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) ) ) WELLS FARGO BANK, a national banking ) ) association; AMERICAN SECURITIES ) ) COMPANY; a California Corporation; T.D. ) ) Service Company; A California Corporation; ) ) EBERT APPRAISAL SERVICE INC. a ) BARRY S. FAGAN, an individual; California corporation; 20475 ROCA CHICA DR., MALIBU, CALIFORNIA 90625, real property, in rem, and DOES 1 to 50, INCLUSIVE. Case No. SC112044 DEPT: B JUDGE: Norman P. Tarle NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS -RPD 3 WITH EXHIBITS A - J MEMORANDUM OF POINTS AND AUTHORITIES; CODE OF CIVIL PROCEDURE SECT. 2031.310 & 2031.320 DECLARATION OF BARRY S. FAGAN; DECLARATION OF MICHAEL SOFRIS; SEPARATE STATEMENT; REQUEST FOR MONETARY SANCTIONS AGAINST WELLS FARGO BANK IN THE AMOUNT OF $4,765.00 Barry S. Fagan 20475 Roca Chica Dr. Malibu, CA 90265 Phone (310) 717-1790 Fax (310) 456-6447 email@example.com
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, WEST DISTRICT
DATE FILED: APRIL 1, 2011 TRIAL DATE: None set.
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: ///
NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS
2012 By: Barry S.320 on the grounds that Wells Fargo Bank has refused to produce documents requested by Plaintiff Barry Fagan for which good cause to produce exists.310 & 2031. and imposing monetary sanctions against Wells Fargo Bank in the amount of $4. or as soon thereafter as the matter may be heard in Department B of the above-entitled court. This Motion is made pursuant to Code of Civil Procedure Section 2031. and (3) Wells Fargo Bank lacks substantial justification for their refusals to provide responses and/or documents warranting sanctions against Wells Fargo Bank in the sum of $4. located at 1725 Main Street. pleadings. That Plaintiff requested a stipulation to extend the time to file this motion to compel in order to preserve Plaintiff’s discovery rights but unfortunately was not granted by Defendant. thus necessitating the filing of this motion to compel.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on June 13. Attorney Michael N. and any such other and further evidence and authorities as may be presented prior to or at the hearing on this motion. (Attached hereto and made part hereof as Exhibit J is a meet and confer letter (sent by fax and email) to Kutak Rock LLP dated May 10. 2012 at 8:30 a. and other documents on file in this action. Sofris. Sofris and the concurrently filed Separate Statement of Plaintiff Barry Fagan.00 for its persistent and wrongful obstruction of discovery as referenced in the Declaration of Attorney Michael N. and Declarations of Plaintiff Barry S. In Support of Motion to Compel Further Discovery Responses. the papers. 2012) The motion is based upon this Notice of Motion.765. the attached Memorandum of Points and Authorities.m. CA 90401 plaintiff will move the Court for an order compelling defendant to further respond to produce documents and clarifications of those documents. DATED: May 11. Fagan Plaintiff NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . Fagan. Santa Monica.00.765.
00 for attorneys’ fees associated with this Motion and those actions leading up to this Motion.) Defendant failed to adequately respond to any of Plaintiff’s meet and confer attempts.765. (Fagan Decl.. excuses Defendant’s intentional thwarting of their discovery obligations (indeed. Sofris) II. (See Declaration of Attorney Michael N. ¶ 5. imploring them to provide responses and documents which lie at the very heart of this matter. ¶2. ¶ 10.) On March 28 and April 3.”.” (Fagan Decl.) NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS ..1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. and after weeks of exploring every possible option to resolve this dispute informally. STATEMENT OF FACTS On or about February 21. ¶2. Defendants have still failed to comply with their routine discovery obligations. which all essentially constituted a boiler plate list of objections with blatantly missing substantive information. Plaintiff Barry Fagan has worked diligently to try to reason with Defendant Wells Fargo Bank. 2012. Furthermore. Plaintiff complied with its statutory meet and confer obligations by following up with Wells Fargo Bank’s boilerplate objections with numerous meet and confer emails and letters citing the Defendant’s inadequacies with respect to their discovery responses and asked them to both supplement their responses for Production of Documents as Propounded by Plaintiff”. See Declaration of Barry Fagan (“Fagan Decl. Wells Fargo Bank served both “Objections and inadequate responses to Plaintiff Barry Fagan’s third Set of Requests for Production of Documents Propounded by Plaintiff Barry Fagan. Repeatedly. Plaintiff served its third set of discovery on Defendant Wells Fargo Bank. while obstructing Plaintiff’s efforts to obtain critically necessary discovery. or comply with its own promised compliance. monetary sanctions should be imposed against Defendants for forcing Plaintiff to seek Court intervention to compel Defendants to fulfill their basic discovery responsibilities. Plaintiff Barry Fagan requests that the Court order Defendants to reimburse Plaintiff a sum of $4. because no justification. 2012. (Fagan Decl. Accordingly. substantial or otherwise. 2012. thus necessitating this Motion..) On March 27. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION For the past eight months.
(Fagan Decl. Plaintiff has been forced to file this Motion. California Evidence Code 623 states the following: Whenever a party has. provides accounting information in the course of its business every business day of the week. in any litigation arising out of such statement or conduct. and by contrast continue to suggest minimal. 12 (Please provide all accounting entries relating to Barry S. 2012. and inadequate responses to imperative questions and document requests. Fagan’s LOAN for the period 6/1/2007-12/31-2010. Where is their supporting documentation? Wells Fargo has not identified any line items for their balance sheet and have specifically stated that no part of Plaintiff’s loan is associated with any balance sheet line item for Wells Fargo (RPD2 No. Wells Fargo Bank. That given all of the inconsistencies already uncovered through the discovery process in this case.. limited. the Defendants have refused to supply full and meaningful responses. by his own statement or conduct. Wells Fargo had agreed to supplement some of their responses to Plaintiff’s discovery requests but has failed to honor those obligations. Clearly Wells Fargo must be compelled to . (Fagan Decl. are just a servicer or they have sold the loan to an investor. like all other banks.) Notwithstanding Plaintiff’s repeated requests for substantive responses and documents.) would show whether they own the entire loan. 17. permitted to contradict it. RPD 3 No. & 20 on file herein).. intentionally and deliberately led another to believe a particular thing true and to act upon such belief. and after Wells Fargo Bank’s own failures to comply with its promised supplemental responses. ¶ 10. Accordingly. ¶ 6). but that Defendant refused to meet with Plaintiff at that time. this Motion to Compel Defendant Wells Fargo Bank to further clarify Plaintiff’s discovery requests is more imperative than ever. after over one month of pleading for Wells Fargo Bank to comply with its routine discovery obligations.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS That Plaintiff attempted to schedule an in person meet and confer with Defendant’s counsel on April 4. 18. he is not.
is Wells Fargo Bates marked items WF01994-WF01996 as “Exhibit F” and a Complaint to the Los Angeles County Department of Consumer Affairs as “Exhibit G”. and Fagan Decl.” (12/9/11. as well as in the Declaration of Barry Fagan. In such circumstances. 11/23/11. (Attached hereto and made a part hereof.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 produce private accounting statements.310 authorizes Plaintiff to move to compel further NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . The only reason for Investor No: 175263872 on the Substitution of Trustee is that the ownership of the loan was sold to an unnamed and undisclosed entity and explains why Wells Fargo Bank altered the Plaintiff’s Deed of Trust. and that form and those documents were NOT DISCLOSED OR RELEASED. 2011 Request for Judicial Notice with expert opinion on the altering of Plaintiff’s Deed of Trust on file herein and “Exhibit H”) Plaintiff further alleges on information and belief. As set forth above. Counsel for Defendants have made it abundantly clear that they will take whatever steps are necessary to avoid providing information to Plaintiff necessary for Plaintiff to pursue and exercise its rights in connection with this dispute. Plaintiff Has Repeatedly Made Every Possible Effort In A Good Faith Attempt to Avoid Court Intervention by Trying to Obtain Defendant’s Voluntary Compliance. This conduct has now continued unabated for over two months. Code of Civil Procedure Section 2031. which cannot be construed as being in violation of California Evidence Code 623.. that the Defendant in this action is not the beneficiary due mainly to the discovery that several employees of Wells Fargo Bank had indicated on multiple occasions that it “CONTACTED INVESTORAWAITING RESPONSE. 11/15/11) and a specific reference on 11-152011 which states that a “USER HAS COMPLETED THE CHANGE OF BENEFICIARY FORM” on 11-15-2011. Plaintiff has made numerous good faith attempts to obtain Defendants’ agreement to provide substantive responses and highly relevant documents. ¶ 11) ARGUMENT A. all of which have failed. (See Plaintiff’s December 19.
As fully set forth in the Separate Statement filed concurrently herewith and the Fagan Declaration attached hereto. Clearly. A specific reference on 11-15-2011 states that a “USER HAS COMPLETED THE CHANGE OF BENEFICIARY FORM” on 11-15-2011 and that form and those documents were NOT DISCLOSED OR RELEASED. the production of numerous categories of documents requested in Plaintiff’s third Set of Requests for Production. GOOD CAUSE EXISTS TO ORDER PRODUCTION OF THE REQUESTED DOCUMENTS. Wells Fargo Bank had stated the following in response to Plaintiff’s Interrogatory #17: "Investor Number 175263872 is not an actual entity or investor. is an internal tracking collections number that responding party randomly assigns to each account. 2011. As far as RPD3 Question numbers 6 and 7 are concerned. Wells Fargo’s verified supplemental responses to RPD 3 No. 11. (Exhibit F) On July 12. Wells Fargo Bank has objected to. III. 11/23/11." (See “Exhibit H”) NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . and continues to object to. thus proving unclean hands by Wells Fargo Bank.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responses. and these accounting statements are necessary in order to show that Wells Fargo Bank was at best merely the servicer of Plaintiff loan. Wells Fargo has indicated on multiple occasions that it “CONTACTED INVESTOR-AWAITING RESPONSE. while Code of Civil Procedure Section 2031.320 authorizes Plaintiff to move to compel production of documents that were not released but clearly exist.” (12/9/11. Plaintiff directs your attention to Defendants Bates marked items numbers WF01994-WF01996. 12 still fails to corroborate Wells Fargo Bank’s continued claims of ownership of Plaintiff’s loan.15. the documents requested are either directly relevant to the subject matter of this action or are reasonably calculated to lead to the discovery of admissible evidence. The conduct evidenced above is precisely the type of conduct that the discovery statutes are aimed at remedying. but instead. and accordingly. an order should issue compelling Defendants to immediately produce the requested information and documents. 11) and that it “CHANGED BENEFICIARY” (11/15/2011).
Without being provided with these documents. C. Plaintiff is entirely unable to prosecute its underlying causes of action. Moreover. as the requested documents are in Wells Fargo Bank’s possession or control and not otherwise obtainable by Plaintiff without specifically directing the Plaintiff to this information. Section 2031. Additionally there are plenty of other documents recorded with county records that I have seen that list the investor and in the cases I have seen it always refers to the owner of the note. A. that is absurd.P. There is nothing in any of Plaintiff’s requests that seeks attorney-client privileged information. In my opinion. Under such circumstances. C. especially those used by large organizations. NOR AWAIT ITS RESPONSE IF WHAT WAS PREVIOUSLY STATED UNDER PENALTY OF PERJURY ON JULY 12. (Attached hereto and made a part hereof is Defendants Response to Plaintiff Special interrogatory Number 17 as Exhibit H) FRAUD AND PERJURY WELLS FARGO BANK WOULD HAVE NO REASON TO REACH OUT TO AN INVESTOR THAT DOES NOT EXIST. Especially when a Servicer is involved. the information Plaintiff seeks is unavailable from other sources. and Plaintiff is willing to enter into any sort of protective order deemed necessary by Wells Fargo Bank to protect the confidentiality of such documents. I am familiar with metadata and naming conventions.C. These accounting documents relate to the very heart of this case: whether or not Wells Fargo Bank is entitled to force the future sale of plaintiff’s primary residence through another illegally maintained non-judicial foreclosure. 2011 WAS TRUE! The documents requested by Plaintiff relate primarily to: (1) the true ownership Plaintiff’s loan. B.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s expert has stated the following with respect to that discovery response. They do not use "investor" to reference a department.320 authorizes Plaintiff to NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . the only reason for Investor No: 175263872 on the Substitution of Trustee is that the ownership of your loan was sold to an unnamed and undisclosed entity.
95 Cal. App. which explains how it is impossible for Wells Fargo to not have detailed accounting records for Plaintiff Barry S. TBG Ins. 98 (2002). However. and therefore requests that the Court Order Wells Fargo Bank to produce each of the items set forth in the RPD3 Separate Statement. 179. Superior Court. Kirkland v. In compliance with the meet and confer provisions of the Code of Civil Procedure and this Court’s direct Order. burden is upon health care provider to establish that compilation of requested patient billing records would be unduly burdensome or oppressive). Accordingly.2d 583.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compel the production of such documents. Where. v. Associated Brewers Dist. The fact that there is no alternative source for the information sought is an additional factor in establishing good cause for production. good cause exists for the production of the documents requested by Plaintiff Barry Fagan. Defendants have simply continued their pattern of bad faith obstruction. Moreover. 65 Cal. Superior Court. Person v. the RPD3 Separate Statement addresses each of the original boilerplate objections Wells Fargo Bank has asserted to frustrate Plaintiff’s legitimate discovery efforts. there is no legitimate privilege issue or claim of attorney work product.App. rather than attempt to resolve the dispute. 96 Cal. v. App. generically asserting Discovery Act compliance while simultaneously concealing documents that are blatantly imperative to the outcome of this action. 4th 443. Superior Court. 587 (1967). (See also the April 2. a fiduciary relationship is not required to either state a cause of action for accounting. Farmers Ins. 448 (2002). as here. the burden to show good cause for production is met simply by a fact-specific showing of relevance. App. Once that showing is made. See Teselle v. Fagan’s loan as “Exhibit I”) Here.4th 156. 52 Cal. or required to request an accounting from Wells Fargo Bank. 818 (1997) (in response to proper discovery request. 4th 92. the burden shifts to the party opposing the production to justify the objection. 2012 Affidavit of CPA Shawn P Adamo. Group of Companies. Co. Plaintiff repeatedly attempted to obtain Wells Fargo Bank’s voluntary compliance with their discovery obligations. Services Corp. 4th 813. McLoughlin (2009) 173 Cal. NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS .
P.C.00 in matters relating to meeting and conferring and in the preparation of the instant Motion.” (C. Pursuant to C.765. “The court shall impose a monetary sanction … against any party. which also includes the preparation of the reply brief and preparation for and attendance at the hearing on the Motion. a conclusion compelled by a review of the over two month history of frivolous and abusive objections raised by Wells Fargo Bank. person. Plaintiff has been charged a total of $4. Section 2031.765. California Evidence Code 623 states the following: Whenever a party has. Defendant’s continuing refusal to produce relevant and non-privileged bates marked documents and answer questions properly posed to them lack any justification whatsoever. including attorney's fees. MONETARY SANCTIONS SHOULD BE AWARDED AGAINST DEFENDANTS FOR OBSTRUCTING PLAINTIFF’S LEGITIMATE DISCOVERY EFFORTS.310 (d) provides. Plaintiff seeks the imposition of sanctions against Defendants in an amount not less than $4. As of the date of this Motion.00.” Monetary discovery sanctions include “the reasonable expenses. or attorney who unsuccessfully makes or opposes a motion to compel an inspection demand. Plaintiff Barry Fagan has the undeniable right to obtain relevant bates marked and easily identifiable information from documents in connection with this matter. intentionally and deliberately led another to believe a particular thing true and to act upon such belief. § 2023.C. he is NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . incurred by anyone as a result of that conduct.P. CONCLUSION Defendants cannot be permitted to continue to thwart their obligations to submit to relevant discovery critically necessary for the preparation of Plaintiff’s case.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Again.020). V. Accordingly. by his own statement or conduct. Plaintiff has been forced to expend thousands of dollars in attorneys’ fees in attempting to obtain Defendants’ compliance with their discovery obligations and in the prosecution of this Motion.
(2) As a result of this March 27. Plaintiff NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS . 2012 By: __________________________________ Barry S. and. this Court should both Sanction Wells Fargo Bank for failing to disclose ALL discovery responses to date. Wells Fargo must be compelled to produce both public and private accounting statements. and this honorable Court should deem all of Wells Fargo Bank’s objections waived and to consider all of Wells Fargo Bank’s discovery responses to be untimely and as such Wells Fargo Bank NA should suffer the full consequences for their intended Fraud upon this Court.765. DATED: May . Wells Fargo knows exactly what is being asked of them and either their non disclosures to RPD3 item No.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not. 2012 newly discovered fraud by Wells Fargo Bank.00. Fagan. which can not be construed as being in violation of California Evidence Code 623. in any litigation arising out of such statement or conduct. (on file herein) Accordingly. Plaintiff respectfully requests that the Court issue an order: (1) compelling Defendants to immediately produce the accounting documents requested in Plaintiff’s RPD3 Number 12 with easily identifiable bates marked information as requested in the RPD3 Separate Statement. permitted to contradict it. 12 is without merit and subject to sanctions for discovery abuse or their alleged supplemental responses to items RPD2 item numbers 7 and 19 are without merit and intended to deceive and confuse instead of complying and disclosing. (3) imposing monetary sanctions against Defendants in the amount of $4.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES & CLARIFICATIONS TO THIRD SET OF REQUEST FOR PRODUCTION OF DOCUMENTS .
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