Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 1 of 22 Page ID #:746
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
1 Mark T. Flewelling (# 96465)
mflewelling@afrct.com
2 Robert C. Little (# 182396)
3 rlittle@afrct.com
D. Dennis La (# 237927)
4 dla@afrct.com
ANGLIN, FLEWELLING, RASMUSSEN,
5
CAMPBELL & TRYTTEN LLP
6 199 South Los Robles Avenue, Suite 600
Pasadena, California 91101-2459
7 (626) 535-1900 ǀ Fax: (626) 577-7764
8 Attorneys for Defendant
WELLS FARGO BANK, N.A.,
9 successor by merger with
10 Wells Fargo Bank Southwest, N.A.,
formerly known as Wachovia Mortgage,
11 FSB, formerly known as World Savings
Bank, FSB (Wells Fargo)
12
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION
15
16 KEITH WINTERBOWER, as
17 Trustee to the Keith Winterbower
Revocable Trust, and DEBRA
18 WINTERBOWER,
19
20
vs.
Plaintiffs,
21 WELLS FARGO BANK, N.A., a
business entity form unknown,
22 REGIONAL TRUSTEE SERVICES
CORPORATION, a business entity
23 form unknown, and DOES 1-100,
24 inclusive,
25
CASE NO.: 8:13-cv-00360-DOC-MLGx
DEFENDANT WELLS FARGO’S
RESPONSE TO THE AMICUS CURIÆ
BRIEF FILED BY THE
“HOMEOWNER BILL OF RIGHTS
COLLABORATIVE,” ET AL.
[Assigned to the
Honorable David O. Carter, Courtroom 9D]
Defendants.
26
27
28
93000/FR0814/00687524-1 {
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 2 of 22 Page ID #:747
1
TABLE OF CONTENTS
Page
2
3 1.
INTRODUCTION ........................................................................................... 1 4 2.
5
LEGAL ANALYSIS AND ARGUMENT...................................................... 3 A.
The vast majority of district courts in California have correctly
held that HOLA preemption applies to Wells Fargo postmerger. .................................................................................................. 4 B.
The Arizona district court in Gerber incorrectly decided HOLA
preemption. Though it offers a memorable quote regarding the
analysis of “nothing,” the opinion itself offers nothing to
support its contrary conclusion that HOLA does not apply postmerger. .................................................................................................. 5 C.
Exercising its plenary authority over FSBs and their loans, the
OTS has mandated that HOLA preemption attaches to and
survives the sale or transfer of a FSB-originated loan. ......................... 7 D.
The recent Akopyan decision confirms HOLA’s application
after the Wachovia–Wells Fargo merger. ........................................... 10 E.
The Parties specifically chose HOLA and its implementing
regulations as the governing law, and they mutually agreed that
HOLA would apply to the FSB’s successors. .................................... 12 F.
A judicial construction of the loan which fails to apply HOLA
impermissibly changes the terms of the contract. ............................... 14 6
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
8
9
10
11
12
13
14
15
16
17
18
19 3.
CONCLUSION. ............................................................................................ 15 20
21
22
23
24
25
26
27
28
93000/FR0814/00687524-1 {
-i-
CASE NO.: 8:13-cv-00360-DOC-MLGx
TABLE OF CONTENTS
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 3 of 22 Page ID #:748
1
TABLE OF AUTHORITIES
2
Page(s)
3 FEDERAL CASES
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
4 Albizo v. Wachovia Mortgage,
No. 2:11-cv-02991 KJN, 2012 U.S. Dist. LEXIS 55985
5
(E.D. Cal. Apr. 19, 2012) .................................................................................... 1
6
Auer v. Robbins,
7
519 U.S. 452 (1997) ............................................................................................. 7
8 California v. Coast Fed. Sav. & Loan Ass’n,
98 F. Supp. 311 (S.D. Cal. 1951) ......................................................................... 3
9
10 Castillo v. Wachovia Mortgage,
No. C-12-0101 EMC, 2012 U.S. Dist. LEXIS 50926
11
(N.D. Cal. Apr. 11, 2012) .............................................................................. 4, 15
12
Chevron, U.S.A., Inc. v. NRDC, Inc.,
13
467 U.S. 837 (1984) ............................................................................................. 7
14
DeLeon v. Wells Fargo Bank, N.A.,
15
729 F. Supp. 2d 1119 (N.D. Cal. 2010) ..................................................... 4, 5, 15
16 Espinoza v. Farah Mfg. Co.,
414 U.S. 86 (1973) ............................................................................................... 7
17
18 Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,
458 U.S. 141 (1982) ............................................................................................. 9
19
20 Gerber v. Wells Fargo Bank, N.A.,
No. CV 11-01083-PHX-NVW, 2012 U.S. Dist. LEXIS 15860
21
(D. Ariz. Feb. 9, 2012) (Gerber) ................................................................ passim
22
Gorton v. Wells Fargo Bank, N.A.,
23
2012 U.S. Dist. LEXIS 168158 (C.D. Cal. Nov. 27, 2012) ....................... 4, 5, 15
24
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) ............................................................................................. 7
25
26 Guerrero v. Wells Fargo Bank, N.A.,
No. CV 10-5095-VBF(AJWx), 2010 U.S. Dist. LEXIS 96261
27
(C.D. Cal. Sep. 14, 2010) .................................................................................... 4
28
93000/FR0814/00687524-1 {
-ii-
CASE NO.: 8:13-cv-00360-DOC-MLGx
TABLE OF AUTHORITIES
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 4 of 22 Page ID #:749
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
1 Haggarty v. Wells Fargo Bank, N.A.,
No. C 10-02416 CRB, 2011 U.S. Dist. LEXIS 9962
2
(N.D. Cal. Feb. 2, 2011) .................................................................................. 4, 5
3
Hague v. Wells Fargo Bank, N.A.,
4
2012 U.S. Dist. 41013. (N.D. Cal. Mar. 26, 2012) .............................................. 4
5
In re Ocwen Loan Servicing, LLC,
6
491 F.3d 638 (7th Cir. 2007) .............................................................................. 11
7 Laurens Fed. Sav. & Loan Assn. v. South Carolina Tax Comm’n,
365 U.S. 517 (1961) ............................................................................................. 3
8
9 Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) ......................................................................................... 8, 9
10
11 Molosky v. Washington Mutual, Inc.,
664 F.3d 109 (6th Cir. 2011) .............................................................................. 11
12
13 Pittman v. Home Owners’ Loan Corp.,
308 U.S. 21 (1939) ............................................................................................... 3
14
Progressive Consumers Fed. Credit Union v. United States,
15
79 F.3d 1228 (1st Cir. 1996) .............................................................................. 14
16
Sato v. Wachovia Mortgage, FSB,
17
No. 11-00810 EJD, 2011 U.S. Dist. LEXIS 75418
(N.D. Cal. July 13, 2011) .................................................................................... 4
18
19 Settle v. World Savings Bank, FSB,
2012 U.S. Dist. LEXIS 4215 (C.D. Cal. Jan. 11, 2012)................................. 1, 10
20
21 Silvas v. E*Trade Mortgage Corp.,
514 F.3d 1001 (9th Cir. 2008) .............................................................................. 8
22
Tamburri v. Suntrust Mortgage, Inc.,
23
875 F. Supp. 2d 1009 (N.D. Cal. 2012) ............................................................... 4
24
Williams v. Wells Fargo Bank, N.A.,
25
No. SA CV 13-0303-DOC, 2013 U.S. Dist. LEXIS 68615
(C.D. Cal. May 13, 2013) (Williams) ......................................................... passim
26
27 Wol Hee Oh v. Wells Fargo Bank NA,
No. 11-55348, 473 Fed. Appx. 807 (9th Cir. 2012) ............................................. 1
28
93000/FR0814/00687524-1 {
-iii-
CASE NO.: 8:13-cv-00360-DOC-MLGx
TABLE OF AUTHORITIES
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 5 of 22 Page ID #:750
1 STATE CASES
2 Akopyan v. Wells Fargo Home Mortgage, Inc.,
215 Cal. App. 4th 120 (Apr. 4, 2013).......................................................... passim
3
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
4 Maudlin v. Pacific Decision Sciences Corp.,
137 Cal. App. 4th 1001 (2006) ........................................................................... 14
5
6 Nevin v. Salk,
45 Cal.App.3d 331 (1975) .................................................................................. 14
7
8 Safeco Ins. Co. v Robert S.,
26 Cal. 4th 758 (2001) ........................................................................................ 14
9
Wade v. Diamond A Cattle Co.,
10
44 Cal. App. 3d 453 (1975) ................................................................................ 14
11
FEDERAL STATUTES
12
12 U.S.C. § 1461, et seq. .................................................................................. passim
13
14 12 U.S.C. § 1464(a), (c)........................................................................................... 11
15 12 U.S.C. § 1464(h) ................................................................................................... 3
16 12 U.S.C. § 5553.................................................................................................. 1, 10
17
18
19
20
STATE STATUTES
Cal. Civ. Code § 2923.5 ........................................................................................ 4, 1
Cal. Civ. Code § 2923.6 .................................................................................. 1, 2, 15
21 REGULATIONS
22 12 C.F.R. § 560.2 ................................................................................................... 6, 8
23 12 C.F.R. § 560.2(a), (c) ...................................................................................... 6, 11
24
12 C.F.R. § 560.2(b)(10) ........................................................................................... 9
25
OTHER AUTHORITIES
26
1 Witkin, Summary of California Law, Contracts, § 715 (8th ed. 1973) ................ 14
27
28 9 Witkin, Summary. California. Law, Corporations § 198(10th Ed. 2005) ............ 13
93000/FR0814/00687524-1 {
-iv-
CASE NO.: 8:13-cv-00360-DOC-MLGx
TABLE OF AUTHORITIES
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 6 of 22 Page ID #:751
1
1. INTRODUCTION
2
Wells Fargo’s motion to dismiss has been fully briefed and under submission
3 since April 5, 2013. Wells Fargo asserted in its motion to dismiss that Plaintiffs’
4 first claim for an alleged violation of California Code of Civil section 2923.6 is
5 preempted by Home Owners’ Loan Act (HOLA). On May 21, 2013, a collective
6 of self-described amici curiæ (various public housing advocates) filed a brief in
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 this action urging the Court to conduct its preemption analysis under the National
8 Bank Act (NBA) instead of under HOLA.1
9
In support of their contention, the amici insist—contrary to an overwhelming
10 majority of courts—that the FSB origination of a loan “does nothing” to change
11 their “analysis” that the NBA applies instead of HOLA. (Dkt. No. 26, p. 2:14-16).
12 The amici tie this contention to a footnote citing an Arizona district court’s outlier
13 opinion called Gerber v. Wells Fargo Bank, N.A., No. CV 11-01083-PHX-NVW,
14 2012 U.S. Dist. LEXIS 15860 (D. Ariz. Feb. 9, 2012) (Gerber), and a subsequent
15 decision adopting Gerber’s reasoning without adding anything meaningful to it.2
16 The amici then advance an incorrect interpretation of Dodd-Frank, suggesting that
17 it has retroactive application to HOLA originated loans, though it does not. 3
18
19
20
21
22
23
24
25
26
27
1
This identical group of amici did the same thing as here in a Ninth Circuit appeal
entitled Wol Hee Oh v. Wells Fargo Bank NA, No. 11-55348, 473 Fed. Appx. 807
(9th Cir. 2012) (mem.). There, the amici filed a last-minute amicus brief 20 days
before oral argument on June 5, 2012. They attempted to inject their argument—
not raised by any party to the appeal—that the district court had “erred by
analyzing preemption under HOLA instead of the NBA standard” when it granted
Wells Fargo’s motion to dismiss plaintiffs’ claims under California Civil Code
§ 2923.5 after finding they were preempted by HOLA. The appeal was mooted by
a subsequent sale, and the amici were effectively ignored. Oh, 473 Fed. Appx. at
808 (“The court expresses no opinion as to the merits of the … preemption issues
raised in this appeal.”).
2
Albizo v. Wachovia Mortgage, No. 2:11-cv-02991 KJN, 2012 U.S. Dist. LEXIS
55985, *53 (E.D. Cal. Apr. 19, 2012).
3
12 U.S.C. § 5553; Settle v. World Savings Bank, FSB, 2012 U.S. Dist. LEXIS
28 4215, at *45 (C.D. Cal. Jan. 11, 2012) (“[C]laims related to contracts formed prior
[Footnote Text Cont’d On Next Page]
93000/FR0814/00687524-1
-1-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 7 of 22 Page ID #:752
1
The rest and balance of the amicus brief which argues that Section 2923.6 is not
2 preempted by the NBA necessarily depends on the reader’s acceptance of their
3 incorrect a priori contention that HOLA does not apply to a loan originated by a
4 FSB which is later acquired by merger by a national bank. This, in turn, would
5 require a wholesale adoption of Gerber, a proposition which is problematic for
6 several reasons. First, the Arizona district court failed to explain how it could rely
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 on OCC regulatory opinions, but ignore equally effective and more relevant OTS
8 regulatory opinions. Second, the court never explained the reasoning which might
9 permit its wholesale disregard of fundamental principles of corporate succession
10 law. Third, the Arizona court was also uninformed by the subsequent Akopyan
11 opinion discussed below. Finally, Gerber presumably did not consider the express
12 terms of the promissory note and deed of trust because Gerber himself was not
13 even a borrower, but instead a bidder at a foreclosure sale of a second deed of trust.
14
All of these authorities support the vast majority of district courts which have
15 correctly held that HOLA preemption continues to apply to FSB-originated loans
16 acquired by a national bank, or any third party investor or servicer for that matter,
17 notwithstanding the fact that they lack a HOLA charter. They also serve to
18 confirm this Court’s previous determinations that federal preemption under HOLA
19 applies to Wells Fargo’s servicing of a World Savings loan after its merger with
20 Wachovia in Williams v. Wells Fargo Bank, N.A., No. SA CV 13-0303-DOC
21 (MLGx), 2013 U.S. Dist. LEXIS 68615, *6–*12 (C.D. Cal. May 13, 2013)
22 (Williams). Williams correctly concluded that HOLA preempted a borrower’s state
23 law claims involving a loan that originated with a federal savings bank but was
24 later acquired by a national bank through merger. This prevailing view is based on
25 the better-reasoned analysis, notwithstanding the amici’s attempt to persuade the
26
27 [Footnote Text Cont’d From Previous Page]
to the enactment of Dodd-Frank are subject to the preemption analysis in effect at
28 that time.”).
93000/FR0814/00687524-1
-2-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 8 of 22 Page ID #:753
1 Court to adopt Gerber and then leap to preemption analysis under the NBA, which
2 the amici have set up as a strawman destined to be cut down by the rest of their
3 brief. The analysis is flawed from the start.
4
2. LEGAL ANALYSIS AND ARGUMENT
5
By its decision in Williams, this Court implicitly recognized the “dual aspect”
6 of HOLA preemption—HOLA applies to both federal savings associations and the
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 loans they originate, cradle to grave. Akopyan v. Wells Fargo Home Mortgage,
8 Inc., 215 Cal. App. 4th 120, 143 (Apr. 4, 2013) (“We … conclude that the OTS
9 intended to occupy the field of lending regulation as to both federal thrifts and
10 their loans.” [emphasis added]); California v. Coast Fed. Sav. & Loan Ass’n, 98 F.
11 Supp. 311 (S.D. Cal. 1951) (noting the “cradle to grave” regulatory scheme created
12 by HOLA and its implementing regulations as promulgated by the Office of Thrift
13 Supervision’s (OTS’s) predecessor, the Federal Home Loan Bank Board
14 (FHLBB)). The dual aspect of HOLA has applied since its inception in 1933 when
15 both FSBs and their loans were treated as exempt from discriminatory state and
16 local tax treatment.4
17
Because the amici’s analysis is dependent on acceptance of Gerber, the inherent
18 flaws in Gerber are appropriately addressed here, as are the authorities for
19 applying HOLA preemption to a borrower’s claims after merger of the FSB.
20 / / /
21 / / /
22 / / /
23
24
4
The original language of the Home Owners’ Loan Act of 1933 in its section 5(h)
25 (codified in former 12 U.S.C. § 1464(h)) provided: “[N]o State … or local taxing
26 authority shall impose any tax on such associations or their … loans … greater
than that imposed by such authority on other similar local mutual or cooperative
27 thrift and home financing institutions.” Laurens Fed. Sav. & Loan Assn. v. South
Carolina Tax Comm’n, 365 U.S. 517, 523 (1961), citing Pittman v. Home Owners’
28 Loan Corp., 308 U.S. 21 (1939).
93000/FR0814/00687524-1
-3-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 9 of 22 Page ID #:754
1
A. The vast majority of district courts in California have
2
correctly held that HOLA preemption applies to Wells Fargo
3
post-merger.
4
In Williams, this Court correctly held that a post-merger servicing claim under
5 California Civil Code § 2923.5 was preempted under HOLA. “The same HOLA
6 preemption analysis applies even after the FSB merges into a national bank, as
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 long as the mortgage originated with an FSB.” Id. at *9, citing Castillo v.
8 Wachovia Mortgage, No. C-12-0101 EMC, 2012 U.S. Dist. LEXIS 50926, at *5
9 (N.D. Cal. Apr. 11, 2012) and DeLeon v. Wells Fargo Bank, N.A., 729 F. Supp. 2d
10 1119, 1126 (N.D. Cal. 2010).5
11
The Williams opinion squarely accords with well over a dozen decisions in
12 district courts decided both before and after Gerber.6
13
For example, in Gorton v. Wells Fargo Bank, N.A., No. SACV 12-1245 JVS
14 (MLGx), 2012 U.S. Dist. LEXIS 168158 (C.D. Cal. Nov. 27, 2012), the court held:
15
The relevant preemption analysis is unaltered by the merger of
16
Wachovia [] with Wells Fargo… HOLA preemption continues to
17
apply to loans originated by a federal savings bank even after those
18
banks are merged into national banking associations.
19 Id. at *12, citing Castillo and DeLeon, supra.
20
21
5
In Williams, the plaintiff failed to address or discuss Gerber. Plaintiff’s
opposition to Wells Fargo’s motion to dismiss makes a bare assertion that HOLA
23 preemption does not apply post-merger, citing Tamburri v. Suntrust Mortgage,
Inc., 875 F. Supp. 2d 1009 (N.D. Cal. 2012) without analysis or discussion.
24
6
See, e.g., DeLeon v. Wells Fargo Bank, N.A., 729 F. Supp. 2d 1119, 1126 (N.D.
25 Cal. 2010); Hague v. Wells Fargo Bank, N.A., 2012 U.S. Dist. 41013, *7. (N.D.
26 Cal. Mar. 26, 2012); Sato v. Wachovia Mortgage, FSB, No. 11-00810 EJD, 2011
U.S. Dist. LEXIS 75418, *14 (N.D. Cal. July 13, 2011); Haggarty v. Wells Fargo
27 Bank, N.A., No. C 10-02416 CRB, 2011 U.S. Dist. LEXIS 9962, *10–*11 (N.D.
Cal. Feb. 2, 2011); Guerrero v. Wells Fargo Bank, N.A., No. CV 10-509528 VBF(AJWx), 2010 U.S. Dist. LEXIS 96261, *8–*9 (C.D. Cal. Sep. 14, 2010).
22
93000/FR0814/00687524-1
-4-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 10 of 22 Page ID #:755
1
Williams and Gorton are consistent with the numerous district courts correctly
2 applying HOLA preemption to claims against Wells Fargo after its acquisition by
3 merger of Wachovia’s FSB-originated loans. See Footnote 2, ante.
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
4
B.
The Arizona district court in Gerber incorrectly decided
5
HOLA preemption. Though it offers a memorable quote
6
regarding the analysis of “nothing,” the opinion itself offers
7
nothing to support its contrary conclusion that HOLA does
8
not apply post-merger.
9
In contrast to the Williams and Gorton line of authority, the district court sitting
10 in Arizona in Gerber held that HOLA does not apply post-merger to Wells Fargo
11 notwithstanding the loan’s FSB-provenance which necessarily invoked HOLA
12 preemption. Gerber at *4.
13
The Gerber court recognized that the loans, as here, were originated by “World
14 Savings Bank (a federal savings bank), (ii) Wachovia (also a federal savings bank
15 acquired World Savings and (iii) Wells Fargo acquired Wachovia.” Gerber, *8.
16 But after conducting a cursory examination of HOLA, it reached its unsupported
17 conclusion that HOLA did not apply because Wells Fargo was a national bank.
18 Then, Gerber primarily set out on a preemption analysis under the National Bank
19 Act (NBA) to rule that federal preemption did not apply to a state consumer law.
20
Acknowledging that its view on HOLA preemption differed from the majority
21 of decisions such as Haggarty v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS
22 9962, *11 (N.D. Cal. Feb. 2, 2011) and Guerrero v. Wells Fargo Bank, N.A., 2010
23 U.S. Dist. LEXIS 96261, * 11 (C.D. Cal. Sept. 14, 2010), the Gerber court
24 concluded in its memorable quote that the decisions “cited either (a) nothing, (b)
25 each other, or (c) generic statements of law about corporations succeeding to the
26 rights of the entities they acquire.” Gerber, *9, collecting majority cases at *9–*10.
27
But Gerber itself cited nothing to support its finding that “preemption is not
28 some sort of asset that can be bargained, sold, or transferred.” Id. The contrary is
93000/FR0814/00687524-1
-5-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 11 of 22 Page ID #:756
1 true according to the OTS and the FHLBB. As briefed below, this unsupported
2 assertion is contrary to the OTS’s opinion, and it is inconsistent with the loan
3 documents.
4
From the outset, it is salient to note that Gerber was not a borrower. He was a
5 bidder at a foreclosure sale of a second deed of trust. After he took title to the
6 property subject to a first deed of trust, he then sued Wells Fargo asserting that
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 foreclosure sales of junior trust deeds violated an Arizona consumer statute.
8 Gerber, *4. Wells Fargo had argued in its second motion to dismiss that an earlier
9 “ruling” by the court created liability for “deceptive practices if it knew or should
10 have known that the senior lien was undersecured but intentionally auctioned the
11 junior lien first,” and that such liability was preempted by HOLA or the NBA.
12 Gerber, *6.
13
Notably, the district court apparently had no occasion to examine the loan
14 contract between the borrower and Wells Fargo containing the governing HOLA
15 provisions discussed in Sections E. and F., post, because Gerber was not the
16 borrower. Accordingly, the court also conducted zero analysis of the contractual
17 terms of an FSB-originated loan contract or applicable regulatory interpretations.
18
Moreover, the key measure of Gerber’s vulnerability is the court’s cursory and
19 incomplete analysis of the HOLA regulations, and its failure to review controlling
20 regulatory opinions by the OTS and the FHLBB. Reviewing only two sentences in
21 12 C.F.R. §560.2(a) and (c), the Gerber court speeds to the conclusion that:
22 “HOLA preemption was created by the OTS for the benefit of federal savings
23 associations and §560.2 plainly seeks to avoid burdening the operations of federal
24 savings associations. Wells Fargo is not a federal savings association and its cited
25 cases are not persuasive.” (emphasis omitted). Gerber, *10. The Gerber opinion
26 ended its HOLA analysis there, quickly turning next to the question of whether the
27 claims were preempted by the NBA.
28 / / /
93000/FR0814/00687524-1
-6-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 12 of 22 Page ID #:757
1
In stark contrast to its short and conclusory analysis of HOLA preemption, the
2 Gerber court conducted a comprehensive review of NBA preemption that included
3 no less than five citations to Interpretation and Advisory Letters issued by the
4 Office of the Comptroller of the Currency (OCC).7 The OCC letters provided
5 critical guidance upon which the Gerber Court relied to reach its conclusion that
6 while NBA preemption applied, it did not preempt the particular claims at issue.
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
Had Gerber conducted the same comprehensive analysis of the HOLA
8 regulations, it would have likewise focused on OTS and FHLBB opinion letters
9 establishing that HOLA “preemption would exist regardless of whether the loans in
10 question are sold by the federal association to a third party [or] are being serviced
11 by a third party[.]”8 And its result would, as it must, decidedly shift.
12
C. Exercising its plenary authority over FSBs and their loans,
13
the OTS has mandated that HOLA preemption attaches to
14
and survives the sale or transfer of a FSB-originated loan.
15
As the Gerber court no doubt recognized when it relied on the five OCC letter
16 opinions in its NBA analysis, courts must give deference to a federal agency’s
17 reasonable interpretation of its own regulations. Auer v. Robbins, 519 U.S. 452,
18 461 (1997).9 The agency’s interpretation of its own regulations controls unless the
19
20
7
Gerber at *11, citing OCC Interpretative Letter No. 1005, 2004 WL 346570
21 June 10, 2004; id. at *15, citing OCC Advisory Letter AL 2002-3, 2002 WL
521380 at *1 (Mar. 22, 2002); id. at *18, citing OCC Interpretative Letter No.
22 1005, 2004 WL 3465750; id. at *20, citing OCC Interpretative Letter No. 1005,
2004 WL 33465750; id. at *23, citing OCC Advisory Letter AL 2002-3, 2002 WL
23 521380 (Mar. 22, 2002).
24 8 Op. Gen. Counsel FHLBB (Aug. 13, 1985), available at 1985 FHLBB LEXIS
178 at *5. (See RJN, Ex. C).
25
9
See, Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 (1973) (a general counsel’s
26
advisory letter interpreting a statute is the agency’s interpretation); Chevron,
27 U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984) (an administrator of an
agency’s interpretation of a statute is entitled to deference unless unreasonable);
28 Griggs v. Duke Power Co., 401 U.S. 424, 433–434 (1971) (“The administrative
[Footnote Text Cont’d On Next Page]
93000/FR0814/00687524-1
-7-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 13 of 22 Page ID #:758
1 interpretation is plainly erroneous or inconsistent with the regulations. Long Island
2 Care at Home, Ltd. v. Coke, 551 U.S. 158, 170–171 (2007). In Silvas v. E*Trade
3 Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir. 2008) the Ninth Circuit noted that
4 the OTS’s construction of the preemption analysis under Section 560.2—the very
5 regulation Gerber reviewed to make its decision—“must be given controlling
6 weight.”
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
In 2003, the OTS interpreted 12 C.F.R. § 560.2 to preempt the New Jersey
8 Predatory Lending Law despite the fact that, as here, an assignee of an FSB9 originated loan lacked a HOLA charter. The OTS succinctly summarized the
10 question before it:
11
You further ask whether purchasers or assignees of loans
12
originated by federal savings associations would be subject to
13
claims and defenses that would not apply to the federal savings
14
association that originated the loans[.]
15 The OTS provided its definitive answer to that question:
16
Where the original creditor is a federal savings association, the
17
borrower’s ability to assert claims and defenses against that type of
18
creditor is limited by federal preemption[.] This result would be
19
consistent with the general principle that loan terms should not
20
change simply because an originator entitled to federal preemption
21
may sell or assign a loan to an investor that is not entitled to
22
federal preemption[.]
23 OTS Op. Letter No. P-2003-5 (July 22, 2003) p. 13 & n. 18, available at 2003
24 OTS LEXIS 6, p. 5 [at *13] (hereafter OTS Opinion Letter). See Supplemental
25 Request for Judicial Notice (RJN), Ex. C. In the decade since issuing its opinion,
26
Text Cont’d From Previous Page]
27 [Footnote
interpretation of [a statute] by the enforcing agency is entitled to great
28 deference.”).
93000/FR0814/00687524-1
-8-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 14 of 22 Page ID #:759
1 the OTS’s answer regarding the breadth and scope of HOLA preemption remains
2 definitive. The OTS Opinion Letter itself relied on a 1985 Opinion Letter issued
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
3 by the FHLBB10, which unequivocally concluded:
4
It is our opinion that such preemption would exist regardless of
5
whether the loans in question are sold by the federal association
6
to a third party, are being serviced by a third party, or whether
7
the escrow deposits are held at a federal association while the
8
loans have been sold in the secondary market.
9 Op. Gen. Counsel, FHLBB (Aug. 13, 1985), available at 1985 FHLBB LEXIS 178
10 at *5. (See RJN Ex. B.)
11
By their Congressionally-mandated implementation of HOLA through the
12 promulgation of regulations and controlling regulatory interpretation, the OTS and
13 its predecessor FHLBB expressly determined that HOLA preemption survives
14 when the FSB loan is sold or otherwise transferred to a third party without a
15 HOLA charter, like a national bank acquiring FSB-originated loans through
16 merger. The rationale is that state law “might interfere with the ability of federal
17 savings associations to sell mortgages that they originate under a uniform federal
18 system.” OTS Opinion Letter at p. 7 & n. 18; Akopyan, 148. And the FSB’s
19 “sale” of mortgages, of course, is a right that is itself completely free of state
20 “imposed requirements.” 12 C.F.R. § 560.2(b)(10).
21
As previously noted, the judiciary is bound to accord deference to a federal
22 agency’s interpretation of its own regulations unless plainly erroneous or
23 inconsistent with those regulations. Long Island, supra, 551 U.S. at 170–71. And
24 the OTS and FHLBB opinion letters are entirely consistent with the Congressional
25 mandate that HOLA exclusively and comprehensively preempts the field. Fidelity
26
10
“In 1989, the FHLBB was replaced by the Office of Thrift Supervision (OTS)
which was given the same plenary power to regulate federal savings associations.”
28 Akopyan, supra, 215 Cal. App. 4th 120, 138.
27
93000/FR0814/00687524-1
-9-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 15 of 22 Page ID #:760
1 Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982).
2
Leaving no room for doubt that the 2003 OTS Opinion Letter remains
3 controlling, in late 2011, the OTS’s post-Dodd Frank successor, the OCC, declared
4 that all regulatory guidance and interpretations issued by the OTS remain in effect
5 unless specifically rescinded or modified. See OCC 2011-47, OTS Integration
6 Letter (Dec. 8, 2011) (OCC Integration Letter). (RJN, Ex. D.)
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
Observing that the OTS responsibilities were transferred to the OCC effective
8 July 21, 2011, the OCC Integration Letter states: “As a result [of the 2010 Dodd9 Frank Act], the OCC assumed the responsibility for the ongoing supervision …
10 and regulation of federal savings associations. The legislation continues all OTS
11 orders, resolutions, determinations, agreements, regulations, interpretive rules,
12 other interpretations, guidelines, procedures, and other advisory materials in effect
13 the day before the transfer date.”11 The OCC Integration Letter indicates further
14 that “OCC bulletins will announce these rescissions,” and “to minimize confusion,
15 documents will be watermarked as rescinded on the OCC Web site, or former OTS
16 Web site, as applicable.” The 2003 OTS Opinion has never been watermarked,
17 and remains effective and controlling.12
18
D. The recent Akopyan decision confirms HOLA’s application
19
after the Wachovia–Wells Fargo merger.
20
The review in Akopyan v. Wells Fargo Home Mortgage, Inc., 215 Cal. App. 4th
21 120, 143 (Apr. 4, 2013) involved a consolidated appeal of putative class actions
22
11
HOLA field preemption still exists under Dodd-Frank for all loans, like this one,
originated prior to its enactment. 12 U.S.C. § 5553. “[C]laims related to contracts
24 formed prior to the enactment of Dodd-Frank are subject to the preemption
analysis in effect at that time.” Settle v. World Savings Bank, FSB, 2012 U.S. Dist.
25 LEXIS 4215, at *45 (C.D. Cal. Jan. 11, 2012). The fact that Congress ensured
26 retroactive HOLA field preemption for existing FSB loans indurates the dual
aspect of HOLA to both FSBs and their loans.
27 12
The list of rescinded opinions may be found here: http://www.occ.gov/news28 issuances/bulletins/rescinded/occ-rescinded.html.
23
93000/FR0814/00687524-1
-10-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 16 of 22 Page ID #:761
1 that were dismissed after the trial court sustained a demurrer without leave to
2 amend. Plaintiffs alleged that Aurora Loan Services LLC, which the court found
3 was a subsidiary of a federal savings bank, Aurora Bank, FSB, breached the loan
4 agreement and violated state law by misapplying payments and then charging late
5 fees arising from the misapplication. Akopyan, 130. The trial court held the
6 breach of contract claims against Aurora were preempted by HOLA even though
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 Aurora had acquired the loans from a state-chartered lender that was not otherwise
8 entitled to a HOLA preemption defense.
9
In its comprehensive opinion surveying the history of HOLA and its
10 implementing regulations, the California Court of Court began its analysis with
11 HOLA’s express authorization to FSBs to “invest in, sell, or otherwise deal in”
12 residential property loans … intended to encourage such institutions to provide
13 credit for housing safely and soundly.” Akopyan, 139, citing 12 U.S.C. §1464(a)
14 and (c). The Court concluded that analysis by holding: “We find Ocwen and
15 Molosky persuasive and conclude that the OTS intended to occupy the field of
16 lending regulations as to both federal thrifts and their loans.” Akopyan at 143
17 (emphasis added), citing In re Ocwen Loan Servicing, LLC, 491 F.3d 638, 641 (7th
18 Cir. 2007) and Molosky v. Washington Mutual, Inc., 664 F.3d 109, 113–114 (6th
19 Cir. 2011).
20
This dual aspect of HOLA preemption which applies to both FSBs and the
21 loans they originate and may later sell or transfer was overlooked by Gerber’s ipse
22 dixit conclusion that HOLA does not apply to Wells Fargo. The breadth of the
23 Akopyan Court’s analysis stands in stark contrast to Gerber, as well. The district
24 court in Gerber analyzed two sentences in §560.2(a) and (c) to speed to its
25 minority conclusion that HOLA was designed only to apply to federal savings
26 associations. Akopyan, on the other hand, examined the 2003 OTS Opinion Letter:
27
In reviewing the assignee liability provisions of the New Jersey
28
predatory lending law (N.J. Stat. Ann. § 46:10B-22 et seq.), the
93000/FR0814/00687524-1
-11-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 17 of 22 Page ID #:762
1
OTS extended preemption to federally originated loans sold or
2
assigned to investors not entitled to preemption on the principle
3
that “loan terms should not change simply because an originator
4
entitled to federal preemption may sell or assign a loan to an
5
investor that is not entitled to federal preemption.” Its rationale
6
was that state law “might interfere with the ability of federal
7
savings associations to sell mortgages that they originated under
8
a uniform federal system.”
9 Id. at 148, quoting OTS Opinion Letter, supra, at 7 & n. 18.
10
Responding to the borrower’s argument that “the principle that loan terms
11 should not change applies equally when a state originated loan is assigned to a
12 federal thrift,” the Akopyan Court held: “But the rationale for applying preemption
13 to the assignees of federal thrifts is to allow the thrifts themselves greater freedom
14 from state interference.” Akopyan, 148.
15
E.
The Parties specifically chose HOLA and its implementing
16
regulations as the governing law, and they mutually agreed
17
that HOLA would apply to the FSB’s successors.
18
The parties expressly agreed that HOLA would govern and construe both the
19 promissory note and deed of trust. The promissory note states at its Paragraph 12:
20
GOVERNING LAW, SEVERABILITY.
21
This note shall be governed by and construed under federal law
22
and federal rules and regulations including those for federally
23
chartered savings institutions, called “Federal Law[.]”
24 Decl. of D. La, Ex. A (“Note”) at ¶ 12. The deed of trust adopts the same term:
25
GOVERNING LAW; SEVERABILITY.
26
This Security Instrument and the Secured notes shall be governed
27
by and construed under federal law and federal rules and
28
93000/FR0814/00687524-1
-12-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 18 of 22 Page ID #:763
1
regulations, including those for federally chartered savings
2
institutions (“Federal Law”)[.]
3 RJN, Ex. A (“Deed of Trust”) at ¶ 15. “[F]ederal law and regulations… for
4 federally chartered savings institutions” means the Home Owners’ Loan Act.
5 12 U.S.C. § 1461, et seq. The parties likewise agreed that “any person who
6 takes over Lender’s rights or obligations under this Security Agreement will
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 have all of Lender’s rights and will be obligated to keep all of Lender’s
8 agreements.” Decl. of D. La, Ex. A, at ¶ 11.
9
The Note even includes “successors” in its definition of the word “Lender”:
10 “World Savings Bank, FSB, a FEDERAL SAVINGS BANK, ITS
11 SUCCESSORS AND/OR ASSIGNEES, or anyone to whom the note is
12 transferred.” (original capitalization) Decl. of D. La, Ex. A at ¶ 1. The deed of
13 trust has a comparable definition at ¶ 1(c). RJN, Ex. A.
14
Both contracts thus contemplated either World Savings’s sale of its loan or
15 its sale of itself. In the event of such a sale, the parties agreed that World
16 Savings’s successor—Wells Fargo—would not only “have all” of World
17 Savings’ “rights” under the deed of trust, but must also “keep all” of World
18 Savings’ “agreements” in the deed of trust. One of those “rights” and
19 “agreements” under the contract is the application of “federal…regulations
20 including those for federally chartered savings institutions.” See Decl. of D. La,
21 Ex. A at ¶ 12; RJN, Ex. A at ¶ 15.
22
The choice of law clause in both the note and deed of trust, coupled with the
23 “successors” clause in the deed of trust, therefore reveal that the parties intend to
24 continue HOLA’s application to the loan well beyond World Savings’ origination
25 and initial ownership.13
26
13
This is entirely consistent with applicable law: “In a merger the surviving entity
“succeeds to the rights, property, debts, and liabilities, without other transfer.” 9
28 Witkin, Summary of Cal. Law, Corporations (10th Ed. 2005) § 198, p. 968;
[Footnote Text Cont’d On Next Page]
27
93000/FR0814/00687524-1
-13-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 19 of 22 Page ID #:764
1
F.
2
3
A judicial construction of the loan which fails to apply HOLA
impermissibly changes the terms of the contract.
The parties also agreed that neither the note nor the deed of trust could be
4 modified unless both the “Lender” and “Borrower” signed a writing expressly
5 modifying the contract. (RJN Ex. A at ¶ 23.) 14
6
Because the parties agreed that HOLA continued to apply regardless of the
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 sale of the lender or the loan, an order that adopts Gerber erroneously jettisons
8 HOLA when the FSB merges with a national bank and would violate the
9 “modifications” clause in the deed of trust requiring both parties’ assent to the
10 change. “Modification is a change in the obligation by a modifying agreement
11 which requires mutual assent.” 1 Witkin, Summary of Cal. Law, Contracts, § 715
12 (8th ed. 1973), p. 600 (emphasis added); Wade v. Diamond A Cattle Co., 44 Cal.
13 App. 3d 453, 457 (1975).
14
The OTS instructs on this very point: “[L]oan terms should not change simply
15 because an originator entitled to federal preemption may sell or assign a loan to an
16 investor that is not entitled to federal preemption.” OTS Opinion Letter at p. 7 &
17 n. 18. See also Safeco Ins. Co. v Robert S., 26 Cal. 4th 758, 764 (2001) (“[W]e
18 cannot read into the policy what [a contracting party] has omitted. To do so would
19 violate the fundamental principle that in interpreting contracts …courts are not to
20 insert what has been omitted”). Failing to apply HOLA here would contradict the
21 parties’ intent and impermissibly rewrite the terms of the contract.
22
Text Cont’d From Previous Page]
23 [Footnote
Maudlin v. Pacific Decision Sciences Corp., 137 Cal. App. 4th 1001, 1009-1010
24 (2006) (contract rights of acquired entity are unchanged by merger); Progressive
Consumers Fed. Credit Union v. United States, 79 F.3d 1228, 1238 (1st Cir. 1996)
25 held: “[I]t is hornbook law that the assignee of a mortgage succeeds to all of the
assignor’s rights power and equities” (prior recorded mortgage assigned to plaintiff
26 defeated later-filed federal tax liens).
27 14
The Note and Deed of Trust are read together as one contract. Nevin v. Salk, 45
28 Cal.App.3d 331, 338 (1975).
93000/FR0814/00687524-1
-14-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 20 of 22 Page ID #:765
1
2
3.
CONCLUSION.
The amici urge this Court to find that the NBA does not preempt Plaintiffs’
3 first claim under California Civil Code § 2923.6. But in order to do so, this Court
4 must first accept the amici’s contention that the minority opinion in Gerber is
5 stronger authority than the numerous district court decisions before and after which
6 reach the opposite conclusion, finding that HOLA preemption analysis applies
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7 post-merger. The amici lack the authority for that leap.
8
The Gerber opinion did not mention, and presumably did not consider, the
9 1985 FHLBB Opinion Letter, the 2003 OTS Opinion Letter, and the parties’ intent
10 to continue HOLA’s application through the choice of law clause, the successors
11 clause and the modifications clause in the note and deed of trust. Nor was the
12 comprehensive Akopyan decision decided when the Gerber court issued its cursory
13 analysis of the scope of HOLA preemption. Williams, Castillo, Gorton, DeLeon,
14 and the vast majority of district court cases to review this issue, were all correctly
15 decided. Wells Fargo thus requests this Court to correctly find that HOLA
16 preempts plaintiff’s state law claims.
17
Respectfully submitted,
18 Dated: July 16, 2013
19
ANGLIN, FLEWELLING, RASMUSSEN,
CAMPBELL & TRYTTEN LLP
20
By:
/s/ Mark T. Flewelling
Mark T. Flewelling
Attorneys for Defendant
WELLS FARGO BANK, N.A.
21
22
23
24
25
26
27
28
93000/FR0814/00687524-1
-15-
CASE NO.: 8:13-cv-00360-DOC-MLGx
RESPONSE TO AMICUS BRIEF
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 21 of 22 Page ID #:766
1
CERTIFICATE OF SERVICE
2
I, the undersigned, declare that I am over the age of 18 and am not a party to
this action. I am employed in the City of Pasadena, California; my business
3 address is Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, 199 S. Los
4 Robles Avenue, Suite 600, Pasadena, California 91101-2459.
5
On the date below, I served a copy of the foregoing document entitled:
6
DEFENDANT WELLS FARGO’S RESPONSE TO THE
AMICUS CURIÆ BRIEF FILED BY THE “HOMEOWNER
BILL OF RIGHTS COLLABORATIVE,” ET AL.
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
8
9
on the interested parties in said case as follows:
Served Electronically Via the Court’s CM/ECF System:
10
11
Attorney for Plaintiffs:
12
Joseph R. Manning, Jr., Esq.
Law Offices of Joseph R. Manning, Jr.
4667 MacArthur Blvd., Suite 150
Newport Beach, California 92660
Tel: 949-361-3232
Fax: 866-843-8308
joe@manninglawoffice.com
13
14
15
16
Attorneys for Defendant
Regional Trustee Services
Corporation:
Robin Prema Wright, Esq.
Nicole K. Neff, Esq.
WRIGHT, FINLAY & ZAK, LLP
4665 MacArthur Court, Suite 280
Newport Beach, CA 9266
Tel: 949.477.5050
Email: rwright@wrightlegal.net
Email: nneff@wrightlegal.net
17
18
Counsel for Amici Curiae:
19
Ken Qian, Esq.
National Housing Law Project
703 Market St., Suite 2000
San Francisco, CA 94103
Tel: 415-546-7000 / Fax: 415-546-7007
kqian@nhlp.org
20
21
22
23
Served by Means Other Than Electronically
Via the Court’s CM/ECF System:
24
25
26
27
28
Counsel for Amici Curiæ:
Patrick M. Dunlevy, Esq.
Annette Kirkham, Esq.
Public Counsel Law Center
Katherine M. Lehe, Esq.
610 S. Ardmore Ave.
Law Foundation of Silicon Valley
Los Angeles, CA 90005
152 N. 3rd St., 3rd Floor
San Jose, CA 95112
93000/FR0814/00687524-1
-1-
CASE NO.:8:12-CV-00360 –DOC-MLGx
CERTIFICATE OF SERVICE
Case 8:13-cv-00360-DOC-MLG Document 31 Filed 07/16/13 Page 22 of 22 Page ID #:767
1
Elizabeth S. Letcher, Esq.
Housing and Economic Rights Advocates
P.O. Box 29435
Oakland, CA 94604
2
3
4
5
6
A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP
7
8

BY MAIL: I am readily familiar with the firm’s practice of collection and
processing correspondence by mailing. Under that same practice it would
be deposited with U.S. Postal Service on that same day with postage fully
prepaid at Pasadena, California in the ordinary course of business. I am
aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after
date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the United States of
9 America that the foregoing is true and correct. I declare that I am employed in
10 the office of a member of the Bar of this Court, at whose direction the service
was made. This declaration is executed in Pasadena, California on July 16, 2013.
11
/s/ Marianne Mantoen
Marianne Mantoen
12
(Type or Print Name)
(Signature of Declarant)
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
93000/FR0814/00687524-1
-2-
CASE NO.:8:12-CV-00360 –DOC-MLGx
CERTIFICATE OF SERVICE