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File # 17003357 REPLY IN SUPPORT OF 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’ REPLY TO 

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO MOTION FOR

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”), hereby submits this reply to Plaintiff’s 

Response in Opposition to Motion for Summary Judgment (the “Opposition”). 

Plaintiff fails to dispute the facts and law in Defendants’ Motion for Summary 

Judgment (the “Motion”). Instead, Plaintiff again relies on unsupported conclusions. 

/././

/././

Case 3:17-cv-08258-DWL Document 62 Filed 03/12/19 Page 1 of 8
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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

1. The Requests for Admission were Deemed Admitted, and the Matters 

therein Conclusively Established.

Plaintiff argues that the requests for admission propounded on him were not deemed 

admitted because he eventually and untimely provided responses to those requests. Rule 

36(a)(3) is very clear that unless answers or objections to requests for admission are served to 

the requesting party within 30 days of service, the “matter is admitted.” And, once admitted, 

the matter is conclusively established. See, Rule 36(b). Rule 36 does not say that a matter is 

not admitted if the responding party serves answers or objections 30 days after they were 

due, even if the parties do not agree to an extension, and if the responding party does not 

think the requesting party was prejudiced. The rule puts the burden on Plaintiff to file a 

motion asking the Court to withdraw the admissions. Plaintiff was put on notice one year 

ago that the requests were deemed admitted yet Plaintiff did nothing. Defendants refers this 

Court to its Opposition to Plaintiff’s Motion to Withdraw and Amend Rule 36 Responses for 

Defendants’ complete briefing on this issue.

2. Res Judicata Bars in this Action.

Plaintiff claims that res judicata does not apply because this case concerns new claims 

that occurred after the prior litigation was concluded and because this case involves new 

defendants. Plaintiff specifically states that the false recording claims in the prior litigation 

were based on the documents recorded in 2010, which includes the Assignment of Deed of 

Trust assigning the Deed of Trust to BONYM, and not the “later-recorded 2012 Assignment 

and 2017 Substitution of Trustee and Notice of Trustee Sale at issue here.” Doc. 56 at p. 10, 

lines 11-13. However, Plaintiff is challenging BONYM’s standing and authority to foreclose 

on the Subject Property, which is based on the Assignment that the Court of Appeals has 

already ruled was valid.

Plaintiff also allegesthat the 2012 Assignment, 2017 Substitution of Trustee and 2017 

Notice of Trustee’s Sale are “false, misleading, contained material misstatements or false 

claims or were otherwise invalid” because “[t]he assignor lacked an interest to transfer, the 

nominee of the assignor lacked authority to the extent its principal lacked authority to 

Case 3:17-cv-08258-DWL Document 62 Filed 03/12/19 Page 2 of 8
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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

transfer a valid interest in 2012. Doc. 56 at p. 13, lines 9-13. Again, the false recording 

claims are all premises on the alleged invalid assignment of the Deed of Trust from MERS to 

BONYM. 

As explained in the Motion, the 2012 Assignment had no effect on title because 

MERS had already transferred the beneficial interest in the Deed of Trust to BONYM in the 

2010 Assignment. See, Doc. 55 at p. 92, ¶11. Thus, MERS no longer had an interest in the 

Deed of Trust to assign in 2012. Further, because the Court of Appeals has already ruled that 

the 2010 Assignment was valid, and the debt is owed to BONYM, BONYM absolutely has 

standing and authority to foreclose on the Subject Property. Id. Additionally, because the 

assignment was valid, the Substitution of Trustee and Notice of Trustee’s Sale are not false 

and do not contain misstatements or claims. Plaintiff’s repeated challenge to BONYM’s

standing and authority to foreclose is barred by res judicata.

Plaintiff also alleges that this case involves new defendants. Specifically, Plaintiff 

argues that defendants are asserting Plaintiff’s claims are barred by res judicata from “a 

lawsuit in which Defendants were not parties.” See, Doc. 56 at p. 9, line 8. Plaintiff also 

states that “Bayview was not a party [to the prior litigation], nor was Bank of New York 

Mellon.” See, Doc. 56 at 10, lines 9-10; See also, Doc. 56 at p. 11, lines 11 and 14. These 

statements are not true. Bank of New York Mellon or BONYM was a party to the prior 

litigation. The Court of Appeals’ Memorandum Decision clearly shows that Bank of New 

York Mellon was a Defendant/Appellee. See, Doc. 55 at p. 88. 

Furthermore, Plaintiff admits that servicing of the loan transferred from Bank of 

America to Bayview during the appeal. See, Doc. 56 at p. 7. Because Bayview is the 

successor in interest to Bank of America’s interest in the loan that is the subject of this 

lawsuit, privity exists between Bayview and Bank of America. 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.”).

Case 3:17-cv-08258-DWL Document 62 Filed 03/12/19 Page 3 of 8
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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

3. Bayview Responded to Plaintiff’s Written Requests and Not with 

Misrepresentations.

Plaintiff alleges that Bayview failed to adequately respond to alleged qualified written 

requests and misrepresented its authority to foreclose on a “discharged” debt. Plaintiff 

admits, however, in the First Amended Complaint and in the Opposition, that Bayview 

responded to his letters and even to his consumer complaint to the Arizona Attorney General. 

Simply because Plaintiff disagrees with the responses or does not understand the responses or 

the law, does not mean that the responses were inadequate or contained misrepresentations. 

Most of Plaintiff’s allegations in this regard relate to his confusion of the effects of a 

bankruptcy discharge. A bankruptcy discharge merely relieves the debtor from personal 

liability on the note, but the lender may still foreclose on the lien evidenced by the security 

instrument. “A creditor’s lien stays with the property until the foreclosure.” 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.); Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 2154, 115 

L.Ed.2d 66 (1991) (“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.”). 

Despite this long-standing case law, in his Opposition, Plaintiff put in bold type

certain language in Bayview’s responsive letters that he claims is evidence that Bayview 

wrote false information to Plaintiff about his loan being discharged. See, Doc. 56 at p. 7, 

lines 9-10 and 16-29 and p. 8, lines 3, 11 and 14. One of those bolded sentences actually 

explains how Bayview may proceed with foreclosure despite the bankruptcy discharge: 

“Although Mr. Wolfson may no longer have personal liability on the Note, the property is 

still subject to the lien of the security instrument and is subject to foreclose if unpaid.” Doc. 

56 at p. 7, lines 17-19. This is an absolutely true statement of law.

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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Bayview undisputedly responded to Plaintiff’s requests. Further, Bayview’s responses 

did not contain fraudulent misrepresentations. Bayview corrected acknowledged that the debt 

had been discharged in bankruptcy, but also correctly stated that it was still entitled to 

foreclose on the Deed of Trust. Plaintiff has failed to provide any evidence that Bayview 

made any misrepresentations, much less fraudulent misrepresentations.

Finally, Plaintiff’s attempt to introduce new evidence in his Opposition is improper. 

“In deciding a motion for summary judgment, the trial court considers ‘those portions of the 

verified pleadings, deposition, answers to interrogatories and admissions on file which are 

brought to the court's attention by the parties.’ Tilley v. Delci, 220 Ariz. 233, 236, 204 P.3d 

1082, 1085 (Ct. App. 2009) (quoting, Choisser v. State ex rel. Herman, 12 Ariz.App. 259, 

261, 469 P.2d 493, 495 (1970)). Here, Plaintiff attached two letters to his Opposition 

(Exhibits M and N) that he failed to attach to his First Amended Complaint. Plaintiff also 

failed to file an affidavit to support these letters.

Plaintiff alleges that Exhibit M is a “letter on Bayview letterhead” and is an attempt by 

Bayview to collect a debt. Doc. 56 at p. 16, line 23 and p. 15, line 20. Exhibit M is a debt 

validation notice sent to Plaintiff from the foreclosure trustee, not Bayview, and it is not on 

Bayview’s letterhead. See, Doc. 56 at p. 118. Thus, it is not evidence of an attempt to collect 

a debt by Bayview. Exhibit N is six pages of a 27-page unsigned letter that Plaintiff allegedly 

sent to Bayview. Doc. 56 at. P. 120-125. First, Plaintiff alleges that “Defendants did not 

perform a reasonable investigation of the errors.” Doc. 56 at p. 17, lines 3-4. Thus, Plaintiff 

admits that Defendants responded, but fails to provide a copy of the response so this Court 

cannot determine whether the response was adequate. Second, in the unsigned letter, 

Plaintiff states that he has sent multiple qualified written requests because he believes the 

loan was “paid off and therefore neither [Bayview] nor [BONYM] nor CWALT 2007-17CB 

TRUST has any standing to foreclose.” Doc. 56 at p. 121. Loan servicers are not required to 

provide responses to duplicative requests. Moreover, Plaintiff already had two Courts issue 

opinions stating that the debt is owed to BONYM before he sent Exhibit N and the other 

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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

alleged qualified written requests after the Court of Appeals’ decision. Therefore, the request 

for debt validation was duplicative and harassing.

4. There is No Evidence of Acceleration.

Once again, Plaintiff statesincorrect and conclusory statements. Plaintiff cannot create 

disputed issues of facts by making up false facts and false statements allegedly made by 

Defendants.

In his Opposition, he states that Bayview acknowledged in a letter to the Office of the 

Arizona Attorney General that the loan had been accelerated by the prior servicer, Bank of 

America, in 2010. Doc. 56 at p. 2. This is a false statement. That letter does not say 

anything about the loan being accelerated at all! The only mention of 2010 is the statement 

that “[a]fter Mr. Wolfson’s loan was discharged, a foreclosure referral started on November 

18, 2010.” See, Doc. 33-1 at p. 25. This is not an acceleration and certainly not an 

acknowledgment of an acceleration.

Plaintiff also incorrectly alleges that on July 7, 2017, BONYM claimed to be the 

creditor owed on an entire “accelerated balance” of $272,000. See, Doc. 56 at p. 8, lines 13-

14. This is also a false statement. The referenced letter does not mention the word

“accelerated” at all. See, Doc. 56 at p. 118.

Plaintiff further incorrectly alleges that Bank of American sent an “acceleration letter” 

stating that the full amount of the loan would be “automatically accelerated” unless all past 

due payments were made. Doc. 56 at p. 5, line 25-p.6, line 1. This is not true. The letter is 

entitled “Notice of Intent to Accelerate.” It is not an acceleration letter. You do not send a 

notice of intent to do something if they are actually doing that something by sending that 

letter. Further, the letter does not state that the loan would be “automatically accelerated.” 

The letter merely states that the mortgage payments will be accelerated, and foreclosure 

proceedings will be initiated. However, Plaintiff has not presented any admissible evidence 

that the loan was actually accelerated or that he received a letter stating Defendants were 

accelerating the loan. In fact, Plaintiff admits that the 30-day notice of default, as required by 

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File # 17003357 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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.

5. Plaintiff Failed to Address Breach of Contract and Payment/Satisfaction.

Plaintiff fails to address Defendants’ Motion for Summary Judgment as to Plaintiff’s 

Count for Breach of Contract and Payment/Satisfaction. Plaintiff merely states that 

“Bayview relies on deemed admissions.” This is not true. Defendants argue in their Motion 

that Plaintiff’s Count Four for Breach of Contract and Payment/Satisfaction is entirely based 

on wild conclusions and speculation. Defendants also presented evidence that the loan was 

not, in fact, paid off as Plaintiff alleges. See, Doc. 55 at p. 15. 

“If a party fails to property support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact 

undisputed for purposes of the motion....” Rule 56(e). Because Plaintiff failed to address

Defendants’ Motion for Summary Judgment as to Plaintiff’s Count for Breach of Contract 

and Payment/Satisfaction, this Court should consider the fact undisputed.

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 

that this Court enter partial summary judgment, as appropriate, in their favor and against 

Plaintiff. Defendants also request an award of their reasonable attorney’s fees and costs 

incurred in defending this action.

DATED this 12th day of March, 2019.

ZIEVE, BRODNAX & STEELE, LLP

/s/ Joseph J. Tirello

JOSEPH J. TIRELLO

Attorneys for Defendants

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File # 17003357 REPLY IN SUPPORT OF 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

/s/ Courtney Perry

Case 3:17-cv-08258-DWL Document 62 Filed 03/12/19 Page 8 of 8