unable to now object
2 to Defendants’ request that the Court take judicial notice of those very bankruptcy schedules that
3 Plaintiff herself filed.
4 VII. CONCLUSION
5 Based on the foregoing, Defendants respectfully requests that this Court grant the Motion to
6 Dismiss this action in its entirety without leave to amend.
7
8 DATED: August 13, 2020.
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9
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By /s/ Neeru Jindal
11 Pavel Ekmekchyan
Neeru Jindal
12 Attorneys for Defendants
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13 NewRez LLC dba Shellpoint Mortgage Servicing,

Qwendena Robinson, and Alfonso Ramirez
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 13, 2020, I electronically filed the foregoing document(s) entitled:
3
4 • DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
5
6 with the Clerk of the Court at the United States District Court, Northern District of California using
7 the CM/ECF system and served a copy of same upon all counsel of record via the Court's electronic
8 filing system.
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10 DATED: August 13, 2020
11 By /s/ Neeru Jindal
12 Neeru Jindal
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CERTIFICATE OF SERVICE

Reply in Support of Motion To Dismiss

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Case 3:20-cv-04418-VC Document 41 Filed 08/13/20 Page 1 of 11

2 Pavel Ekmekchyan (SBN 223222)

10 NORTHERN DISTRICT OF CALIFORNIA

11 SAN FRANCISCO COURTHOUSE

13 KIMBERLY COX, Case No.: 3:20-cv-04418-VC

1 MEMORANDUM OF POINTS AND AUTHORITIES

3 Instead of focusing on the substance of Defendants’ Motion to Dismiss, Plaintiff Kimberly

13 Complaint without leave to amend.

14 II. THE OPPOSITION FAILS TO OVERCOME APPLICATION OF RES JUDICATA

15 AND COLLATERAL ESTOPPEL TO BAR THE PENDING LAWSUIT

25 against Shellpoint, among others.

23 394, 399 n. 3 (1981).

1 III. THE OPPOSITION FAILS TO ESTABLISH PLAINTIFF’S STANDING TO BRING

16 trustee, Plaintiff lacks standing to bring the claims now.

1 Ninth Circuit law at that time, claims brought in 2010 concerning a

12 such as those in the current lawsuit.

13 IV. PLAINTIFF’S OPPOSITION FAILS TO SALVAGE HER DEFICIENT CLAIMS

21 concede[d] this claim by failing to address defendants’ argument in her opposition.”).

22 A. Plaintiff’s First Claim for Violation of the RFDCPA Continues to Fail

2 the statutes without any factual allegations.

5 • Foreclosing on a property pursuant to a deed of trust is not a debt collection within

6 the meaning of the RFDCPA.

7 Accordingly, Plaintiff’s RFDCPA claim should be dismissed.

8 B. Plaintiff’s Third Claim for Slander of Title Continues to Fail

9 Plaintiff’s Opposition attempts to refute the arguments in the Motion by conclusorily

21 Code Section 47. Accordingly, Plaintiff’s claim fails as a matter of law.

22 C. Plaintiff’s Fifth Claim for Violation of the HBOR Continues to Fail

23 Plaintiff’s Opposition entirely fails to respond to Defendants’ HBOR arguments. Plaintiff

26 support of Shellpoint’s arguments, Plaintiff contends that Shellpoint “presented no pertinent or

4 D. Plaintiff’s Eighth Claim for Violation of the UCL Continues to Fail

5 Plaintiff’s Opposition altogether fails to address Shellpoint’s arguments in the Motion

12 V. PLAINTIFF’S SECOND, FOURTH, SIXTH, SEVENTH, AND NINTH CLAIMS FAIL

24 VI. PLAINTIFF’S REMAINING ARGUMENTS IN THE OPPOSITION ARE

1 A. Plaintiff’s Argument: Shellpoint is Not a Party to the Lawsuit. [Dkt. 33 at ¶¶

2 1(b), 10(a), 22, 49, 59.]

3 Defendants’ Response: Plaintiff’s argument is based on fundamental lack of understanding

15 B. Plaintiff’s Argument: The MTD is based on argument, not fact. [Dkt. 33 at ¶

23 documents or exhibits attached to the complaint.

26 Rule only requires affidavits or declaration to be submitted in support of “factual contentions.” In

4 to Establish Jurisdiction in the Motion. [Dkt. 33 at ¶¶ 3, 5, 31.]

16 removal of this matter to federal court based on subject-matter jurisdiction.

17 D. Plaintiff’s Argument: Defense Counsel has Brought “Fraud” On this Court by

18 Entering an Appearance for the Shellpoint Employees. [Dkt. 33 at ¶¶ 8, 10(a).]

25 E. Plaintiff’s Argument: The RJN Violates FRCP 5.2 [Dkt. 33 at ¶ 32.]

26 Defendants’ Response: Ironically, Plaintiff objects to Defendants’ Request for Judicial

3 Plaintiff herself filed.

6 Dismiss this action in its entirety without leave to amend.

13 NewRez LLC dba Shellpoint Mortgage Servicing,

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