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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

Kim R. Lepore, Esq. (AZ Bar #019130) 

klepore@zbslaw.com

Joseph J. Tirello, Esq. (AZ Bar #033371) 

jtirello@zbslaw.com

ZIEVE, BRODNAX & STEELE, LLP 

3550 North Central Avenue, Suite 625 

Phoenix, AZ 85012 

Phone: (602) 282-6188 

Attorneys for Defendants Bayview Loan Servicing, LLC and The Bank Of New York 

Mellon fka The Bank Of New York, As Trustee For The Certificateholders Of The 

CWALT, Inc., Alternative Loan Trust 2007-17CB Mortgage Pass-Through Certificates, 

Series 2007-17CB 

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 

Ronald Wolfson, 

Plaintiff, 

vs. 

Bayview Loan Servicing, LLC and The 

Bank Of New York Mellon fka The Bank 

Of New York, As Trustee For The 

Certificateholders Of The CWALT, Inc., 

Alternative Loan Trust 2007-17CB 

Mortgage Pass-Through Certificates, 

Series 2007-17CB, 

Defendants. 

Case No. CV-17-8258-PCT-DWL 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT OR, IN THE 

ALTERNATIVE, PARTIAL 

SUMMARY JUDGMENT

Defendants Bayview Loan Servicing, LLC (“Bayview”) and The Bank Of New York 

Mellon fka The Bank Of New York, As Trustee For The Certificateholders Of The CWALT, 

Inc., Alternative Loan Trust 2007-17CB Mortgage Pass-Through Certificates, Series 2007-

17CB (“BONYM”) (collectively, “Defendants”), respectfully request that the Court enter 

summary judgment in favor of Defendants. There is no genuine issue as to any material fact 

associated with the counts in Plaintiff’s First Amended Complaint (“Complaint”). 

Defendants are, therefore, entitled to entry of judgment as a matter of law. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

This motion is supported by the following Memorandum of Points and Authorities, the 

exhibits attached hereto, and all of the pleadings on record, all of which are incorporated 

herein by reference. 

MEMORANDUM OF POINTS AND AUTHORITIES 

INTRODUCTION 

This action arises out of foreclosure proceedings concerning Plaintiff’s personal 

residence located at 1716 Tatum Place, Prescott, AZ 86301, and legally described as 

LOT 394, OF CLIFF ROSE UNIT 6, ACCORDING TO THE PLAT OF 

RECORD IN THE OFFICE OF THE COUNTY OF RECORDER OF 

YAVAPAI COUNTY, ARIZONA IN BOOK 44 OF MAPS, PAGE 6 

(the “Subject Property”). Plaintiff is determined to improperly and without any legal basis, 

stall and delay this foreclosure despite not paying on his loan for almost 9 years. First, he 

filed for Chapter 7 Bankruptcy protection. Then, he filed a state court action wherein he 

challenged Defendant BONYM’s right to foreclose. Plaintiff lost that challenge at the state 

court level and he appealed to the Arizona Court of Appeals, who affirmed the dismissal of 

his Complaint. In doing so, the Court of Appeals specifically stated that Defendant BONYM 

is owed the outstanding balance under the promissory note and Deed of Trust at issue in this 

case as a result of Plaintiff’s default. (Ex. 3 at ¶11.) The Court of Appeals also addressed 

Plaintiff’s claims under Arizona Revised Statutes (“ARS”) section 33-420, and held that the 

Assignment from MERS was not void and did not contain any material misrepresentations. 

(Ex. 3 at ¶¶13-15.) 

In this action, Plaintiff is again challenging Defendant BONYM’s right to foreclose 

despite the appellate court decision. Defendants are entitled to summary judgment because 

most of Plaintiff’s claims are barred by the doctrines of claim preclusion and res judicata. 

Additionally, the remaining claims fail because Plaintiff has not demonstrated a genuine 

issue of material facts and Defendants are entitled to judgment as a matter of law. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

STATEMENT OF FACTS 

 On or about May 11, 2007, Plaintiff executed and delivered to non-party Quicken 

Loans Inc., (“Quicken”), a promissory note in the amount of $272,000.00 (the “Note”). (Ex. 

1 at ¶6, Ex. A; Doc. 33 at ¶11.) The Note is endorsed in blank and BONY is the current 

holder of the Note. (Ex. 1 at ¶7.) To secure the indebtedness under the Note, Plaintiff 

executed and delivered to Mortgage Electronic Registration Systems, Inc. (“MERS”), as 

nominee for Quicken, a Deed of Trust (the “Deed of Trust”). The Deed of Trust was 

recorded on May 21, 2007 as instrument number 4138770, in book 4508, page 240, in the 

Official Records of Yavapai County and encumbers the Subject Property.1 (Ex. 1 at ¶8, Ex. 

B.) The Note and Deed of Trust are collectively referred to herein as the “Loan.” 

 Plaintiff made payments on the Loan through May 1, 2010. (Ex. 1 at ¶15, Ex. F.) On 

or about June 1, 2010, Plaintiff defaulted under the Note and Deed of Trust by failing to pay 

his monthly mortgage payment. (Ex. 1 at ¶9; Doc. 33 at ¶18.) 

 On November 18, 2010, the Note and Deed of Trust were assigned to BONYM. The 

Assignment of Deed of Trust was recorded on November 19, 2010, as instrument number 

2010-4428747 in book 4778, page 56 in the Official Records of Yavapai County (the 

“Assignment”). (Ex. 1 at ¶10, Ex. C.) 

 The servicing rights of the Loan were transferred to Bayview effective October 16, 

2012. (Ex. 1 at ¶11.) 

On or about May 26, 2017, Bayview, as BONYM’s loan servicer and attorney in fact, 

appointed Joseph J. Tirello, Jr., (“Tirello”) as the new trustee under the Deed of Trust and 

provided Tirello with written instructions that the loan was in default and that Bayview 

intended to foreclose. (Ex. 1 at ¶12.) 

 

1 Defendants request that this Court take judicial notice of all exhibits referenced herein 

that are documents recorded on title in the Official Records of Yavapai County. See, 

Jacobsen v. HSBC Bank USA, N.A., 713 Fed. App'x 679, 680 (9th Cir. 2018) (“The 

district court did not abuse its discretion by taking judicial notice of the title documents.”)

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

The Substitution of Trustee, officially substituting Tirello as the new trustee under the 

Deed of Trust, was recorded on July 3, 2017, as instrument number 2017-0033812. (Ex. 1 at 

¶13, Ex. D.) On the same date, Tirello, as the substitute trustee, caused to be recorded a 

Notice of Trustee’s Sale as instrument number 2017-0833813 in the Official Records of 

Yavapai County. (Ex. 1 at ¶14, Ex. E.) 

The Loan was never been accelerated. (Ex. 1 at ¶16.) The Loan has never been paid 

off, satisfied or settled. (Ex. 1 at ¶18.) The total amount due to pay off the loan, as of 

September 28, 2018, was $425,784.01, plus accruing interest and other advances paid by 

Bayview to protect the security interest. (Ex. 1 at ¶19.) 

STANDARD OF REVIEW 

 A court must grant summary judgment if the pleadings and supporting documents, 

viewed in the light most favorable to the nonmoving party, show there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law. 

FRCP 56(a); See, Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). 

“Only disputes over facts that might affect the outcome of the suit under the governing 

law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 

477 U.S. 242, 248 (1986). Summary judgment is appropriate against a party who “fails to 

make a showing sufficient to establish the existence of an element essential to that party’s 

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). And, the moving party must set out specific facts 

showing a genuine dispute for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 

475 U.S. 574, 585-588 (1986). 

LEGAL ANALYSIS AND ARGUMENT 

I. Plaintiff Admitted All Matters Requested In Defendants’ Requests For 

Admission. 

 Plaintiff failed to serve written answers or objections to the Requests for Admission 

propounded on Plaintiff by Defendants within the time limit provided by the Federal Rules of 

Civil Procedure. FRCP Rule 36 provides, in part, as follows: “[a] matter is admitted unless, 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

within 30 days after being served, the party to whom the request is directed serves on the 

requesting party a written answer or objection addressed to the matter and signed by the party 

or its attorney.” FRCP Rule 36(a)(3). 

Defendants served Requests for Admission upon Plaintiff on January 19, 2018. (Ex. 2 

at ¶4, Ex. A.) Defendant also filed a Notice of Service of Discovery Requests on January 23, 

2018. (Ex. 2 at ¶5, Ex. B.) Plaintiff failed to serve any answers or objections within thirty 

(30) days of service, plus five days for mailing. (Id. at ¶6) On March 27, 2018 – one month

after the responses were due - Plaintiff’s counsel sent an email to Defendants’ counsel asking 

him to agree to a “belated request for an extension” of time to serve responses to the 

discovery requests. (Id. at ¶7, Ex. C.) Defendants’ counsel denied that request in writing the 

same day and advised Plaintiff’s counsel the requests were deemed admitted. (Id. at ¶8, Ex. 

D.) Because Plaintiff failed to timely answer or object to the Requests for Admission and 

because the parties did not stipulate to a longer time for Plaintiff to respond, the Requests for 

Admission are deemed admitted. The following are some of Plaintiff’s admissions. 

1. Plaintiff admits he signed the Note. 

2. Plaintiff admits he signed the Deed of Trust. 

3. Plaintiff admits that the Deed of Trust provides the lender with the option to 

invoke the power of sale. 

4. Plaintiff admits that he breached the Note and Deed of Trust by failing to pay 

his monthly mortgage payments. 

5. Plaintiff admits that MERS was an agent of Quicken and had the authority to 

execute an Assignment of Deed of Trust. 

6. Plaintiff admits that Quicken or its successors had the ability to substitute the 

trustee under the Deed of Trust. 

7. Plaintiff admits that Defendants did not breach the implied covenant of good 

faith and fair dealings. 

8. Plaintiff admits that BNYM is the current beneficiary under the Deed of Trust. 

9. Plaintiff admits that the Assignment recorded on November 19, 2010 is valid. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

10. Plaintiff admits that the Substitution of Trustee recorded on July 3, 2017 is 

valid. 

11. Plaintiff admits that the Notice of Trustee’s Sale recorded on July 3, 2017 is 

valid. 

II. Many Of Plaintiff’s Claims Are Barred By Res Judicata. 

 “Res judicata, also known as claim preclusion, bars litigation in a subsequent action of 

any claims that were raised or could have been raised in [a] prior action.” Owens v. Kaiser 

Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (internal quotation marks 

omitted). “The doctrine is applicable whenever there is (1) an identity of claims, (2) a final 

judgment on the merits, and (3) identity or privity between parties.” Id. (internal quotation 

marks omitted). See also In re Gen. Adjudication of All Rights to Use Water In Gila River 

Sys. & Source, 212 Ariz. 64, 69–70 ¶ 14, 127 P.3d 882 (2006). “Res Judicata will not be 

defeated by minor differences of form, parties or allegations where the controlling issues 

have been resolved in a prior proceeding in which the present parties had an opportunity to 

appear and assert their rights.” Kuhns v. Corestates Financial Corp., 998 F.Supp. 573, 575 

(E.D. Pa. 1998). There is clearly an identity of claims since Plaintiff brought identical claims 

here as he did in the previous lawsuit, styled Ronald Wolfson v. Bank of America, NA, et al, 

case number P1300CV201100207, seeking the same relief for the same real property and 

Deed of Trust. (Ex. 3, generally.) There was a final judgment on the merits of the previous 

action as the complaint was dismissed and that dismissal was affirmed on appeal. (Id.) 

There is also identity and privity between the parties in both actions. BONYM was a 

Defendant in the prior action, as was Bank of America. Although Bayview was not a 

Defendant in the prior action, Bayview is the successor in interest to Bank of America’s 

interest in the Loan as the new servicer. See, Headwaters Inc. v U.S. Forest Serv., 399 F.3d 

1047, 1053 (9th Cir. 2005) (noting that privity exists when two parties have “transferred 

rights with respect to a particular legal interest.”). Further, several allegations made against 

BONYM in that action are identical to the ones here, to wit: that BONYM lacked authority to 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

initiate a trustee’s sale of the property. The Court of Appeals upheld BONYM’s lien and 

right to foreclose. (Ex. 3 at ¶¶3, 7 and 11.) 

 In the prior lawsuit, Plaintiff asserted claims for quiet title and declaratory relief. 

Plaintiff alleged, as he does here, that BONYM has no interest in the Subject Property 

because of the purportedly faulty assignment from MERS to BONYM. Specifically, he 

claimed that the note and deed of trust are inseparable and because MERS lacked authority to 

transfer the note, the assignment of the note and beneficial interest under the deed of trust 

was invalid. (Id. at ¶¶7 and 8.) The Court of Appeals found that, “MERS is the mortgagee of 

record and may assign the note and the deed of trust....” (Id. at ¶11.) The Court of Appeals 

further found that, “[a]s the lender’s assignee of record, [BONYM] is owed all outstanding 

amounts on the note...” (Id.) Because the Court of Appeals found that the assignment from 

MERS to BONYM was valid and Plaintiff owes the debt to BONYM, all claims in the 

Complaint based upon the alleged invalid Assignment are barred by res judicata. 

 In the prior lawsuit, Plaintiff also asserted a claim under ARS § 33-420, just as he 

does in this action. In the previous case, Plaintiff alleged that the Assignment and other 

recorded documents contained material misstatements or false claims because MERS had no 

authority to transfer the note to BONYM. (Id. at ¶13.) Plaintiff also alleged that the 

recordings were executed in the wrong order and by parties not authorized to sign them. The 

Court of Appeals affirmed the trial court’s dismissal of the ARS §33-420 claim, finding that 

the recorded documents were not void because they were all signed on the same day and 

recorded in the proper order. More importantly, the Court of Appeals found that “all of the 

executing entities apparently had the authority to sign the recorded documents, so the 

documents were not void.” (Id. at ¶15.) Finally, the Court of Appeals rejected Plaintiff’s 

“contention that material misrepresentation or false claims exist in the recorded documents 

because that contention stems from [Plaintiff’s] argument that MERS did not have authority 

to assign the note to [BONYM].” (Id. at ¶15.) 

Here, Plaintiff again alleges in the Complaint that the loan was not legally conveyed to 

BONYM, and the Substitution of Trustee and Notice of Trustee’s Sale are based on 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

“unauthorized assignments” by “employees of third party vendors and loan servicers 

misrepresenting their authority.” (Doc. 33 at fn. 1 and ¶¶63 and 64.) This is in direct 

contradiction of the Court of Appeals Decision. 

Because Plaintiff’s claims in the Complaint are premised upon the same allegations 

that were rejected by the Superior Court and the Court of Appeals in the prior lawsuit and 

appeal therefrom, those claims are precluded in this action and are barred by res judicata. 

III. Plaintiff’s Bankruptcy Discharge Does Not Affect Defendant BONYM’s Lien On 

The Property Or Its Ability to Foreclose.

 Plaintiff alleges throughout the Complaint that Defendants are attempting to collect a 

discharged debt by foreclosing on the property. (Doc. 33 at ¶¶38-40, 42, 44, 45, 47, 61, 62, 

79, 83, 84, 89, 100, 103-107, 122 and 131.) However, as Defendants’ counsel has advised 

Plaintiff’s counsel several times, the United States Supreme Court has confirmed that liens 

secured by a mortgage or deed of trust on real property pass unaffected through the 

bankruptcy case. 

[T]he creditor’s lien stays with the property until the foreclosure. That is what 

was bargained for by the mortgagor and the mortgagee.... 

Under the Bankruptcy Act of 1898, a lien on real property passed through 

bankruptcy unaffected. This Court recently acknowledged that this was so. See 

Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S.Ct. 1825, 1829, 114 L.Ed.2d 

337 (1991) (“Ordinarily, liens and other secured interests survive 

bankruptcy”); Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 

2154, 115 L.Ed.2d 66 (1991) (“Rather, a bankruptcy discharge extinguishes 

only one mode of enforcing a claim—namely, an action against the debtor in 

personam—while leaving intact another—namely, an action against the debtor 

in rem”). 

Dewsnup v. Timm, 502 U.S. 410, 418, 112 S. Ct. 773, 778 (1992). See also, Long v. Bullard, 

117 U.S. 617, 620-621, 6 S.Ct. 917, 918 (1886) (holding that a discharge in bankruptcy does 

not release real estate of the debtor from the lien of the mortgage created by him before the 

bankruptcy.). 

Because a bankruptcy discharge of the debt does not discharge or release the lien 

secured by the real property and does not prohibit a lender from foreclosing on the deed of 

trust, all allegations in the Complaint that Defendants are prohibited from foreclosing on the 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

Deed of Trust because Plaintiff obtained a bankruptcy discharge should be summarily 

rejected. 

IV. Plaintiff’s Count One for False Recordings Under ARS § 33-420 Fails Because 

Plaintiff Admitted The Recordings Are Valid And Is Barred By Res Judicata. 

 Plaintiff alleges that the following three documents violate ARS § 33-420: (1) the 

assignment recorded in 20122

, (2) the Substitution of Trustee, and (3) the Notice of Trustee 

Sale (collectively, the “Recorded Documents”). (Doc. 33 at ¶52.) To support this conclusion, 

Plaintiff claims that the assignment “could not have occurred as represented” because the 

legal transfer to the trust had to have occurred on or before the closing date for the CWALT 

2007-17CB trust, which was June 29, 2007. Plaintiff further alleges that the assignment 

claimed to transfer the Note and Deed of Trust, but MERS could not transfer the Note 

because MERS testifies across the nation that it does not have any interest in promissory 

notes. Finally, Plaintiff alleges that the “false Recorded Documents” have deprived Plaintiff 

of the benefits of the bankruptcy discharge by putting the Subject Property at risk.” (Doc. 33 

at ¶62.) 

First and foremost, as stated in Section II above, Count One is barred by res judicata

because the Arizona Court of Appeals has already found that the Assignment from MERS to 

BONYM is valid and BONYM is owed all outstanding amounts on the note. Next, Plaintiff 

admitted that (1) MERS was an agent of Quicken, (2) MERS had the authority to execute the 

Assignment of the Deed of Trust, (3) Quicken and its successors had the ability to substitute 

the trustee under the Deed of Trust, (4) BONYM is the current beneficiary under the Deed of 

Trust, and (5) the Recorded Documents are valid. See, Section I above at ¶¶ 5, 6, and 8-11. 

Further, as stated in Section III above, a mortgage lien on real property passes through a 

bankruptcy discharge, and therefore, the discharge did not protect the Subject Property from 

 

2

 Plaintiff points out that the Assignment recorded in 2012 was recorded after the 

appellate court decision in the prior lawsuit and thus, is fair game in this lawsuit. 

However, MERS had already assigned its interest in the Deed of Trust to BONY in 2010, 

as the Court of Appeals held, and therefore, the Assignment recorded in 2012 had no 

effect on title. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

the risk of being foreclosed upon. In fact, an assignment does not even have to be recorded 

prior to a trustee’s sale. See, In re Vasquez, 266 P.3d 1053, 1055 (Ariz. 2011). 

Additionally, to state a claim under ARS § 33-420 based on a misstatement of fact or 

false claim, Plaintiff must plausibly allege that (1) Defendants knowingly recorded or caused 

to be recorded a document containing a misstatement of fact or false claim and (2) the 

misstatement or false claim was material to him. Sitton v. Deutsche Bank Nat'l Trust. Co., 

233 Ariz. 215, 311 P.3d 237, 243 (Ariz. Ct. App. 2013). The Arizona Court of Appeals has 

concluded that recorded assignments that contain misstatements related to the identity of the 

beneficiary or trustee of a Deed of Trust are generally not material because they typically do 

not alter a borrower’s obligations pursuant to the loan. Id. at 242-43. Plaintiff admits he has 

failed to make payments on the Loan since 2010 and therefore, he was subject to foreclosure 

no matter who was assigned as beneficiary or as substitute trustee. The alleged 

misrepresentations in the Assignment, Substitution of Trustee and Notice of Trustee’s Sale 

were not material to Plaintiff and Defendants are entitled to summary judgment as to Count 

One.

IV. Count Two For Breach Of The Implied Covenant Of Good Faith And Fair 

Dealing In The Note And Deed Of Trust Contracts Fails Because Plaintiff Admitted 

That Plaintiff Did Not Breach The Implied Covenant. 

 In Count Two, Plaintiff alleges that Defendants breached the implied covenant of 

good faith and fair dealing in the Note and Deed of Trust for a multitude of reasons. (Doc. 

33 at ¶100.) First, Plaintiff claims the entities seeking to enforce the Loan should be those 

legally entitled to do so and should use good faith in initiating and proceeding with 

foreclosure. Then, Plaintiff asserts a laundry list of other “reasons” why Defendants breached 

the implied covenant, all of which are contained within a single paragraph with no factual 

support. 

Defendants are entitled to summary judgment on this Count for many reasons, but 

most importantly, because Plaintiff admits that Defendants did not breach the implied 

covenant of good faith and fair dealings. See, Section I at ¶7. Plaintiff further admits that (1) 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

he signed the Note and the Deed of Trust, which provided the lender with the option to 

invoke the power of sale; (2) he breached the Note and Deed of Trust by failing to pay his 

monthly mortgage payment; (3) MERS, as an agent of Quicken, had the authority to execute 

an Assignment of the Deed of Trust; (4) Quicken and its successors had the ability to 

substitute the trustee under the Deed of Trust; (5) BONYM is the current beneficiary with the 

right to invoke the power of sale; and (6) the Recorded Documents are valid. 

Plaintiff also fails to identify a breach of any of the terms in the Note or Deed of Trust.

 Any inquiry into the implied Covenant of Good Faith and Fair Dealing begins with a review 

of the contract itself to determine what the parties did agree to. Wagenseller v. Scottsdale 

Memorial Hospital, 147 Ariz. 370, 383, 710 P.2d 1025, 1040 (1985). The covenant, however, 

“does not extend beyond the terms of the contract at issue.” Carter v. HSBC Mortg. Corp., 

CV 10-1002-PHX-MHM, 2010 WL 4792638, at *3 (D. Ariz. Nov. 18, 2010) (citing Best v. 

Henderson, 2008 WL 2154795, *5 (Ct.App. May 20, 2008). Consequently, Plaintiff’s 

breach of the Implied Covenant of Good Faith and Fair Dealing claim fails as a matter of law 

since he cannot establish a breach of the terms of the Note or Deed of Trust. 

Although Plaintiff’s admission is an independent basis to enter summary judgment on 

Count Two, the other “reasons” as to how Defendants breached the implied covenant fail as a 

matter of law. First, Plaintiff claims Defendants breached the covenant by attempted to 

collect a discharged debt without authority via misleading statements. (Doc. 33 at ¶100.) 

Plaintiff does not provide any facts to clarify or support this assertion; however, assuming 

Plaintiff is referring to foreclosing after a bankruptcy discharge, this issue was addressed in 

Section III above. Case law is well settled that a bankruptcy discharge of the debt does not 

release the lien secured by the real property and does not prohibit a lender from foreclosing 

on the deed of trust. 

Second, Plaintiff claims Defendants are attempting to collect a time-barred debt. (Doc. 

33 at ¶100.) However, the Court of Appeals has already found that Plaintiff owes the debt to 

BONYM. And, the Loan records show that the Loan has never been accelerated. (Ex. 1 at 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

¶16.) Further, Defendants are not collecting on a debt; Defendants are rightfully foreclosing 

on the lien securing the debt. 

The six year statute of limitations, under A.R.S. § 12-548, applies to foreclosure 

actions as well as to actions on the underlying debt. See De Anza Land and Leisure Corp. v. 

Raineri, 137 Ariz. 262, 266, 669 P.2d 1339 (Ct. App. 1983). In Arizona, the “Continuous 

Breach Theory” is an exception to the statute of limitations. See Ancala Holdings, LLC v. 

Price, 220 Fed.Appx. 569, 572 (9th Cir. 2007) (unpublished). Under this theory, a cause of 

action accrues each time a party fails to perform as required under the contract. See Id. 

(citing Builders Supply Corp. v. Marshall, 88 Ariz. 89, 95, 352 P.2d 982, 986 (1960)). 

Phrased another way, each time the debtor fails to make a payment when it becomes due, a 

separate breach occurs and a separate cause of action accrues. Id. In this case, each month 

that Plaintiff missed a payment, he committed a new breach. Therefore, Plaintiff’s claims 

arising out of the statute of limitations defense fail as a matter of law. 

 Also in Arizona, if an installment contract contains an optional acceleration clause, the 

statute of limitations begins to run when a lender exercises the optional acceleration clause 

by demanding the full payment of the note before all installments become due. Navy Fed. 

Credit Union v. Jones, 187 Ariz. 493, 930 P.2d 1007, 1009 (Ct. App. 1996). Plaintiff has the 

burden of establishing the accrual date for purposes of computing the statute of limitations. 

See Estate of Page v. Litzenburg, 177 Ariz. 84, 91, 865 P.2d 128, 135 (App. 1993); Selby v. 

Karman, 20 Ariz.App. 206, 511 P.2d 650 (1973). And, a creditor must undertake some 

affirmative act to make clear to the debtor it has accelerated the obligation. See, e.g., In re 

Crystal Props., Ltd., 268 F.3d 743, 749–50 (9th Cir.2001). 

Plaintiff has not provided any admissible evidence that the loan was, in fact, 

accelerated in 2010. The only evidence relied upon by Plaintiff is a letter sent to Plaintiff by 

Bank of America in 2010, stating the full amount of the loan “would be accelerated” unless 

all amounts due were not paid. (Doc. 33 at ¶19, Ex. C.) Plaintiff does not allege that the loan 

was actually accelerated or that he received a letter notifying him that the Loan has been 

accelerated. To the contrary, Plaintiff admits that the 30 day notice of default, as required by 

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paragraph 22 of the Deed of Trust, was not sent to Plaintiff. This is further evidence that 

Defendants did not take an affirmative act to accelerate the Loan. In fact, BONYM sent 

Plaintiff a Notice of Default and Intent to Accelerate on April 27, 2016. (Doc. 33 at ¶38, Ex. 

I.) Certainly, a loan cannot be accelerated if it was already accelerated. 

Third, Plaintiff claims Defendants are “hiding the identity of the true beneficiary” by 

misrepresenting the investor of the loan through letters and false documents. (Doc. 33 at 

¶100.) The Court of Appeals confirmed that BONYM is the beneficiary of the Deed of Trust 

and is owed the debt before Plaintiff filed the Complaint. The Court of Appeals also found 

that the recorded documents did not contain material misrepresentations or false claims. 

Thus, the title documents have been clear since 2010 that BONYM is the investor. 

Fourth, Plaintiff claims that Defendants allowed an entity, not the Note Holder and 

Lender, to declare a default, to accelerate the debt, and to initiate foreclosure. (Doc. 33 at 

¶100.) The Court of Appeals’ decision confirms that Recorded Documents did not contain 

false claims. Therefore, the Deed of Trust was properly assigned to BONYM, BONYM 

properly substituted a new trustee under the Deed of Trust, and the new trustee properly 

recorded a notice of trustee’s sale. All were proper entities and all were authorized under the 

Deed of Trust and Deed of Trust statutes to take such actions. 

Fifth, Plaintiff claims the lender did not notify the trustee, in writing, that the loan was 

in default, and of an election to foreclosure. (Doc. 33 at ¶100.) Plaintiff has not provided any 

evidence to support this allegation. Furthermore, this allegation is directly contradicted by the 

Loan records. Defendant Bayview confirms in the attached Affidavit that Bayview, as 

BONYM’s servicer and attorney-in-fact, gave the trustee written notice that the loan was in 

default and that it was electing to foreclose. (Ex. 1 at 12.) 

Finally, Plaintiff claims that Defendants sought to proceed to a trustee’s sale on 

invalid documents (the “Recorded Documents”) and by recording the false Recorded 

Documents. (Doc. 33 at ¶100.) Again, these allegations of false Recorded Documents are 

premises on the alleged false assertions in the Assignment which the Court of Appeals has 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

affirmed is valid. For all of the reasons stated in this Section IV, this Court should grant 

summary judgment as to Count Two. 

V. Count Three For Fraudulent Misrepresentation Fails Because Defendants Did 

Not Misrepresent The Status Of The Debt Or Its Ability To Foreclose. 

 Plaintiff claims that Defendants made false representations regarding the status of the 

debt by stating the debt was discharged in bankruptcy ant then stating that they had authority 

to enforce the Deed of Trust. (Doc. 33 at ¶¶103 and 104.) These representations were not 

false or contradictory. As stated in Section III above, a debt can be discharged in 

bankruptcy, and the lender still has the authority to enforce the Deed of Trust through 

foreclosure. 

Plaintiff is confusing a discharge of his obligation to pay a debt in bankruptcy with 

satisfaction of the debt itself. Plaintiff argues that because Defendants stopped reporting the 

loan to the credit bureaus and stopped sending him monthly mortgage statements, he 

“believed” the loan was satisfied. Plaintiff’s erroneous belief does not make Defendants’ 

representations false. Lenders are prohibited by federal laws from certain credit reporting and 

sending certain notices to the borrower after a bankruptcy discharge. The lack of reporting or 

notices does not mean the loan simply vanished. Plaintiff has not shown any evidence that 

the loan was satisfied or paid off or “settled.” Bayview’s letters to Plaintiff consistently state 

that the debt exists but Plaintiff’s personal obligation was discharged in bankruptcy. (Doc. 

33 at Exs. I, K and L.) 

To make a claim for fraudulent misrepresentation, Plaintiff must show (1) a 

representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or 

ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the 

manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the listener's 

reliance on its truth; (8) the right to rely on it; and (9) his consequent and proximate injury. 

Echols v. Beauty Built Homes, Inc. 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982), (citing 

Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966)). Plaintiff alleges that Defendants 

falsely feigned authority to foreclose. However, the Court of Appeals has already upheld 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

Defendant BONYM’s right to foreclose. (Ex. 3 at ¶¶2, 3, 7 and 11.) Consequently, there is 

no viable claim for fraudulent misrepresentation. 

VI. Count Four For Breach of Contract And Payment/Satisfaction Fails Because 

Plaintiff Admitted He Breached The Note and Deed Of Trust And The Allegations Are 

Speculative. 

 Plaintiff claims, by way of mere conclusory statements, that the holder of the Note has 

already been paid and the lender must release the deed of trust. (Doc. 33 at ¶112-115.) 

Plaintiff claims that the “PSA, the Servicing Agreement, and the Master Purchase Agreement 

terms indicate that [BONYM] had insurance to cover losses suffered by defaults on loans and 

servicing rights purchased from CWALT, Inc.” Plaintiff then concludes that Defendants have 

been received payments “from Plaintiff/Borrower, PMI or other insurance coverage or 

associated contracts” so they have already been paid. Plaintiff has not asserted any facts to 

supports this wild conclusion. The Loan records clearly reflect that the loan has not been paid 

off by Plaintiff, from insurance or otherwise. (Ex. 1 at ¶¶18 and 19.) 

Furthermore, Plaintiff is merely speculating that some other party may have

compensated Bayview. “Speculation is not enough, especially naked speculation of this 

variety.” Schayes v. Orion Fin. Grp., Inc., No. CV-10-02658-PHX-NVW, 2011 WL 

3156303, at *4 (D. Ariz. July 27, 2011) (citing, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 

VII. Count Five for FDCPA Fails Because Bayview Did Not Attempt To Collect The 

Debt. 

 A claim under the FDCPA must be brought “within one year from the date on which 

the violation occurs.” 15 U.S.C. § 1692k(d); see also, Lyons v. Michael & Assocs., 824 F.3d 

1169, 1171 (9th Cir. 2016). Plaintiff filed this action on November 7, 2017. Therefore, any 

allegations of alleged attempts to collect a debt that occurred prior to November 7, 2016 are 

barred by the one year statute of limitations. Further, the discovery rule does not apply 

because all of Plaintiff’s allegations concern letters or phone calls sent to him, which would 

have been discovered upon his receipt of same. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

Plaintiff does not provide any facts related to any telephone call made by Bayview to 

Plaintiff. Plaintiff does, however, reference letters or notices sent to him by Bayview. 

Plaintiff alleges that Exhibits H and I attached to the Complaint are examples where Bayview 

“regularly” misrepresented the debt and “dunned” Plaintiff for amounts not due. (Doc. 33 at 

¶120.) Exhibit H is a letter from Bayview to the Arizona Attorney General in response to a 

consumer complaint filed by Plaintiff. That letter is dated September 4, 2014 and therefore, is 

outside the statute of limitations. (Doc. 33 at ¶36, Ex. H.) Exhibit I is Notice of Default and 

Intent to Accelerate sent by Bayview to Plaintiff, dated April 26, 2016. This letter is also 

barred by the statute of limitations. (Doc. 33 at ¶38, Ex. I.) Moreover, Exhibit H expressly 

stated that Plaintiff had no personal liability on the Note. Exhibit I is required by paragraph 

22 of the Deed of Trust, and included the following disclaimer: “TO THE EXTENT YOUR 

OBLIGATION HAS BEEN DISCHARGED ... IN A BANKRTUPCY PROCEEDING, 

THIS NOTICE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT 

CONSTITUTE A DEMAND FOR PAYMENT OR AN ATTEMPT TO COLLECT AN 

INDEBTEDNESS AS YOUR PERSONAL OBLIGATION.” (Doc. 33 at Ex. I.) 

 Plaintiff further alleges that Exhibit K, L and M attached to the Complaint were 

attempts to collect the debt. Exhibit K is a Statement of Breach sent from Bayview to 

Plaintiff on June 29, 2017. Exhibit L is the Notice of Sale dated July 3, 2017. Exhibit M is 

the Substitution of Trustee dated July 3, 2017. (Doc. 33 at ¶¶42, 44 and 46, Exs. K, L and 

M.) All three of these letters are required by the Deed of Trust statutes as part of a nonjudicial foreclosure proceeding. See, ARS §§33-804, 33-808, 33-809, respectfully. These are 

not attempts to collect a debt because non-judicial foreclosure of a deed of trust is not debt 

collection under the FDCPA. See Diessner v. Mortgage Electronic Registration System, 618 

F. Supp. 2d 1184, 1189 (D. Ariz. May 18, 2009); Mansour v. Cal-W. Reconveyance Corp., 

618 F. Supp. 2d 1178, 1182 (D. Ariz. Apr. 21, 2009). 

 The only other letter referred to by Plaintiff in the Complaint that was sent after 

November 2016 is a “Debt Validation Notice,” allegedly dated July 7, 2017. Plaintiff claims 

to have attached a copy of that notice to the Complaint as Exhibit N, but no such exhibit is 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

attached. Thus, Defendants are unable to respond to this allegations. Plaintiff does, however, 

state that the Notice was sent by the trustee under the Deed of Trust. Thus, it could not be an 

attempt by Bayview to collect a debt. 

VIII. Count Six for Violations of RESPA Fails Because It Is Partially Barred By The 

Statute Of Limitations And Because Bayview Conducted Reasonable Investigations 

And Responded to Plaintiff. 

 There is a three-year statute of limitations for violations of RESPA. See 12 USC § 

2614. Plaintiff alleges that he sent Bayview qualified written requests, notices of error and 

requests for information and that Bayview failed to adequately respond or perform a 

reasonable investigation. (Doc. 33 at ¶138.) The first allegation in Count Six is that Bayview 

improperly assessed late fees within the 60-day grace period for transfers of servicing under 

RESPA. (Id. at ¶140.) Servicing transferred to Bayview in 2012 and therefore, this claim is 

barred by the statute of limitations. Plaintiff then refers to letters sent to and from Bayview in 

2012, 2013 and as late as September 2014. (Doc. 33 at ¶29-38.) Again, these letters are 

barred by the statute of limitations. 

The only qualified written request sent to Bayview is not attached to the Complaint, 

but Plaintiff admits that Bayview responded in a letter dated June 7, 2016. (Doc. 33 at ¶¶ 39 

and 41, Ex. J.) Plaintiff merely alleges that, “Bayview’s June 7, 2016 response demonstrated 

no effort by Bayview to conduct a reasonable investigation of the error and did not provide 

documentation supporting the complete change in position from 2012.” (Id. at ¶41.) Because 

Plaintiff’s letter is not attached to the Complaint, Bayview is unable to ascertain whether it 

was an actual “qualified written request” pursuant to RESPA and is unable to determine 

whether its response was complete. Exhibit J shows that Bayview did, however, respond and 

accurately stated that the loan is due for June 1, 2010 and subsequent payments, that Bayview 

is the sub-servicer of the loan on behalf of the master servicer Bank of America, and that the 

owner of the loan is BONYM. Bayview also included a copy of the account activity 

statement detailing all transactions and their effective dates, and copies of the Note, Deed of 

Trust and Assignment. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

Plaintiff also alleges a laundry of list of items that Bayview did improperly, e.g. 

“Payments to Bank of America prior to the transfer of servicing to Bayview were misapplied. 

Bayview failed to correct Aurora’s3

 errors and adopted them. Bayview improperly put 

payments in suspense. Bayview improperly paid their [sic] own claimed ‘advances’ first.... 

Bayview improperly charged late fees. Bayview improperly pyramided fees. Bayview 

improperly managed the escrow account and imposed lender-placed insurance where 

unwarranted. Bayview refused payment and sent them back to Plaintiffs without applying 

them to the loan. Bayview improperly adopted Aurora’s errors without investigation or 

diligence, and thereby ratified them.” (Doc. 33 at ¶¶149-152 and 160-164.) Many of 

Plaintiff’s laundry list of errors can be summarily rejected because Plaintiff did not make any 

payments on the loan while Bayview was servicing the loan. As a result, Bayview could not 

have “improperly put payments in suspense,” or “improperly paid their own claimed 

‘advances’ first.” 

Plaintiff does not allege any specific facts to support these conclusions regarding 

Bayview and does not specify when these alleged errors occurred. Therefore, Defendants 

cannot determine which, if any, allegations are barred by the statute of limitations, and 

cannot adequately respond to the remaining allegations, if any. 

IX. Defendants Are Entitled To Reasonable Attorney Fees And Costs. 

 Defendants are entitled to reasonable attorney fees and costs incurred in defending 

this action pursuant to ARS §§ 12-341 and 12-341.01. Plaintiff’s Complaint challenges 

Defendants’ right to enforce the Deed of Trust through foreclosure. Thus, this action is 

based on a contract, the Deed of Trust, which authorizes an award of attorneys’ fees and 

costs. 

CONCLUSION 

For the foregoing reasons, Defendants respectfully request that this Court enter 

summary judgment in their favor and against Plaintiff. In the alternative, Defendants request 

 

3

 There is no evidence that an entity named Aurora ever had an interest in or serviced the 

Loan. 

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File # 17003357 MOTION FOR SUMMARY JUDGMENT 

CERTIFICATE OF SERVICE 

 I hereby certify that on the date stated above, a copy of the foregoing has been 

transmitted electronically to the CM-ECF filing system for filing and transmittal along 

with copies transmitted to the following parties via the CM-ECD system. 

COPY mailed this same day to: 

Beth Findsen, Esq, 

The Law Offices of Beth K. Findsen, PLLC 

7279 East Adobe Drive, suite D-120 

Scottsdale, AZ 85255 

Counsel for Plaintiff 

COURTESY COPY mailed this same day to: 

Honorable Dominic W. Lanza 

United States District Court 

Sandra Day O’Connor U.S. Courthouse, Suite 621 

401 West Washington Street, SPC 46 

Phoenix, AZ 85003-2151 

/s/ Courtney Perry 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 20 of 104
Wolfson v. Bayview, et al. 

CV-17-8258-PCT-DWL 

TABLE OF CONTENTS 

1. Affidavit of Randall Jackson in support of Motion for Summary Judgment or, in 

the alternative, Partial Summary Judgment 

2. Affidavit of Kim R. Lepore in support of Motion for Summary Judgment or, in the 

alternative, Partial Summary Judgment 

3. Arizona Court of Appeals Memorandum decision filed March 11, 2014 

4. Excerpts from Deposition of Myron De Sa, Designee for Bayview Loan Servicing, 

LLC 

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EXHIBIT C 

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EXHIBIT D 

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EXHIBIT E 

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EXHIBIT F 

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-1- 

NOTICE OF SERVICE OF DISCOVERY REQUESTS File #17003357 

Eric L. Cook, Esq. (AZ Bar #020797) 

ecook@zbslaw.com

Joseph J. Tirello, Esq. (AZ Bar #033371) 

jtirello@zbslaw.com

ZIEVE, BRODNAX & STEELE, LLP

3550 North Central Avenue, Suite 625 

Phoenix, AZ 85004

Phone: (602) 282-6188 

Attorneys for Defendants Bayview Loan Servicing, LLC and The Bank Of New York 

Mellon fka The Bank Of New York, As Trustee For The Certificateholders Of The 

CWALT, Inc., Alternative Loan Trust 2007-17CB Mortgage Pass-Through Certificates, 

Series 2007-17CB 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

RONALD WOLFSON, 

Plaintiff, 

vs. 

BAYVIEW LOAN SERVICING, LLC; 

THE BANK OF NEW YORK MELLON 

FKA THE BANK OF NEW YORK, AS 

TRUSTEE FOR THE 

CERTIFICATEHOLDERS OF THE 

CWALT, INC., ALTERNATIVE LOAN 

TRUST 2007-17B MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 

2007-17B, 

Defendants. 

Case No. 3:17-cv-08258-DMF 

NOTICE OF SERVICE OF 

DISCOVERY REQUESTS

NOTICE IS HEREBY GIVEN that Defendants Bayview Loan Servicing, LLC and 

The Bank Of New York Mellon fka The Bank Of New York, As Trustee For The 

Certificateholders Of The CWALT, Inc., Alternative Loan Trust 2007-17CB Mortgage PassThrough Certificates, Series 2007-17CB, (collectively the “Defendants”), through 

undersigned counsel, served upon Plaintiff Ronald Wolfson, (“Plaintiff”), First Set of 

Request for Admissions, First set of Request for Production of Documents and Non-Uniform 

Interrogatories on January 19, 2018, via U.S. Mail and email upon counsel for Plaintiff as 

follows: 

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NOTICE OF SERVICE OF DISCOVERY REQUESTS File #17003357 

Beth Findsen, Esq, 

The Law Offices of Beth K. Findsen, PLLC 

7279 East Adobe Drive, suite D-120 

Scottsdale, AZ 85255 

Counsel for Plaintiff 

DATED this 19th day of January 2018. 

 ZIEVE, BRODNAX & STEELE, LLP 

 /s/Eric L. Cook 

ERIC L. COOK 

Attorney for Defendants Bayview Loan Servicing, LLC 

and The Bank Of New York Mellon fka The Bank Of 

New York, As Trustee For The Certificateholders Of 

The CWALT, Inc., Alternative Loan Trust 2007-17CB 

Mortgage Pass-Through Certificates, Series 2007-

17CB 

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-3- 

NOTICE OF SERVICE OF DISCOVERY REQUESTS File #17003357 

CERTIFICATE OF SERVICE 

 I hereby certify that on the date stated above, a copy of the foregoing has been 

transmitted electronically to the CM-ECF filing system for filing and transmittal along 

with copies transmitted to the following parties via the CM-ECF system. 

COPY mailed this same day to: 

Beth Findsen, Esq, 

The Law Offices of Beth K. Findsen, PLLC 

7279 East Adobe Drive, suite D-120 

Scottsdale, AZ 85255 

Counsel for Plaintiff 

/s/ Dayna Amsler 

Dayna Amsler 

An employee of ZIEVE, BRODNAX & STEELE, LLP 

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EXHIBIT C 

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1

Kim Lepore

From: Beth Findsen <findsenb@gmail.com>

Sent: Tuesday, March 27, 2018 10:39 AM

To: Eric Cook

Subject: Wolfson v Bayview

Dear Eric: 

Today I discovered to my horror that we are late in responding to Bayview's written discovery 

propounded January 19th, it appears. 

I had a significant medical issue and missed the date. 

I will have full responses to you by Friday. Please advise if you will agree to this belated request for an

extension. 

Thank you, 

Beth 

-- 

Beth K. Findsen, Esq

Law Office of Beth K. Findsen, PLLC

7337 E. Russet Sky Dr

Scottsdale, AZ 85266

findsenb@gmail.com

(480)659-7631 (office)

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EXHIBIT D 

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1

Kim Lepore

From: Eric Cook

Sent: Tuesday, March 27, 2018 2:27 PM

To: 'Beth Findsen'

Cc: Eric Cook; Joseph Tirello

Subject: RE: Wolfson v Bayview

Beth,

I cannot agree to your request for an extension a month after the discovery responses were due.  I served the Request

for Admissions, Request for Production of Documents and Non‐Uniform Interrogatories on January 19, 2018.  I then filed

a notice of service of the written discovery, with the court, on January 23, 2018.  The discovery responses were due

thirty five days from January 19, 2018 given the use of U.S. Mail.  By my calculations,  the responses were due on or

before February 23, 2018.    

To date, we have worked in a professional manner.  We both have extended professional courtesies to each other.  And

I appreciate such professional courtesies.  Unfortunately, any proposed courtesy or extension will not reverse the fact

that the requests for admissions are deemed admitted.    

I will need the responses to the Request for Production of Documents and Non‐Uniform Interrogatories as soon as

possible.  Please confirm that the responses will be served by Friday, March 30, 2018.

Let me know if you have any questions or concerns.  Thank you

Eric  

Eric L. Cook

Managing Attorney   

Zieve, Brodnax & Steele, LLP   3550 N. Central Ave., Suite 625 

Phoenix, Arizona 85012 

(P) 602-282-6188 x 203 (eFAX) 602-865-8086 

(E) ecook@ZBSlaw.com (W) www.ZBSlaw.com 

Admitted to the practice of law in Arizona 

Representation in: CA | AZ | NV | WA | OR 

Please consider the environment before printing this email. Reduce.  Re‐Use.  Recycle.

Notice of Confidentiality & Electronic Privacy Notice:  

This e‐mail message and its attachments, if any, is inclusive and protected by electronic communications privacy laws and is proprietary in nature to Zieve,

Brodnax & Steele, LLP (“Company”), and is intended solely for the use of the addressee hereof.  Please be advised that this message, and the attachments, if

any, may contain information that is confidential, privileged and exempt from disclosure under applicable law. If the reader of this message is not a specified

and intended recipient, you are hereby notified and strictly prohibited from reading, retaining, disclosing, reproducing, distributing, disseminating or otherwise

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from your system. You are further advised that this e‐mail and any response thereto is the property of the Company and can be accessed and reviewed by the

Company at any time.

From: Beth Findsen [mailto:findsenb@gmail.com] 

Sent: Tuesday, March 27, 2018 10:39 AM 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 85 of 104
2

To: Eric Cook 

Subject: Wolfson v Bayview 

Dear Eric: 

Today I discovered to my horror that we are late in responding to Bayview's written discovery 

propounded January 19th, it appears. 

I had a significant medical issue and missed the date. 

I will have full responses to you by Friday. Please advise if you will agree to this belated request for an

extension. 

Thank you, 

Beth 

-- 

Beth K. Findsen, Esq

Law Office of Beth K. Findsen, PLLC

7337 E. Russet Sky Dr

Scottsdale, AZ 85266

findsenb@gmail.com

(480)659-7631 (office)

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 86 of 104
EXHIBIT 3 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 87 of 104
NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

RONALD A. WOLFSON, Plaintiff/Appellant,

v.

BANK OF AMERICA, N.A.; BAC HOME LOANS SERVICING LP; BANK 

OF NEW YORK MELLON; COUNTRYWIDE HOME LOANS, INC.; 

RECONTRUST COMPANY, N.A.; and MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC., Defendants/Appellees.

No. 1 CA-CV 12-0691

Appeal from the Superior Court in Yavapai County

No. P1300CV201100207

The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

Ronald A. Wolfson, Prescott

Plaintiff/Appellant In Propria Persona

Bryan Cave LLP, Phoenix

By Robert W. Shely, Gregory B. Iannelli

Counsel for Defendants/Appellees

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 88 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

G E M M I L L, Judge:

¶1 Ronald A. Wolfson appeals the trial court’s dismissal of his 

claims for quiet title, declaratory judgment, and a violation of Arizona’s 

false recording statute, Arizona Revised Statute (“A.R.S.”) § 33-420. For 

the following reasons, we affirm the dismissal.

BACKGROUND

¶2 Wolfson executed a promissory note secured by a deed of 

trust on his home in May of 2007. The deed of trust identified Quicken 

Loans as the lender and Title Source as the trustee. It named Mortgage 

Electronic Registration System, Inc. (“MERS”) as the beneficiary “acting 

solely as a nominee for Lender and Lender’s successors and assigns.”1 

The deed of trust provided that MERS held “only legal title” to the 

lender’s interests but had the right to act on the lender’s behalf regarding

those interests. Wolfson was notified in June 2007 that Quicken Loans 

was transferring the servicing rights to Countrywide, but he did not

receive notice that his note had been actually transferred or assigned. 

Both the note and deed of trust provided, however, that they could be 

transferred without notice to Wolfson.

 1 MERS is a private corporation that administers a national electronic 

registry to track the transfer of ownership interests and servicing rights in 

mortgage loans. Members assign their interests to MERS, and MERS 

becomes the mortgagee of record. When one member transfers an interest 

to another member, MERS privately tracks the assignment but remains the 

mortgagee of record, thereby allowing members to sell their interests 

without having to record the transactions in the public record. Sitton v. 

Deutsche Bank Nat. Trust Co., 233 Ariz. 215, 216 n.1, ¶ 3, 311 P.3d 237, 238 

n.1 (App. 2013); see also Steinberger v. McVey ex rel. Maricopa County, 1 CASA 12-0087, 2014 WL 333575, at *10-11 n.9, ¶ 28 (Ariz. App. Jan. 30, 2014). 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 89 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

3

¶3 Wolfson defaulted on the note in June of 2010. Five months 

later, MERS assigned “all beneficial interest under [the Wolfson] deed of 

trust . . . together with the note” and “all rights accrued or to accrue under 

said deed of trust” to Defendant/Appellee The Bank of New York Mellon 

FKA The Bank of New York, as Trustee for the Certificateholders CWALT, 

Inc., Alternative Loan Trust 2007-17CB Mortgage Pass-through 

Certificates, Series 2007-17CB (“Mellon”). On the same date, Mellon 

recorded a substitution of trustee appointing ReconTrust Company as 

successor trustee, and ReconTrust Company recorded a notice of trustee’s 

sale of Wolfson’s property. 

¶4 Wolfson filed suit seeking an injunction to stop the trustee’s 

sale. ReconTrust voluntarily cancelled the sale. After Wolfson amended 

his complaint, the Defendants filed a motion to dismiss the amended 

complaint under Rule 12(b)(6) of the Arizona Rules of Civil Procedure for 

failure to state a claim on which relief can be granted. The trial court 

granted the Defendants’ motion. Wolfson filed a motion for new trial, 

which the court denied. Wolfson timely appealed, and we have 

jurisdiction under A.R.S. § 12-2101(A)(1) and (5)(a).

ANALYSIS

¶5 We review the dismissal of a complaint de novo. Coleman v. 

City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). In reviewing 

the dismissal of a complaint for failure to state a claim, we accept as true 

the well pled facts alleged in the complaint and will affirm the dismissal 

only if the plaintiff would not be entitled to relief under any interpretation 

of the facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 

222, 224, ¶ 4, 954 P.3d 580, 582 (1998). We need not, however, accept 

conclusions of law or unwarranted deductions of fact. Aldabbagh v. 

Arizona Dep’t of Liquor Licenses & Control, 162 Ariz. 415, 417, 783 P.2d 1207, 

1209 (App. 1989). A complaint's exhibits, or public records regarding 

matters referenced in a complaint, are not “outside the pleading,” and 

courts may consider such documents without converting a Rule 12(b)(6) 

motion into a summary judgment motion. Coleman, 230 Ariz. at 356, ¶ 9, 

284 P.3d at 867. 

I. Quiet Title Claim

¶6 Arizona law does not allow a homeowner to quiet title as to 

the beneficiary of the deed of trust until the debt on the home is paid or 

offered to be paid. Farrell v. West, 57 Ariz. 490, 491, 114 P.2d 910, 911 

(1941). Wolfson nevertheless argues that the trial court erred in applying 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 90 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

4

the “tender rule” to bar his quiet title claim against Mellon and that doing 

so offended basic notions of due process. He asserts that if the tender 

rule bars his action then only the wealthy - those in a position to tender a 

large lump sum payment - would have access to the courts to quiet title to 

their property. 

¶7 Wolfson admits he owes some entity the outstanding 

balance of the note, but he denies owing it to Mellon. He contends that his 

note was never transferred to Mellon, and because the note and deed of 

trust are inseparable, citing Hill v. Favour, 52 Ariz. 561, 569, 84 P.2d 575 

(1938), the beneficial interest under the deed of trust was never transferred 

to Mellon. Thus, Wolfson concludes that Mellon has no interest in his 

property. 

¶8 The trial court dismissed Wolfson’s quiet title claim under 

Farrell because Wolfson had not paid or tendered payment of the 

outstanding balance of the note. Wolfson argues that Farrell is 

distinguishable from this case because the identity of the party owed

money under the mortgage (the defendant-mortgagee or his assignee) was 

not at issue in Farrell, while it is at issue here. Wolfson claims that he 

owes no amount to Mellon because MERS lacked authority to transfer the 

note, so the assignment of the note from MERS to Mellon and the 

beneficial interest under the deed of trust was invalid. Because he 

supposedly owes no money to Mellon, Wolfson argues that he should not 

be required to pay off the note in order to avoid dismissal of his quiet title 

claim. 

¶9 We need not decide whether Farrell is distinguishable from 

this case because Wolfson’s argument about the validity of the note’s

assignment from MERS to Mellon is a legal conclusion that we reject. See 

Aldabbagh, 162 Ariz. at 417, 783 P.2d at 1209. He arrives at this conclusion 

based on an unwarranted factual deduction that, because he never 

received notice of any transfer of his note from Quicken Loans to an 

assignee, no such transfer took place. However, the note and the deed of 

trust both inform Wolfson that the lender may transfer the note at any 

time without notifying him. The fact that Wolfson received no notice of 

any transfer does not require the conclusion that no transfer took place.2 

 2 Wolfson further asserts that the note can only be negotiated or 

transferred pursuant to A.R.S. § 47-3201(B), which was not done by MERS. 

Again, this is an unwarranted legal conclusion based on Wolfson never 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 91 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

5

¶10 The note and the deed of trust are evidence of the borrower’s

debt and the right to foreclose for failure to repay the debt. Steinberger, 1 

CA-SA 0087, at *9, ¶25. The note and deed of trust demonstrate that 

MERS had the power to act as the agent of any valid note holder under the

terms of the deed of trust. The plain language of the deed of trust states 

that MERS was authorized to act as nominee for Quicken Loans and its 

“successors and assigns.” MERS was also designated as the beneficiary 

under the deed of trust, which provided that MERS had the right to 

exercise the lender’s interests.

¶11 In cases such as these, MERS is the mortgagee of record and 

may assign the note and the deed of trust without regard to the lender’s 

legal status. Sitton, 233 Ariz. at 221, ¶ 28, 311 P.3d at 243 (citing Rosa v. 

Mortgage Electronic Sys., Inc., 821 F. Supp. 2d 423, 431 (D. Mass. 2011))

MERS had the authority to transfer the beneficial interest in the deed of 

trust and the note. According to the assignment, MERS transferred the 

beneficial interest to Mellon. Contrary to Wolfson’s assertion, Mellon is 

not an unauthorized party to whom Wolfson owes no money. As the 

lender’s assignee of record, Mellon is owed all outstanding amounts on 

the note, and Wolfson must pay or tender payment of the amount owed 

under the note to maintain an action to quiet title. See Farrell, 57 Ariz. at

491, 114 P.2d at 911. Accordingly, the trial court did not err in dismissing 

Wolfson’s quiet title claim.

II. Declaratory Judgment

¶12 Wolfson also sought a declaratory judgment that Mellon has 

no legal interest in his property because MERS had no authority to 

transfer the note. For the same reasons that we affirm the dismissal of 

Wolfson’s quiet title claim, the trial court did not err in dismissing 

Wolfson’s request for declaratory judgment.

III. A.R.S. § 33-420, Arizona’s false recording statute

¶13 Finally, Wolfson appeals the trial court’s dismissal of his 

claim under A.R.S. § 33-420(A). Specifically, Wolfson alleges that 

 

receiving notice of any transfer. The note itself, however, provides for 

transfer without notifying the borrower.

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 92 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

6

Appellees knew or had reason to know that the assignment, substitution 

of trustee, and notice of trustee’s sale were ineffectual because they were 

not “properly notarized.” Specifically, Wolfson points out that the 

recorded documents were signed in the wrong order: first, the notice of 

trustee’s sale; next, the substitution of trustee; and, finally, the 

assignment.3 Because Wolfson presumes that MERS had no authority to 

transfer the note to Mellon, Wolfson also alleges that the recorded 

documents contained material misstatements or false claims.

¶14 This court has recently held that the recorded documents 

that Wolfson challenges fall within the scope of A.R.S. § 33-420(A). See 

Stauffer v. U.S. Bank Nat. Ass'n, 233 Ariz. 22, ¶ 15, 308 P.3d 1173, 1177-78 

(App. 2013); Sitton, 233 Ariz. at 219, ¶ 17, 311 P.3d at 241. Thus, the trial 

court erred by dismissing Wolfson’s complaint on the grounds that such 

documents do not fall within the scope of A.R.S. § 33-420(A). Nonetheless, 

we may affirm the trial court's grant of a motion to dismiss if it is correct 

for any reason. Old Republic Nat. Title Ins. Co. v. New Falls Corp., 224 Ariz. 

526, 530, ¶ 19, 233 P.3d 639, 643 (App. 2010).

¶15 We reject Wolfson’s claim that the recorded documents had 

no effect because they were executed in the wrong order. A recorded 

document is effective if no credibly arguable basis exists to question the 

validity of the document. See Santa Fe Ridge Homeowners' Ass'n v. Bartschi, 

219 Ariz. 391, 395, ¶ 11, 199 P.3d 646, 650 (App. 2008). Although the 

documents were apparently signed in the wrong order, all were signed on 

the same day and recorded in the proper order the following day. More 

importantly, all of the executing entities apparently had the authority to 

sign the recorded documents, so the documents were not void. We also 

reject Wolfson’s contention that material misrepresentation or false claims

exist in the recorded documents because that contention stems from 

Wolfson’s argument that MERS did not have authority to assign the note 

to Mellon. This argument fails for the reasons stated above. Thus, 

Wolfson has not established that the recorded documents contained 

misrepresentations (material or otherwise) or false claims.

 3 Of course, the correct order would have been to sign the assignment to 

Mellon, then Mellon’s substitution of trustee, and finally the substituted 

trustee’s notice of trustee’s sale. 

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 93 of 104
WOLFSON v. B OF A, et al.

Decision of the Court

7

CONCLUSION

¶16 For the foregoing reasons, we affirm the trial court’s 

dismissal of Wolfson’s first amended complaint.

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 94 of 104
EXHIBIT 4

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 95 of 104
·1

·2· · · · · · · · · ·UNITED STATES DISTRICT COURT

·3· · · · · · · · · · · ·DISTRICT OF ARIZONA

·4· ·-----------------------------------------X

·5· ·RONALD WOLFSON,

·6· · · · · · · ·PLAINTIFF,

· · ·vs.

·7· · · · · · · · · · · · · · · · · · · ·No. 3:17-cv-08258-DMF

·8· ·BAYVIEW LOAN SERVICING, LLC;

· · ·THE BANK OF NEW YORK, MELLON FKA

·9· ·THE BANK OF NEW YORK, AS TRUSTEE

· · ·FOR THE CERTIFICATEHOLDERS OF THE

10· ·CWALT, INC., ALTERNATIVE LOAN

· · ·TRUST 2007-17B MORTGAGE

11· ·PASSTHROUGH CERTIFICATES,

· · ·SERIES 2007-17B,

12

· · · · · · · · DEFENDANTS.

13· ·-----------------------------------------X

14

15· · · · · · · · · · DEPOSITION OF MYRON DE SA

16· · · · · · · · · · · · ·Phoenix, Arizona

· · · · · · · · · · · · · September 28, 2018

17· · · · · · · · · · · · · · 9:42 a.m.

18

19· ·ATKINSON-BAKER, INC.

· · ·Arizona Registered Firm R1029

20· ·1.800.288.3376 www.depo.com

21

· · ·REPORTED BY:

22· ·LISA A. NANCE, RPR, CR (AZ)

· · ·Registered Professional Reporter

23· ·Certified Reporter

· · ·Certificate No. 50349

24

· · ·Job No. AC0A115

25

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 96 of 104
·1· · · · · · ·DEPOSITION OF MYRON DE SA, 3(B)(6)

·2· ·DESIGNEE FOR BAYVIEW LOAN SERVICING, LLC, began at

·3· ·9:42 a.m. on September 28, 2018, at Zieve, Brodnax

·4· ·and Steele, 2550 North Central Avenue, Suite 623,

·5· ·Phoenix, Arizona, before Lisa A. Nance, RPR, CR,

·6· ·Certified Reporter, Arizona Certificate Number

·7· ·50349, in and for the State of Arizona, in

·8· ·compliance with ACJA Section 7-206 (J)(3)(b) and

·9· ·pursuant to the Rules of Civil Procedure.

10

11· ·APPEARANCES:

12

13· ·FOR THE PLAINTIFF:

14· ·THE LAW OFFICES OF BETH K. FINDSEN, PLLC

· · ·BY:· MS. BETH K. FINDSEN

15· ·7279 East Adobe Drive, Suite D-12O

· · ·Scottsdale, Arizona 85255

16· ·findsenb@gmail.com

17

18· ·FOR THE DEFENDANTS:

19· ·ZIEVE, BRODNAX & STEELE, LLP

· · ·BY:· MS. KIM LEPORE

20· ·3550 North Central Avenue, Suite 625

· · ·Phoenix, Arizona 85004

21· ·klepore@sbslaw.com

22· · · · · · ·The following proceedings were had:

23

24

25

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 97 of 104
·1· · · · · · · · · · · · · · · · · ·Phoenix, Arizona

· · · · · · · · · · · · · · · · · · ·September 28, 2018

·2· · · · · · · · · · · · · · · · · ·9:41 a.m.

·3

·4· · · · · · · · · · · · · ·MYRON DE SA,

·5· ·called as a witness herein, having been first duly sworn

·6· ·by the Certified Court Reporter, was examined and

·7· ·testified as follows:

·8

·9· · · · · · · · · · · · · ·EXAMINATION

10· ·BY MS. FINDSEN:

11· · · · Q.· ·Good morning.· My name is Beth Findsen, and I

12· ·represent the plaintiff in this lawsuit.· You understand

13· ·that?

14· · · · A.· ·Yes.

15· · · · Q.· ·All right.· And what is your name?

16· · · · A.· ·Myron De Sa.

17· · · · Q.· ·Myron De Sa.· What -- where do you work?

18· · · · A.· ·Bayview Loan Servicing, LLC.

19· · · · Q.· ·What is your position with Bayview?

20· · · · A.· ·My title is litigation manager.

21· · · · Q.· ·What does that entail?

22· · · · A.· ·Basically review all of our business records in

23· ·preparation for trials, depositions, mediations.· I also

24· ·handle a lot of loss mitigation work as well, for our

25· ·borrowers.

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 98 of 104
·1· · · · A.· ·That's correct.

·2· · · · Q.· ·To Countrywide Home Loans, Inc.?

·3· · · · A.· ·That's correct.

·4· · · · Q.· ·And the stamp on the right is signed by

·5· ·Countrywide Home Loans, Inc., correct?

·6· · · · A.· ·That's correct.

·7· · · · Q.· ·And it's blank, right?

·8· · · · A.· ·That's correct.

·9· · · · Q.· ·That's what you call endorsed in blank?

10· · · · A.· ·Correct.

11· · · · Q.· ·If we look at Exhibit 13, which is the Deed of

12· ·Trust, you testified earlier that the only contracts

13· ·between Mr. Wolfson and the lenders for Bayview or BONYM

14· ·would be the note and the mortgage or the Deed of Trust;

15· ·is that correct?

16· · · · A.· ·Correct.

17· · · · Q.· ·So if you look on page 6 of the Deed of Trust,

18· ·paragraph 5, can you read the first two lines of

19· ·paragraph 5 that is entitled "Property Insurance"?

20· · · · A.· ·"Borrower shall keep the improvements now

21· ·existing or hereafter erected on the property insured

22· ·against loss by fire, hazards, including within the term

23· ·extended coverage."

24· · · · Q.· ·Okay.· That's good enough.

25· · · · · · ·And then the first sentence of the next

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 99 of 104
·1· ·paragraph, if you will read that, please?

·2· · · · A.· ·"If borrower fails to maintain any of the

·3· ·coverages described above, lender may obtain insurance

·4· ·coverage at lender's option and borrower's expense."

·5· · · · Q.· ·Then read the second to last sentence in that

·6· ·same paragraph, starting with "any amounts."

·7· · · · A.· ·"Any amounts disbursed by lender under the

·8· ·section F shall become additional debt of borrower

·9· ·secured by security instrument."

10· · · · Q.· ·Section 5, is that right; not section F?

11· · · · A.· ·I'm sorry, Section 5, yes.

12· · · · Q.· ·And then the next page, page 7 of the Deed of

13· ·Trust, paragraph 7 is entitled "Preservation Maintenance

14· ·and Protection of the Property; Inspections;" is that

15· ·correct?

16· · · · A.· ·That's correct.

17· · · · Q.· ·Can you read the first two sentences -- no,

18· ·first three?

19· · · · A.· ·"Borrower shall not destroy, damage or impair

20· ·the property, allow the property to deteriorate or commit

21· ·waste on the property.· Whether or not the borrower is

22· ·residing on the property, borrower shall maintain the

23· ·property in order to prevent the property from

24· ·deteriorating or decreasing in value due to its

25· ·condition."

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 100 of 104
·1· · · · Q.· ·Paragraph 9 is entitled "Protection of Lender's

·2· ·Interest in the Property and Rights Under the Security

·3· ·Interest;" is that correct?

·4· · · · A.· ·That's correct.

·5· · · · Q.· ·And the very first sentence says, "If (A)" --

·6· ·parentheses A -- "borrower fails to perform the covenants

·7· ·and agreements contained in this instrument, then" -- can

·8· ·you start reading from "then"?· "Then lender."

·9· · · · A.· ·Oh, sorry.

10· · · · · · ·"Then lender may do and pay for whatever is

11· ·reasonable or appropriate to protect lender's interest in

12· ·the property and rights under the security instrument,

13· ·including protecting and/or assessing the value of the

14· ·property and securing and/or repairing the property."

15· · · · Q.· ·Okay.

16· · · · · · ·And then the first sentence of the next

17· ·paragraph?

18· · · · A.· ·The same, down here?

19· · · · Q.· ·No.· The first sentence of the next paragraph.

20· · · · A.· ·"Any amounts disbursed by lender under this

21· ·Section 9 shall become additional debt of borrower

22· ·secured by the security instrument."

23· · · · Q.· ·And do you believe that this is what allows

24· ·Bayview and BONYM to advance insurance and other property

25· ·preservation expenses for the borrower?

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 101 of 104
·1· · · · A.· ·Absolutely.

·2· · · · · · ·MS. LEPORE:· That's all I have.

·3· · · · · · ·MS. FINDSEN:· Pass.· We're done.

·4· · · · · · ·(Whereupon, the deposition concluded at

·5· ·approximately 12:38 p.m.)

·6

·7

·8· · · · · · · · · · · · · · *· *· * *

·9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 102 of 104
Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 103 of 104
Atkinson-Baker, Inc.

www.depo.com

September 28, 2018

30(b)(6) Myron De Sa

116

1 STATE OF ARIZONA )

2 COUNTY OF MARICOPA ) SS.

3 BE IT KNOWN that the foregoing proceedings were

4 taken before me; that the witness before testifying was

5 duly sworn by me to testify to the whole truth; that the

6 foregoing pages are a full, true, and accurate transcript

7 of the proceedings, all done to the best of my skill and

8 ability; that the proceedings were taken down by me in

9 shorthand and thereafter reduced to print under my

10 direction.

11 I CERTIFY that I am in no way related to any of the

12 parties hereto nor am I in any way interested in the

13 outcome hereof.

14 Review and signature was requested.

15 I CERTIFY that I have complied with the ethical

16 obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206

17 J(1)(g)(1) and (2).

18 Dated at Phoenix, Arizona, October 17, 2018.

19 ____________________________________________

LISA A. NANCE, RPR, CR

20 Certified Reporter; Arizona CR No. 50349

21 * * * * * * *

22 I CERTIFY that Atkinson-Baker, Inc., Court Reporters

has complied with the ethical obligations set forth in

23 ACJA 7-206 (J)(1)(g)(1) through (6).

____________________________________________

24 ATKINSON-BAKER, INC., COURT REPORTERS:

Arizona Registered Reporting Firm R1029

25

Case 3:17-cv-08258-DWL Document 55 Filed 01/25/19 Page 104 of 104