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MEMORANDUM OF POINTS AND AUTHORITIES 

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McGLINCHEY STAFFORD 

Kevin S. Kim (SBN 275200) 

Brian A. Paino (SBN 251243) 

18201 Von Karman Avenue, Suite 350 

Irvine, California 92612 

Telephone: (949) 381-5900 

Facsimile: (949) 271-4040 

Email: kkim@mcglinchey.com 

 bpaino@mcglinchey.com 

Attorneys for Defendants 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., AS SUCCESSOR-IN- INTEREST TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR MASTR ADJUSTABLE RATE MORTGAGE TRUST 2005-2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-2 AND OCWEN LOAN 

SERVICING, LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JULIE A. JACKSON, an individual; and

KEVIN C. BUTLER and ANITA A. 

BUTLER, as Trustees of the 1990 Butler 

Family Trust, 

 Plaintiffs, 

 v. 

OCWEN LOAN SERVICING, LLC; 

WESTERN PROGRESSIVE, LLC; THE 

BANK OF NEW YORK MELLON TRUST 

COMPANY, N.A. f/k/a The Bank of New 

York Trust Company, N.A., as successor-ininterest to JPMorgan Chase Bank, N.A., as 

Trustee for MASTR Adjustable Rate 

Mortgages Trust 2005-2, Mortgage PassThrough Certificates, Series 2005-2; and, 

DOES 1-30, Inclusive, 

 Defendants. 

Case No.: 3:17-cv-00383-SK

Hon. Magistrate Judge Sallie Kim 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF 

MOTION TO DISMISS 

PLAINTIFFS’ FIRST AMENDED 

COMPLAINT BY DEFENDANTS 

THE BANK OF NEW YORK 

MELLON TRUST COMPANY, N.A., 

F/K/A THE BANK OF NEW YORK 

TRUST COMPANY, N.A., AS 

SUCCESSOR-IN-INTEREST TO 

JPMORGAN CHASE BANK, N.A., 

AS TRUSTEE FOR MASTR 

ADJUSTABLE RATE MORTGAGE 

TRUST 2005-2, MORTGAGE PASSTHROUGH CERTIFICATES, 

SERIES 2005-2 AND OCWEN LOAN 

SERVICING, LLC 

[Filed concurrently with Notice of Motion, Request for Judicial Notice, and [Proposed] Order] 

DATE: May 15, 2017 

TIME: 9:30 a.m. 

CRTM.: A 

State Court Case No. CIV1604583 

Action Filed: December 21, 2017 

Trial Date: N/A 

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Defendants The Bank of New York Mellon Trust Company, N.A., F/K/A The 

Bank of New York Trust Company, N.A., as Successor-In-Interest to JPMorgan 

Chase Bank, N.A., as Trustee For MASTR Adjustable Rate Mortgage Trust 2005-2, 

Mortgage Pass-Through Certificates, Series 2005-2 (“BONY”) and Ocwen Loan 

Servicing, LLC (“Ocwen”) (collectively, “Defendants”) hereby submit the following 

Memorandum of Point and Authorities in support of their Motion to Dismiss the First 

Amended Complaint (“FAC”) of Plaintiffs Julie A. Jackson (“Jackson”), Kevin C. 

Butler (“K. Butler”), and Anita A. Butler (“A. Butler”) (collectively, “Plaintiffs”). 

Statement of Issues to Be Decided 

Whether Plaintiffs state any claims upon which relief can be granted. 

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TABLE OF CONTENTS 

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TABLE OF CONTENTS 

I. INTRODUCTION ................................................................................................ 1

II. STATEMENT OF FACTS ................................................................................... 2

A. The First Lien ............................................................................................. 2

B. The Second Lien ........................................................................................ 2

C. The Third Lien ........................................................................................... 3

D. Plaintiffs Obtain Title to the Subject Property After Recordation of the NOD ..................................................................................................... 3

III. LEGAL PROCEEDINGS .................................................................................... 4

IV. APPLICABLE LEGAL STANDARDS ............................................................... 4

V. DISCUSSION ....................................................................................................... 5

A. Plaintiffs Fail to State a Claim for Violation of HBOR (First, Second, Third, and Fourth Claims) ........................................................... 5

1. Plaintiffs fail to state a claim for relief under HBOR because 

they are not borrowers on the Third Loan. ...................................... 5

2. Plaintiffs fail to state a claim for relief under HBOR because 

the Third Loan is not a first lien mortgage or deed of trust or 

owner-occupied. ............................................................................... 7

3. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2923.55 (Third Claim)............................................... 8

4. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2923.7 (Second Claim). ........................................... 10

5. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2924.9 (Fourth Claim). ............................................ 11

6. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2924.17 (First Claim). ............................................. 12

B. Plaintiffs Fail to State a Claim for Violation of the UCL (Sixth Claim) ....................................................................................................... 14

1. Plaintiffs lack standing under the UCL. ........................................ 15

2. Unlawful ........................................................................................ 15

3. Fraudulent ...................................................................................... 16

4. Unfair ............................................................................................. 16

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C. The FAC Should be Dismissed Without Leave to Amend ...................... 17

VI. CONCLUSION .................................................................................................. 18

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TABLE OF AUTHORITIES 

Federal Cases

Agbowo v. Nationstar Mortgage LLC, 2014 WL 1779367 (N.D. Cal. 2014) .......................................................................... 8 

Banuelos v. Nationstar Mortgage, LLC, 2014 WL 1246843 (N.D.Cal. 2014) ........................................................................... 8 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................... 4 

Bingham v. Ocwen Loan Servicing, LLC, 2014 WL 1494005 (N.D. Cal. 2014) .......................................................................... 5 

Cordero v. U.S. Bank, N.A., 2014 WL 4658757 (S.D. Cal. 2014) ........................................................................... 9 

Corral v. Select Portfolio Servicing, Inc., 2014 WL 3900023 (N.D. Cal. 2014) ...................................................................... 7, 8 

Coury v. Caliber Home Loans, Inc., 2016 WL 6962882 (N.D. Cal. 2016) .......................................................................... 5 

Doe v. United States, 58 F.3d 494 (9th Cir. 1995) ...................................................................................... 17 

Green v. Cent. Mortg. Co., 148 F. Supp. 3d 852 (N.D. Cal. 2015) ...................................................................... 13 

Hosseini v. Wells Fargo Bank, N.A., 2013 WL 4279632 (N.D. Cal. 2013) .......................................................................... 6 

HPG Corp. v. Aurora Loan Servs., LLC, 436 B.R. 569 (E.D. Cal. 2010) ................................................................................... 4 

In re Facebook PPC Advertising Litigation, 2010 WL 3341062 (N.D. Cal. 2010) ........................................................................ 16 

Johnson v. SunTrust Mortgage, Inc., 2014 WL 3845205 (C.D. Cal. 2014) .................................................................... 9, 10 

Kearns v. Ford Motor Co., 567 F. 3d 1120 (9th Cir. 2009) ................................................................................. 16 

Keledjian v. Nationstar Mortg. LLC, 2015 WL 12745841 (C.D. Cal. 2015) ........................................................................ 6 

Leadsinger, Inc. v BMG Music Publ’g, 512 F.3d 522 (9th Cir. 2008) ...................................................................................... 5 

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ...................................................................................... 4 

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Mullis v. United States Bank. Ct., 828 F.2d 1385 (9th Cir. 1987) .................................................................................... 5 

Salcido v. Vericrest Fin. & Summit Mgmt. Co. LLC, No. C 13-3450 SBA, 2013 WL 5946090 (N.D. Cal. 2013) ................................... 6, 7 

Swartz v. KPMG LLP, 476 F. 3d 756 (9th Cir. 2007) ................................................................................... 16 

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) .................................................................................. 13 

Winding v. Ndex W., LLC, 2011 WL 1897418 (E.D. Cal. 2011) ........................................................................... 7 

State Cases

Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544 (2007) ................................................................................. 15 

Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798 (2007) ................................................................................... 15 

Camacho v. Auto. Club of S. California, 142 Cal. App. 4th 1394 (2006) ................................................................................. 17 

Cel–Tech Comms., Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999) .............................................................................................. 15 

Daro v. Superior Court, 151 Cal. App. 4th 1079 (2007) ................................................................................. 15 

Haynes v. EMC Mortgage Corp., 205 Cal. App. 4th 329 (2012) ................................................................................... 14 

Henley v. Hotaling, 41 Cal. 22 (1871) ...................................................................................................... 14 

Krantz v. BT Visual Images, 89 Cal. App. 4th 164 (2001) ..................................................................................... 15 

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) .............................................................................................. 15 

McKell v. Washington Mutual, Inc., 142 Cal. App. 4th 1457 (2006) ................................................................................. 16 

Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917 (2003) ................................................................................... 16 

Seidell v. Tuxedo Land Co., 216 Cal. 165 (1932) .................................................................................................. 14 

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State Statutes

Cal. Bus. & Prof. Code § 17204 ................................................................................... 15 

Cal. Bus. & Prof. Code § 17200 ......................................................................... 2, 14, 16 

Cal. Civ. Code § 2936 ................................................................................................... 14 

Cal. Civ. Code § 2923.55 ................................................................................ 8, 9, 12, 13 

Cal. Civ. Code § 2923.7 ................................................................................................ 10 

Cal. Civ. Code § 2924(a)(6) ............................................................................................ 4 

Cal. Civ. Code § 2924.12 ............................................................................................ 5, 6 

Cal. Civ. Code § 2924.17 .................................................................................. 12, 13, 14 

Cal. Civ. Code § 2924.9 .......................................................................................... 11, 12 

Cal. Civ. Code § 2924.12 (a)(1) ..................................................................................... 5 

Cal. Civ. Code § 2924.15 (a) ............................................................................ 7, 8, 9, 13 

Cal. Civ. Code § 2920.5 (c)(1) ....................................................................................... 6 

Cal. Civ. Code § 2920.5(d) ............................................................................................. 7 

Cal. Civ. Code § 2923.55(a)(1) ...................................................................................... 8 

Cal. Civ. Code § 2923.7(a) ........................................................................................... 10 

Cal. Civ. Code § 1214 and 1107 ..................................................................................... 7 

Cal. Civ. Code § 2924.17(a) – (b) ................................................................................ 12 

Federal Rules

Fed. R. Civ. Proc. 12(b)(6) ............................................................................................. 4 

Fed. R. Civ. Proc. 9(b) .................................................................................................. 16 

Federal Rules of Civil Procedure ( ................................................................................. 4 

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I. INTRODUCTION 

This lawsuit arises from non-judicial foreclosure proceedings initiated on the 

Subject Property1

 as a result of a $552,000 mortgage loan that has been in default as 

of March 1, 2008. However, Plaintiffs Julie A. Jackson (“Jackson”), Kevin C. Butler 

(“K. Butler”), and Anita A. Butler (“A. Butler”) (collectively, “Plaintiffs”) are not the 

borrowers on the loan. They obtained title to the Subject Property from the borrowers 

subject to several liens but never obtained consent to assume the loan from 

Defendants The Bank of New York Mellon Trust Company, N.A., F/K/A The Bank of 

New York Trust Company, N.A., as Successor-In-Interest to JPMorgan Chase Bank, 

N.A., as Trustee For MASTR Adjustable Rate Mortgage Trust 2005-2, Mortgage 

Pass-Through Certificates, Series 2005-2 (“BONY”) and Ocwen Loan Servicing, LLC 

(“Ocwen”) (collectively, “Defendants”), the owner and servicer of the loan. 

Nevertheless, Plaintiffs attempt to stand in the shoes of the borrowers and advance 

claims against Defendants in an effort to enjoin foreclosure of the Subject Property. 

Defendants filed a Motion to Dismiss the initial Complaint on March 3, 2017. 

Rather than opposing the motion, Plaintiffs filed the First Amended Complaint 

(“FAC”) which essentially re-pleads in verbatim the same defective claims alleged in 

the initial Complaint. Plaintiffs simply have no legal or factual grounds for their 

claims. 

To start, Plaintiffs’ first, second, third, and fourth claims brought under 

California’s Homeowner Bill of Rights (“HBOR”) fail as a matter of law because 

Plaintiffs are not “borrowers’ as defined under the statute. Likewise, the loan at issue 

is not a covered loan under HBOR because it is not a first lien mortgage or deed of 

trust -- it’s the third lien in priority. 

 

1 The residential property located at 291 San Carlos Way, Novato, California 94945 is herein 

referenced as the “Subject Property.” 

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Likewise, Plaintiffs lack standing to bring a claim under California’s Unfair 

Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq., because they 

have not suffered an economic injury. Even if Plaintiffs had standing, Plaintiffs’ 

claim lacks merit because Plaintiffs fail to establish a viable antecedent claim, unfair 

business practices, or allege particularized facts to support a claim under the “fraud” 

prong of the statute. 

In sum, Plaintiffs’ claims are factually deficient and fail as a matter of law. 

Further, it is apparent that the deficiencies detailed herein are incurable by 

amendment given the fact that Plaintiffs reiterate the same defective allegations from 

their initial Complaint in their FAC. Defendants, therefore, respectfully request that 

the Court grant their Motion, with prejudice and without leave to amend. 

II. STATEMENT OF FACTS

A. The First Lien 

On or about March 12, 1997, Christian J. Mueller and Susan R. Mueller 

(“Borrowers”) obtained a mortgage loan (the “First Loan”) from Advanta National 

Bank USA in the original principal sum of $120,000, which was reflected in a 

promissory note secured by a deed of trust (the “First DOT or First Lien”) 

encumbering the Subject Property. See Request for Judicial Notice, (“RJN”), Exhibit 

1. The First DOT was recorded in the County Recorder’s Office, Marin County, 

California on March 28, 1997. Id. 

B. The Second Lien 

On November 14, 1997, Borrowers obtained another mortgage loan (the 

“Second Loan”) from Beneficial Management Corporation of America in the original 

principal sum of $35,000, which was reflected in a promissory note secured by a deed 

of trust (the “Second DOT or Second Lien”) encumbering the Subject Property. RJN, 

Ex. 2. The Second DOT was recorded in the County Recorder’s Office, Marin 

County, California on November 24, 1997. Id.

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C. The Third Lien 

On December 22, 2005, Borrowers obtained the mortgage loan (the “Third 

Loan”) at issue in this case from GreenPoint Mortgage Funding, Inc. (“GreenPoint”) 

in the original principal sum of $552,000, which was reflected in a promissory note 

(the “Note”) secured by a deed of trust (the “Third DOT or Third Lien”) encumbering 

the Subject Property. FAC, ¶ 13(a); RJN, Ex. 3. Mortgage Electronic Registration 

Systems, Inc. (“MERS”) was designated as the beneficiary under the Third DOT 

solely as nominee for the lender, and the lender’s successors and assigns. Id. The 

Third DOT was recorded in the County Recorder’s Office, Marin County, California 

on December 30, 2004. Id.

On April 4, 2016, a Grant Deed was recorded reflecting the transfer of the 

Subject Property from the Borrowers to the Butler Group, Inc. and Jackson P.I. 

Services, Inc., each transferee holding a 50% interest. RJN, Ex. 4. 

On June 13, 2016, non-judicial foreclosure proceedings commenced on the 

Third Lien with the recordation of a Notice of Default (“NOD”). RJN, Ex. 5. The 

NOD was based on Borrowers’ failure to make payments on their Third Loan past due 

since March 1, 2008. Id. 

D. Plaintiffs Obtain Title to the Subject Property After Recordation of 

the NOD 

Following the recordation of the NOD, on or about July 28, 2016, the Subject 

Property was transferred to Plaintiffs via a second Grant Deed. RJN, Ex. 6. 

On November 29, 2016, a Notice of Trustee’s Sale (“NOS”) was recorded 

noticing a trustee’s sale scheduled for January 4, 2017. RJN, Ex. 7. 

Plaintiffs do not allege that the Subject Property has been sold at a trustee’s 

sale. See generally, FAC. 

/// 

/// 

/// 

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III. LEGAL PROCEEDINGS

On December 21, 2016, Plaintiffs filed their Complaint in the Marin County 

Superior Court seeking enjoin non-judicial foreclosure. BONY removed the action to 

this Court on January 25, 2017. Dkt. No. 1. 

On March 3, 2017, Defendants filed a Motion to Dismiss the Complaint which 

was set to be heard on April 17, 2017. 

On March 16, 2017, Plaintiffs filed the instant FAC abandoning their claim for 

violation of California Civil Code Section 2924(a)(6), but otherwise reiterating the 

same claims and allegations in verbatim from their initial Complaint. 

IV. APPLICABLE LEGAL STANDARDS

Pursuant to Federal Rules of Civil Procedure (“Rule”) 8(a)(2), a plaintiff must 

plead “a short and plain statement of the claim showing that the pleader is entitled to 

relief[.] . . .” Mere conclusions and “formulaic recitations of the elements of a cause 

of action” are insufficient to state a claim for relief. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007). 

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a 

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. 

P. 12(b)(6). A complaint may be dismissed as a matter of law for failure to state a 

claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts 

under a cognizable legal theory. Twombly, 550 U.S. at 555-56. In order to survive a 

Rule 12(b)(6) pleadings challenge, a complaint must state a claim for relief that is 

“plausible on its face.” Id., at 570. 

In determining a motion to dismiss, the Court may consider documents outside 

the pleadings without converting the motion into a summary judgment. Among other 

things, the Court may consider documents that are “properly submitted as part of the 

complaint,” documents on which plaintiff’s complaint necessarily relies and whose 

authenticity is not contested, and matters of public record. See Lee v. City of Los 

Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001); see also HPG Corp. v. Aurora Loan 

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Servs., LLC, 436 B.R. 569, 576 (E.D. Cal. 2010) (taking judicial notice of “deeds of 

trust, the substitutions of trustee, the notice of default, and the trustee's deeds upon 

sale”). A court need not accept as true allegations in a complaint that contradict facts 

which may be judicially noticed by the court. Mullis v. United States Bank. Ct., 828 

F.2d 1385, 1388 (9th Cir. 1987). 

Where amendment would unduly prejudice the opposing party, cause undue 

delay, or be futile, or if the moving party has acted in bad faith, leave to amend should 

be denied. See Leadsinger, Inc. v BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 

2008). 

As provided in detail below, Plaintiffs fail to state any actionable claims against 

Defendants. 

V. DISCUSSION

A. Plaintiffs Fail to State a Claim for Violation of HBOR (First, Second, 

Third, and Fourth Claims) 

Plaintiffs allege four claims under the provisions of HBOR against Defendants. 

FAC, ¶¶ 20-44. As detailed below, Plaintiffs cannot state a claim under HBOR 

because they are not borrowers as defined under the statute and the Third Loan at 

issue in this lawsuit is not a covered loan under HBOR. 

1. Plaintiffs fail to state a claim for relief under HBOR because 

they are not borrowers on the Third Loan. 

California Civil Code Section 2924.12 provides the exclusive statutory scheme 

for addressing HBOR violations. However, Section 2924.12 only provides remedies 

for a borrower as defined under HBOR. See California Civil Code § 2924.12 (a)(1) 

(“If a trustee’s deed upon sale has not been recorded, a borrower may bring an action 

for injunctive relief ....”) (emphasis added); see also Coury v. Caliber Home Loans, 

Inc., 2016 WL 6962882, at *2 (N.D. Cal. Nov. 29, 2016) (“Section 2924.12 creates 

remedies for violations of HBOR.”); Bingham v. Ocwen Loan Servicing, LLC, 2014 

WL 1494005, at *4 (N.D. Cal. Apr. 16, 2014) (same). A “borrower” is defined as 

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“any natural person who is a mortgagor or trustor and who is potentially eligible for 

any federal, state, or proprietary foreclosure prevention alternative program offered 

by, or through, his or her mortgage servicer.” Civil Code § 2920.5 (c)(1) (emphasis 

added). 

Here, Plaintiffs are not entitled to any relief under Section 2924.12 because they 

are not borrowers as defined under HBOR. In particular, Plaintiffs are neither the 

mortgagors nor trustors under the Third DOT, and none of the Plaintiffs are named as 

a trustor or mortgagor in the Third DOT. RJN. Ex. 3; See e.g., Keledjian v. Nationstar 

Mortg. LLC, 2015 WL 12745841, at *4 (C.D. Cal. May 19, 2015) (“Because Mr. 

Keledjian was not a party to the loan at issue, he is not a borrower for purposes of the 

statute.”); Salcido v. Vericrest Fin. & Summit Mgmt. Co. LLC, No. C 13-3450 SBA, 

2013 WL 5946090, at *3 (N.D. Cal. Nov. 5, 2013) (“[T]he Deed of Trust clearly 

states that Vasquez, not Plaintiff, is the borrower. Since Plaintiff is not—and does not 

claim to be—the borrower, he is not entitled to the protections of section 2923.5.”); 

Hosseini v. Wells Fargo Bank, N.A., 2013 WL 4279632, at *5 (N.D. Cal. Aug. 9, 

2013) (dismissing HBOR claim as to one of the plaintiffs because judiciallynoticeable deed of trust did not name the plaintiff as trustor-borrower). Moreover, 

Plaintiffs’ title to the Subject Property is inapposite, and does not render Plaintiffs 

“borrowers” for purposes of HBOR. Salcido v. Vericrest Fin. & Summit Mgmt. Co. 

LLC, No. C 13-3450 SBA, 2013 WL 5946090, at *3 (N.D. Cal. Nov. 5, 2013) 

(determining plaintiff is not a borrower because, even though he obtained interest in 

the property, he was not named as a trustor under the applicable deed of trust). 

Likewise, Plaintiffs’ allegations that they obtained a “‘Power of Attorney” executed 

by Borrowers merely suggests that they were agents on behalf of the Borrowers, not a 

“borrower” as defined under HBOR. FAC, ¶ 14 (n). 

Pursuant to the Third DOT, Plaintiffs were required to obtain consent from 

BONY to assume the Loan. RJN, Ex. 3, ¶13 (“[A]ny Successor in Interest of 

Borrower who assumes Borrower’s obligations under this Security Instrument in 

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writing, and is approved by Lender, shall obtain all of Borrower’s rights and benefits 

under this Security Instrument.”) (emphasis added). Here, Plaintiffs do not (and 

cannot) allege that they obtained consent from BONY to assume the Third Loan from 

the Borrowers. 

In sum, Plaintiffs cannot avail themselves of the provisions of HBOR because 

they are not borrowers on the Third Loan. Plaintiffs first, second, third, and fourth, 

claims under HBOR fail as a matter of law and should be dismissed without leave to 

amend. 

2. Plaintiffs fail to state a claim for relief under HBOR because 

the Third Loan is not a first lien mortgage or deed of trust or 

owner-occupied. 

Plaintiffs also cannot advance a claim under HBOR because the Third Loan is 

not a loan covered under HBOR. 

Pursuant to Civil Code Section 2924.15 (a), the enumerated provisions of 

HBOR, including Sections 2923.55, 2923.7, and 2924.9, “apply only to first lien 

mortgages or deeds of trust that are secured by owner-occupied residential real 

property containing no more than four dwelling units.” Civil Code § 2924.15 (a) 

(emphasis added). “Owner-occupied” is defined as property that is the principal 

residence of the borrower. Id. ; see also Corral v. Select Portfolio Servicing, Inc., 

2014 WL 3900023, at *5 (N.D. Cal., Aug. 7, 2014) (“Section 2924.15 of the HBOR 

limits its application to owner-occupied homes, meaning that the home is the principal 

residence of the borrower”). A first lien mortgage or deed of trust is defined as the 

“most senior mortgage or deed of trust on the property that is subject of the notice of 

default or notice of sale.” Civil Code § 2920.5(d) (emphasis added). Under 

California's “Race Notice” statutes, lien priority is determined by date of recording. 

Civil Code §§ 1214 and 1107; Winding v. Ndex W., LLC, 2011 WL 1897418, at *3 

(E.D. Cal. May 18, 2011), aff'd, 543 F. App'x 683 (9th Cir. 2013). 

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Here, HBOR is inapplicable to the Third Loan because the Third DOT is not the 

first lien deed of trust on the Subject Property as required under Section 2924.15(a). 

In particular, judicially-noticeable records confirm two other outstanding liens, i.e., 

the First and Second DOT, that were recorded in connection with the Subject Property 

prior to the Third DOT, and never released. RJN, Exs. 1, 2. Indeed, nowhere in the 

FAC do Plaintiffs allege that the Third Lien at issue is the most senior debt and 

security with respect to the Subject Property because it is not. 

Likewise, Plaintiffs cannot plead that the Subject Property is “owner-occupied”, 

i.e., “the principal residence of the borrower,” because they are not the borrowers on 

the Third Loan. See e.g., Corral v. Select Portfolio Servicing, Inc., 2014 WL 

3900023, at *4-5 (N.D. Cal., Aug. 7, 2014) (dismissing HBOR claim due to plaintiffs' 

failure to plead that the property is their principal residence); Agbowo v. Nationstar 

Mortgage LLC 2014 WL 1779367, at *5 (N.D. Cal., May 5, 2014) (dismissing HBOR 

claim because plaintiffs failed to allege subject property was owner-occupied); 

Banuelos v. Nationstar Mortgage, LLC 2014 WL 1246843, at *3 (N.D.Cal. Mar. 25, 

2014) (same). 

Accordingly, Plaintiffs’ HBOR claims fail as a matter of law and should be 

dismissed without leave to amend. 

3. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2923.55 (Third Claim). 

Plaintiffs alleges that Defendants violated Civil Code § 2923.55 by failing to 

contact them to explore foreclosure alternatives prior to recording the NOD. FAC, ¶¶ 

33-39. 

Civil Code § 2923.55(a)(1) prohibits a mortgagee, trustee, beneficiary or 

authorized agent from filing a notice of default pursuant to Section 2924 until 30 days 

after initial contact to assess the borrower's financial situation and explore alternative 

options or 30 days after satisfying the due diligence requirements as described in 

subdivision (e). “There is no requirement Plaintiff be satisfied with the results of the 

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mortgage servicer's contact, as [Section 2923.55] merely ‘contemplates contact and 

some analysis of the borrower's financial situation.’” Cordero v. U.S. Bank, N.A., 

2014 WL 4658757, at *3 (S.D. Cal. Sept. 17, 2014); Johnson v. SunTrust Mortgage, 

Inc., 2014 WL 3845205, at *4 (C.D. Cal. Aug. 4, 2014) (same). Plaintiffs fail to state 

a claim for violation of Section 2923.55. 

First, Section 2923.55 only applies to a “mortgage servicer.” As Plaintiffs 

admit, BONY is not the mortgage servicer, and therefore, BONY was not required to 

comply with Section 2923.55. FAC, ¶ 14(i) (“Plaintiffs learned [] that Ocwen is 

servicing the Subject Loan.”). Plaintiffs’ Section 2923.55 claim fails as to BONY. 

Second, as discussed above, Plaintiffs are not borrowers on the Third Loan as 

defined under HBOR and the Third Loan is not a covered loan under HBOR, and 

therefore, Ocwen was not required to contact (or attempt to contact) Plaintiffs in 

compliance with Section 2923.55. Indeed, the declaration attached to the NOD 

expressly provides that “[t]he mortgage servicer was not required to comply with 

California Civil Code § 2923.55 because the above-referenced loan is not secured by a 

first lien mortgage or deed of trust that secures a loan on “owner-occupied” residential 

real property as defined by California Civil Code § 2924.15(a).” RJN, Ex. 5. 

Third, Plaintiffs did not obtain title to the Subject Property until after the NOD 

was recorded. In particular, the NOD was recorded on June 13, 2016, and Plaintiffs 

obtained title to the Subject Property via Grant Deed on July 28, 2016. RJN, Exs. 5, 6. 

Accordingly, Plaintiffs cannot even argue that they were entitled to the benefits of 

Section 2923.55 as the record-owner of the Subject Property. 

In sum, Plaintiffs fail to state a claim for relief under Section 2923.55. As the 

legal defects are not subject to cure by amendment, Plaintiffs’ Section 2923.55 claim 

should be dismissed without leave to amend. 

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4. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2923.7 (Second Claim). 

Plaintiffs contend that Defendants failed to appoint them a Single Point of 

Contact (“SPOC”) in violation of Section 2923.7. FAC, ¶¶ 27-32. 

 Section 2923.7 provides that “[u]pon request from a borrower who requests a 

foreclosure prevention alternative, the mortgage servicer shall promptly establish a single 

point of contact and provide to the borrower one or more direct means of communication 

with the single point of contact.” Civil Code § 2923.7(a) (emphasis added). Plaintiffs 

fail to allege a claim under Section 2923.7. 

First, Section 2923.7 only applies to a “mortgage servicer.” As Plaintiffs 

admit, BONY is not the mortgage servicer, and therefore, BONY was not required to 

comply with Section 2923.7. FAC, ¶ 14(i) (“Plaintiffs learned [] that Ocwen is 

servicing the Subject Loan.”). Plaintiffs’ Section 2923.7 claim fails as to BONY. 

Second, as discussed above, Plaintiffs are not borrowers on the Third Loan as 

defined under HBOR and the Third Loan is not a covered loan under HBOR. As 

such, Ocwen was not required to appoint Plaintiffs a SPOC in compliance with 

Section 2923.7. 

Third, Plaintiffs’ own exhibit attached to the FAC belie their conclusory 

assertions that Ocwen failed to communicate with them concerning the Third Loan. 

FAC, Ex. V. In particular, Ocwen properly responded to Plaintiffs’ communications 

concerning the Third Loan, and informed Plaintiffs that Ocwen’s records had been 

updated to reflect that Plaintiffs were “authorized to receive and discuss information 

regarding the loan.” Id. 

In sum, Plaintiffs simply fail to state a claim for relief under Section 2923.7. 

As the legal defects are not subject to cure by amendment, Plaintiffs’ Section 2923.7 

claim should be dismissed without leave to amend. 

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5. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2924.9 (Fourth Claim). 

Plaintiffs contend that Defendants violated Section 2924.9 by failing to send 

them written communication within five days of recording the NOD to inform them 

that they may be evaluated for foreclosure prevention alternatives. FAC, ¶¶ 40-44. 

Section 2924.9 provides as follows: 

Unless a borrower has previously exhausted the first lien loan 

modification process offered by, or through, his or her mortgage servicer 

described in Section 2923.6, within five business days after recording a 

notice of default pursuant to Section 2924, a mortgage servicer that 

offers one or more foreclosure prevention alternatives shall send a written 

communication to the borrower that includes all of the following 

information: 

(1) That the borrower may be evaluated for a foreclosure 

prevention alternative or, if applicable, foreclosure prevention 

alternatives. 

(2) Whether an application is required to be submitted by the 

borrower in order to be considered for a foreclosure prevention 

alternative. 

(3) The means and process by which a borrower may obtain an 

application for a foreclosure prevention alternative. 

Civil Code § 2924.9 (emphasis added). 

Here, Plaintiffs fail to state a claim for violation of Section 2924.9. 

First, Section 2924.9 only applies to a “mortgage servicer.” As Plaintiffs 

admit, BONY is not the mortgage servicer, and therefore, BONY was not required to 

comply with Section 2924.9. FAC, ¶ 14(i) (“Plaintiffs learned [] that Ocwen is 

servicing the Subject Loan.”). Plaintiffs’ Section 2924.9 claim fails as to BONY. 

Second, as discussed above, Plaintiffs are not borrowers on the Third Loan as 

defined under HBOR and the Third Loan is not a covered loan under HBOR. As 

such, Ocwen was not required to send any written communication in compliance with 

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Section 2924.9 nor were Plaintiffs eligible or entitled to apply for any foreclosure 

prevention alternatives as non-borrowers. 

Third, Plaintiffs did not obtain title to the Subject Property until more than a 

month after the NOD was recorded. In particular, the NOD was recorded on June 13, 

2016, and Plaintiffs obtained title to the Subject Property via Grant Deed on July 28, 

2016. RJN, Exs. 5, 6. As such, even if HBOR was applicable (which it is not), Ocwen 

was not required to send a correspondence outlining foreclosure preventive options to 

Plaintiffs, a stranger to the Third Loan and the Subject Property, within five days of 

the recordation of the NOD. 

Accordingly, Plaintiffs’ Section 2924.9 claim fails as a matter of law and 

should be dismissed without leave to amend. 

6. Plaintiffs fail to state a claim for violation of California Civil 

Code Section 2924.17 (First Claim). 

Plaintiffs contend that Defendants violated Section 2924.17(a) – (b) by 

recording the NOD and NOS which Plaintiffs contend were “fraudulent.” FAC, ¶¶ 

20-26. 

Section 2924.17 provides as follows: 

(a) A declaration recorded pursuant to Section 2923.5 or, until 

January 1, 2018, pursuant to Section 2923.55, a notice of default, notice 

of sale, assignment of a deed of trust, or substitution of trustee recorded 

by or on behalf of a mortgage servicer in connection with a foreclosure 

subject to the requirements of Section 2924, or a declaration or affidavit 

filed in any court relative to a foreclosure proceeding shall be accurate 

and complete and supported by competent and reliable evidence. 

(b) Before recording or filing any of the documents described in 

subdivision (a), a mortgage servicer shall ensure that it has reviewed 

competent and reliable evidence to substantiate the borrower's default 

and the right to foreclose, including the borrower's loan status and loan 

information. 

Civil Code § 2924.17. 

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Because Plaintiffs’ Section 2923.17 claim is based on fraud, Plaintiffs must 

meet the heightened Rule 9(b) pleading standard and Plaintiffs’ claim must be pled 

with particularity. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 

2003).

Here, Plaintiffs fail to provide any facts, let alone, particularized facts, that 

support their claim that Defendants recorded a fraudulent NOD, and NOS. 

First, Section 2924.17 only applies to a “mortgage servicer.” As Plaintiffs 

admit, BONY is not the mortgage servicer, and therefore, BONY was not required to 

comply with Section 2924.17. FAC, ¶ 14(i) (“Plaintiffs learned [] that Ocwen is 

servicing the Subject Loan.”); Green v. Cent. Mortg. Co., 148 F. Supp. 3d 852, 875 

(N.D. Cal. 2015) (dismissing Section 2924.17 claim as to beneficiary under the deed 

of trust because section 2924.17 applies only to mortgage servicers and does not apply 

to beneficiaries under deeds of trust). Plaintiffs’ Section 2924.17 claim fails as to 

BONY. 

Second, Plaintiffs are not the borrowers and did not even have title to the 

Subject Property when the NOD was recorded. As discussed supra, the NOD was 

recorded on June 13, 2016, and Plaintiffs obtained title to the Subject Property via 

Grant Deed on July 28, 2016. RJN, Exs. 5 and 6. Likewise, the public records 

confirm two other liens in higher priority, i.e., the First and the Second Lien, recorded 

in connection with the Subject Property. Accordingly, the declaration attached to the 

NOD that “[t]he mortgage servicer was not required to comply with California Civil 

Code § 2923.55 because the above-referenced loan is not secured by a first lien 

mortgage or deed of trust that secures a loan on ‘owner-occupied’ residential real 

property as defined by California Civil Code § 2924.15(a)” was entirely accurate and 

complete. 

Third, Plaintiffs fail to offer relevant facts that suggest BONY is not the 

current owner and beneficiary of the Third Loan. Plaintiffs’ sole factual allegation is 

a recorded 2009 assignment of the Third DOT to U.S. Bank. However, Plaintiffs’ 

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focus on the transfer of the deed of trust is misguided because a recorded assignment 

of a deed of trust is legally irrelevant for purposes of determining the beneficiary 

under the applicable loan. Under California law, the transfer of a promissory note 

carries with it the security without any formal assignment. See Henley v. Hotaling, 41 

Cal. 22, 28 (1871); Seidell v. Tuxedo Land Co., 216 Cal. 165, 170 (1932); Cal. Civ. 

Code § 2936. Put simply, if the applicable note was transferred to BONY, so, too, 

was the Third DOT, regardless of the purported defects in the assignment of the 

security instrument, i.e., the Third DOT. By virtue of the sale of the applicable note to 

BONY, BONY is necessarily entitled to enforce the Third DOT as a matter of law, 

without any formal assignment of the instrument. See Haynes v. EMC Mortgage 

Corp., 205 Cal. App. 4th 329, 336 (2012) (“[W]here a deed of trust is involved, the 

trustee may initiate foreclosure irrespective of whether an assignment of the beneficial 

interest is recorded.”). Here, Plaintiffs do not allege that the applicable note was not 

transferred to BONY. 

Accordingly, Plaintiffs’ Section 2924.17 fails as a matter of law and should be 

dismissed without leave to amend. 

B. Plaintiffs Fail to State a Claim for Violation of the UCL (Sixth 

Claim) 

Plaintiffs’ UCL claim is derivative of and predicated on their defective HBOR 

claims. In particular, Plaintiffs contend Defendants engaged in “deceptive business 

practices” by: (i) “advising borrowers that notices of default and notices of trustee[‘s] 

sales were sent validly when they were sent in violation of the Civil Code and 

HBOR”; and (ii) failing to “provide communication, requested documents, return[] 

telephone calls or contact information needed to apply for loss mitigation to borrowers 

of first lien mortgagee.” FAC, ¶¶ 45-52. 

The UCL prohibits any unlawful, unfair or fraudulent business act or practice. 

See Cal. Bus. & Prof. Code § 17200. When analyzing a UCL claim, courts consider 

each of the three prongs to determine whether a practice is unlawful, unfair, or 

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fraudulent. See Cel–Tech Comms., Inc. v. Los Angeles Cellular Telephone Co., 20 

Cal. 4th 163, 180 (1999). Under a UCL claim, damages cannot be recovered, and a 

plaintiff is generally limited to injunctive relief and restitution. See Buckland v. 

Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 812 (2007). 

1. Plaintiffs lack standing under the UCL. 

A claim for unfair competition under the UCL may be brought “by a person 

who has suffered injury in fact and has lost money or property as a result of the unfair 

competition.” Cal. Bus. & Prof. Code § 17204. To establish standing under the UCL, 

a plaintiff must: (1) establish a loss or deprivation of money or property sufficient to 

qualify as injury in fact (i.e., economic injury); and (2) show that that economic injury 

was the result of (i.e., caused by) the unfair business practice that is the gravamen of 

the claim. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 337 (2011). There is 

no causation “when a complaining party would suffer the same harm whether or not a 

defendant complied with the law.” Daro v. Superior Court, 151 Cal. App. 4th 1079, 

1099 (2007). 

As an initial matter, Plaintiffs lack standing to assert a claim under the UCL 

because they have not suffered any economic injury caused by the alleged unfair 

competition. To start, as Plaintiffs admit, the Subject Property has not been 

foreclosed, hence, they have not lost any property. Moreover, Plaintiffs do not allege 

that they have made any payments to Defendants in connection with the Third Loan 

that are subject to restitution. As such, Plaintiffs cannot demonstrate any loss of 

money or property caused by Defendants to confer standing under the UCL. 

2. Unlawful 

A violation of another law is a predicate for stating a cause of action under the 

UCL’s “unlawful” prong. See Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 

4th 1544, 1554 (2007). A claim for violation of the UCL stands or falls depending on 

the fate of antecedent substantive causes of action. Krantz v. BT Visual Images, 89 

Cal. App. 4th 164, 178 (2001). As discussed herein, Plaintiffs have failed to establish 

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that Defendants engaged in any unlawful conduct. Absent a viable underlying claim, 

Plaintiffs cannot state a separate claim under the unlawful prong of the UCL. 

3. Fraudulent

A business practice is “fraudulent” within the meaning of section 17200 if it is 

“likely to deceive the public.” McKell v. Washington Mutual, Inc., 142 Cal. App. 4th 

1457, 1471 (2006). Claims under the fraudulent prong of the UCL must be pled with 

particularity under Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor 

Co., 567 F. 3d 1120, 1127 (9th Cir. 2009). Therefore, a plaintiff “must include a 

description of the ‘time, place, and specific content of the false representations as well 

as the parties to the misrepresentations.’” In re Facebook PPC Advertising Litigation, 

2010 WL 3341062, at *9 (N.D. Cal. 2010) (quoting Swartz v. KPMG LLP, 476 F. 3d 

756, 764 (9th Cir. 2007)). 

Plaintiffs’ allegations come nowhere close to meeting the stringent 

requirements of Rule 9(b) pleading standards. The FAC consists of a series of 

conclusory allegations without identifying any specific misconduct that has directly 

affected Plaintiffs. Plaintiffs do not plead any factual allegations whatsoever to 

suggest that they have been deceived, let alone, allegations establishing that 

Defendants’ conduct deceived the public at large. In particular, Plaintiffs fail to allege 

facts (e.g., who, what, where, how, and why) surrounding the purported “deceptive 

business practices” alleged in the FAC. Accordingly, the FAC fails to state a claim for 

relief under the “fraudulent” prong of the UCL. 

4. Unfair 

“Unfair” conduct has been defined as conduct that “offends an established 

public policy or...is immoral, unethical, oppressive, unscrupulous or substantially 

injurious to consumers.” Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 939 

(2003). A UCL claim based on public policy must be “tethered” to a specific 

constitutional, statutory or regulatory provision to provide an objective basis for 

determining whether the alleged conduct is unfair. Id. at 940. To succeed on an 

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“unfair claim,” the injury must be outweighed by the benefits to the consumers and 

must be one that consumers could not reasonably avoid. See Camacho v. Auto. Club of 

S. California, 142 Cal. App. 4th 1394, 1403 (2006). 

Plaintiffs do not allege any facts that show Defendants engaged in unfair 

business practices. Plaintiffs contend that the NOD and NOS were improperly 

recorded in violation of HBOR. FAC, ¶ 48. However, as discussed supra, Plaintiffs 

are not borrowers on the Third Loan as defined under HBOR and the Third Loan is 

not a covered Loan under HBOR. Plaintiffs also complain that Defendants failed to 

provide them information “needed to apply for loss mitigation to borrowers of first 

lien mortgagees.” FAC, ¶ 48. However, Plaintiffs are not borrowers on the Third 

Loan, nor is the Third Lien a first lien mortgage. In turn, Plaintiffs were not entitled 

to receive any information regarding the Third Loan absent proper authorization from 

the Borrowers. As Plaintiffs admit in their FAC, once Ocwen received the proper 

authorization forms, Ocwen duly updated its records to reflect that Plaintiffs were 

“authorized to receive and discuss information regarding the loan.” FAC, Ex. V. 

Plaintiffs fail to establish a violation of the “unfair” prong of the UCL. 

In sum, Plaintiffs fail to allege any facts supporting a claim under any of the 

three prongs under the UCL. Accordingly, Plaintiffs’ claim should be dismissed 

without leave to amend. 

C. The FAC Should be Dismissed Without Leave to Amend

Courts have discretion to deny leave to amend if it determines that the pleading 

could not possibly be cured by the allegation of other facts. Doe v. United States, 58 

F.3d 494, 497 (9th Cir. 1995). 

Here, Plaintiffs have already amended their complaint without curing any of the 

fatal defects that undermine their claims. Further amendment would be futile as 

Plaintiffs’ claims arise under the provisions of HBOR which are inapplicable to 

Plaintiffs and the Third Loan as a matter of law. In particular, Plaintiffs have no 

standing to assert any claims under HBOR because they are not “borrowers” as 

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defined under the statute and the Third Loan is not a covered loan under HBOR. 

Accordingly, Plaintiffs’ legally defective claims will not and cannot be cured by a 

second amendment. Defendants respectfully request that the Court dismiss the FAC 

against Defendants, without leave to amend. 

VI. CONCLUSION

For the reasons set forth herein, Plaintiffs’ FAC should be dismissed. As 

amendment would be futile, the dismissal should be without leave to amend. 

DATED: March 29, 2017 McGLINCHEY STAFFORD 

By: /s/ Kevin S. Kim KEVIN S. KIM 

BRIAN A. PAINO 

Attorneys for Defendants 

THE BANK OF NEW YORK MELLON 

TRUST COMPANY, N.A., F/K/A THE 

BANK OF NEW YORK TRUST 

COMPANY, N.A., AS SUCCESSOR-ININTEREST TO JPMORGAN CHASE 

BANK, N.A., AS TRUSTEE FOR MASTR 

ADJUSTABLE RATE MORTGAGE 

TRUST 2005-2, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 

2005-2 AND OCWEN LOAN SERVICING, 

LLC 

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PROOF OF SERVICE 

STATE OF CALIFORNIA ) 

 ) ss. 

COUNTY OF ORANGE ) 

I, Stephanie Elizondo, declare: 

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 18201 Von Karman Ave., 

Suite 350, Irvine, California 92612. 

On March 29, 2017, I served the document(s) described as MEMORANDUM OF 

POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 

PLAINTIFFS’ FIRST AMENDED COMPLAINT BY DEFENDANTS THE 

BANK OF NEW YORK MELLON TRUST COMPANY, N.A., F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., AS SUCCESSOR-IN- INTEREST TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR MASTR ADJUSTABLE RATE MORTGAGE TRUST 2005-2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-2 AND OCWEN LOAN 

SERVICING, LLC as follows:

BY MAIL: As follows: 

FEDERAL – I deposited such envelope in the U.S. mail at Irvine, 

California, with postage thereon fully prepaid, 

BY CM/ECF NOTICE OF ELECTRONIC FILING: I caused said

document(s) to be served by means of this Court’s Electronic transmission of 

the Notice of Electronic Filing through the Court’s transmission facilities, to the 

parties and/or counsel who are registered CM/ECF users set forth in the service 

list obtained from this Court. Pursuant to Electronic Filing Court Order, I 

hereby certify that the above documents(s) was uploaded to the website and will 

be posted on the website by the close of the next business day and the webmaster will give e-mail notification to all parties. 

FEDERAL: I declare that I employed in the office of a member of the State 

Bar of this Court at whose direction the service was made. 

Executed on March 29, 2017, at Irvine, California. 

Stephanie Elizondo

 Stephanie Elizondo 

Case 3:17-cv-00383-SK Document 18-1 Filed 03/29/17 Page 26 of 27
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SERVICE LIST 

USDC, Northern District Case No. 3:17-cv-00383-SK JULIE A. JACKSON, et al. v. OCWEN LOAN SERVICING, LLC, et al. File # 104938.1981

 

Adela Z. Ulloa, Esq. Law Offices of Adela Z. Ulloa, APC 

8560 W. Sunset Blvd., Suite 500 

West Hollywood, CA 90069 

Attorney for Plaintiffs JULIE A. 

JACKSON; and KEVIN C. BUTLER 

and ANITA A. BUTLER, as Trustees 

of the 1190 Butler Family Trust

Tel: (424) 274-4620 

Fax: (424) 270-1680 

Email: adela@azulegal.com 

Case 3:17-cv-00383-SK Document 18-1 Filed 03/29/17 Page 27 of 27