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U.S.C.A. CASE NO. 12-56892 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________ HELEN GALOPE, on behalf of herself and all others similarly situated Plaintiffs-Appellants vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2007 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2007-BR4; WESTERN PROGRESSIVE, LLC; BARCLAYS BANK PLC, BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING; OCWEN LOAN SERVICING, LLC, and DOES 4 through 10, Inclusive Defendants-Appellees ________________________ Appeal from Judgment/Order of the U.S. District Court, Central District of California The Honorable Cormac J. Carney Case No. 8:12-cv-00323-CJC (RNBx) BRIEF OF APPELLEES DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, WESTERN PROGRESSIVE, LLC, AND OCWEN LOAN SERVICING, LLC Robert W. Norman, Jr. (Cal. Bar. No. 232470) Brent A. Kramer, Esq. (Cal. Bar No. 256243) HOUSER & ALLISON 3780 Kilroy Airport Way, Suite 130 Long Beach, CA 90806 Telephone: (562) 256-1675 Facsimile: (562) 256-1685 Attorney for Defendants-Appellees

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and 28(a)(1), the following entities have an interest, financial or otherwise, in the outcome of the litigation: Defendant-Appellee Ocwen Loan Servicing, LLC is a limited liability company, the sole member of which is Ocwen Financial Corporation, a publicly traded company. Defendant-Appellee Western Progressive, LLC, is a limited liability company, the sole member of which is Altisource Portfolio Solutions S.A., a publicly traded company. There are no other known publicly held companies for purposes of disclosure pursuant to Federal Rule of Appellate Procedure 26.1.

DATED: July 5, 2013

HOUSER & ALLISON A Professional Corporation By: /s/ Brent A. Kramer Brent A. Kramer Attorneys for Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4, Western Progressive, LLC, and Ocwen Loan Servicing, LLC

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TABLE OF CONTENTS I. JURISDICTIONAL STATEMENT ....................................................................1 II. STATEMENT OF THE ISSUES ........................................................................2 III. IV. STATEMENT OF THE CASE ........................................................................2 STATEMENT OF FACTS ...............................................................................3

A. HomEq Offered Galope A Loan Modification After She Defaulted On Her Mortgage Loan.........................................................................3 B. After Galope Defaulted On Her Reduced Payments, She Filed For Bankruptcy And An Adversary Action When Non-Judicial Foreclosure Was Initiated. ......................................................................................4 C. Galope Again Filed For Bankruptcy After Foreclosure Was Reinitiated But Her Bankruptcy Case Was Dismissed. ........................................5 D. Galope Moved To Vacate The Dismissal Of Her Chapter 13

Bankruptcy Case Just Before The Trustee's Sale. .................................................5 E. Galope Filed Her Third Bankruptcy Petition In Two Years But This Case Was Likewise Dismissed And The September 1, 2011 Trustee's Sale Was Rescinded. ..............................................................................6 V. SUMMARY OF THE ARGUMENT ..................................................................6 VI. STANDARD OF REVIEW ..............................................................................7

VII. ARGUMENT....................................................................................................9 A. The Trial Court Correctly Granted Summary Judgment on Galopes First Claim For Violation of the Sherman Antitrust Act. ......................9 1. Galope Lacks Article III Standing to Bring An Antitrust Claim Because She Has Not Sustained Any Injury-in-Fact .............................10 a. Galope Lacks Standing under the Lujan Decision. ..................................10 b. Galope Lacks Antitrust Standing..............................................................12
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c. The Consumer Expectations Test is Inapplicable.....................................13 d. The Rational Expectations Test is Inapplicable. ......................................16 2. Galope Has No Evidence That Establishes a Conspiracy ...........................17 B. The Trial Court Correctly Granted Summary Judgment on Galopes Second, Third, and Fourth Claims For Violation of the UCL 17200. ................................................................................................19 1. Galopes UCL Claims Are Contractually and Equitably Barred Against DBNTC. ...................................................................................19 2. DBNTC Cannot Be Vicariously Liable For Galopes UCL Claims Concerning the Modification and the LIBOR .............................22 3. All Of The Alleged Oral Promises Concerning the Modification Are Barred Because The Written Modification Agreement Is A Fully Integrated Document. ....................................................25 4. Galope is Not Entitled to Any Relief Against Defendant DBNTC Under the UCL and Her Damages are Purely Conjectural and Hypothetical............................................................................27 5. Galope is Not Entitled to Restitution Under the UCL. ...............................29 6. Galope Has No Damages For Any UCL Claim Premised on Fraud.............................................................................................................30 7. Galope is Precluded From Restitution For Her UCL Claim Premised on the Trustees Sale. ........................................................................31 C. The Trial Court Correctly Granted Summary Judgment on Galopes Fifth Claim For Violation of the FAL 17500. .....................................32 D. The Trial Court was Correct to Grant Summary Judgment as to Galopes Seventh Claim for Wrongful Foreclosure. ...................................34 1. Galopes Wrongful Foreclosure Claim is Moot and Galope Has No Damages Because There Was No Equity in the Property. ..................34
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2. Galope Did Not Give Any Notice to Western Progressive, the Foreclosure Trustee, of Her Bankruptcy Reinstatement Prior to the Trustees Sale. .........................................................................................36 E. The Trial Court was Correct to Grant Summary Judgment as to Galopes Eighth Claim for Breach of Good Faith and Fair Dealing. ..........37 VIII. CONCLUSION ..............................................................................................40

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TABLE OF AUTHORITIES Cases Alaska v. United States, 201 F.3d 1154 ...................................................................14 Allen v. Wright, 468 U.S. 737 ..................................................................................10 Amarel v. Connell, 102 F.3d 1494 .................................................................... 10, 12 American Tobacco Co. v. U.S., 328 U.S. 781 ..........................................................17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242..........................................................9 Arizonans for Official English v. Arizona, 520 U.S. 43 ..........................................34 Assn. v. Schwarzenegger, 556 F.3d 950 ....................................................................7 Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 536 n. 33, 103 S.Ct. 897 ..........................16 Barker v. Lull Engineering Co. 20 Cal.3d 413 ........................................................15 Bradstreet v. Wong, 161 Cal.App.4th 1440 .............................................................29 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474 ........................8 Celotex Corp. v. Catrett, 477 U.S. 317 ......................................................................8 Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163.......................................................................................................22 Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042 .........................................23 City of Erie v. Paps A.M., 529 U.S. 277 .................................................................34 City of Hope Nat. Medical Center v. Genentech Inc., 43 Cal.4th 375 ....................19 Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480 ...............................................18 Emery v. Visa Intl Serv. Assn, 95 Cal.App.4th 952...............................................23 F.T.C. v. Neovi, Inc., 604 F.3d 1150 ........................................................................18 Foley v. Interactive Data Corp., 47 Cal.3d 654 ......................................................37 FPI Development, Inc. v. Nakashima, 231 Cal.App.3d 367 ....................................26 Freeman v. San Diego Association of Realtors, 322 F.3d 1133 ..............................13
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Gerlinger v. Amazon.com Inc., 526 F.3d 1253 ................................................. 10, 12 Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 ..................................................................37 Harmsen v. Smith, 693 F.2d 932 ..............................................................................18 Harper v. 24 Hour Fitness, Inc., 167 Cal.App.4th 966 ...........................................27 In re Ramirez, 183 BR 573 ......................................................................................32 Kim v. Regents of the University of California, 80 Cal.App.4th 160 ......................37 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134...............................29 Kraus v. Trinity Mgmt. Servs., 23 Cal.4th 116 ........................................................29 Kwikset Corp. v. Superior Court, 51 Cal.4th 310 ....................................................28 Lovell v. Chandler, 303 F.3d 1039 ............................................................................7 Lujan v. Defenders of Wildlife, 504 U.S. 555 ..........................................................10 Masterson v. Sine, 68 Cal.2d 222 ............................................................................26 Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574...................................9 McDonald v. Coldwell Banker, 543 F.3d 498 .........................................................23 Metoyer v. Chassman, 504 F.3d 919 .......................................................................26 Munger v. Moore, 11 Cal.App.3d 1, 7-8, n. 6..........................................................34 Neubronner v. Milken, 6 F.3d 666 ...........................................................................30 Orloff v. Metro Trust Co., 17 Cal.2d 484 ................................................................18 Padgett v. Wright, 587 F.3d 983 ..............................................................................14 People v. Toomey, 157 Cal.App.3d 1 .....................................................................23 People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509................23 Perfect 10, Inc. v. Visa Intern. Service Assn, 494 F.3d 788 ...................................23 Pollyana Homes, Inc. v. Berney, 56 Cal.2d 676 ......................................................25 POM Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 ........................................28 Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal.App.4th 638 ..........................22 R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139 ........................16 Recinto v. U.S. Dept of Veterans Affairs, 706 F.3d 1171 .......................................39
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Salehi v. Surfside III Condominium Owners Assn., 200 Cal.App.4th 1146 ...........20 See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 ...........................10 Sipe v. Countrywide Bank, 690 F.Supp.2d 1141 .....................................................23 Small v. Fritz Companies, Inc., 30 Cal.4th 167 .......................................................30 Smith v. Marsh, 194 F.3d 1045 ................................................................................14 Soule v. General Motors Corp., 8 Cal.4th 548 ........................................................16 Susilo v. Wells Fargo Bank, 796 F.Supp.2d 1177 ...................................................39 Symbersound Records, Inc. v. UAV Corp., 517 F.3d 1137......................................23 Tozzi v. Lincoln Nat. Life Ins. Co., 103 F.2d 46 ......................................................20 Valdez v. Rosenbaum, 302 F3d 1039 .........................................................................7 Walker v. Truck Ins. Exchange, Inc., 11 Cal.4th 1 ..................................................37 West v. Secretary of Dept. of Transp., 206 F.3d 920 ...............................................34 Statutes 28 U.S.C. 1291 ........................................................................................................1 28 U.S.C. 1331 ........................................................................................................1 28 U.S.C. 1332 ........................................................................................................1 Cal. Bus. & Prof. Code 17200 ..............................................................................22 Cal. Bus. & Prof. Code 17204 ..............................................................................27 Cal. Bus. & Prof. Code 17500 ......................................................................... 2, 33 Cal. Bus. Prof. Code 17203 ................................................................................27 Fed. R. Civ. P. 56(a)...................................................................................................8 Fed. R. Civ. P. 56(c)(1) ..............................................................................................8 Fed. R. Civ. P. 9(b) ..................................................................................................30 UCL 17200 ..............................................................................................................2 Other Authorities Sherman Antitrust Act 1 .....................................................................................2, 9
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I.

JURISDICTIONAL STATEMENT

Pursuant to Ninth Circuit Rule 28-2.2, Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007BR4 (DBNTC), Western Progressive, LLC (Western Progressive), and Ocwen Loan Servicing, LLC (Ocwen), submit the following statement of jurisdiction: a. The United States District Court, Central District of California (the

Trial Court), had subject matter jurisdiction over this case pursuant to 28 U.S.C. 1331 (federal question jurisdiction) and 28 U.S.C. 1332 (diversity jurisdiction). b. The Court of Appeals for the Ninth Circuit has jurisdiction over this

appeal because the summary judgment order appealed was a final decision pursuant to 28 U.S.C. 1291 (jurisdiction over appeals of final decisions of district court). c. The United States District Court, Central District of California,

entered an Order granting summary judgment in this case on September 26, 2012. Galope filed her Notice of Appeal of the Order on October 16, 2012. Galopes appeal was timely filed within 30 days from the date of entry of the judgment or order appealed from.

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II.

STATEMENT OF THE ISSUES

Whether the Trial Court erred in granting Defendants-Appellees DBNTC, Western Progressive, and Ocwens Motion for Summary Judgment, and entering its Order thereon. III. STATEMENT OF THE CASE

On July 20, 2012, Galope filed a Third Amended Complaint (TAC) against Defendants-Appellees DBNTC, Western Progressive, and Ocwen, and others. Galope alleged claims against DBNTC, Western Progressive, and Ocwen for: (1) Violation of the Sherman Antitrust Act 1 (Price Fixing); (2) UCL 17200 Violation; (3) UCL 17200 Violation; (4) UCL 17200 Violation; (5) FAL Violation of 17500; (6) Wrongful Foreclosure; (7) Breach of Good Faith and Fair Dealing. See EOR 1599-1643. On August 6, 2012, DBNTC, Western Progressive, and Ocwen filed a Motion for Summary Judgment. Plaintiff filed an Opposition to the Motion for Summary Judgment on August 13, 2012. See EOR 1291-1325. The Court granted the Motion for Summary Judgment in its entirety on September 26, 2012. See EOR 1-11.

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IV.

STATEMENT OF FACTS

A.

HomEq Offered Galope A Loan Modification After She Defaulted On Her Mortgage Loan. On December 16, 2006, Galope borrowed $522,000.00 from lender New

Century Mortgage Corporation. See EOR 1331; 1374; 1382-1387. Under the terms of the loan, Galopes monthly mortgage payment was $3,817.13 and her interest rate of 8.775% could change beginning in January 2009 based on a calculation involving the LIBOR. See EOR 1331; 1374; 1382-1387. The loan was secured by a Deed of Trust recorded against the subject real property on December 28, 2006. See EOR 1331; 1374-75; 1388-1408. In April 2007, HomEq began to service the loan. See EOR 1331; 1375. By April 2008, Galope was $15,951.62 in arrears on the loan. See EOR 1331-32; 1375. In April 2008, HomEq offered Galope a loan modification, which she accepted, and this agreement was memorialized in writing (Modification Agreement). See EOR 1332; 1375; 140912. Under the terms of the Modification Agreement, the total monthly mortgage payment was reduced by roughly $800.00 to $3,027.02 per month for a period of five years, including escrow, and the interest rate was fixed at 5.5% to maturity. See EOR 1332; 1375; 1409-12. The Modification Agreement provides that the monthly payment will increase beginning May 1, 2013 to ensure the entire debt is

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paid at maturity. See EOR 1332; 1375; 1409-12. The Modification Agreement included a release and integration clause. See EOR 1332; 1375; 1409-12. B. After Galope Defaulted On Her Reduced Payments, She Filed For Bankruptcy And An Adversary Action When Non-Judicial Foreclosure Was Initiated. On April 8, 2009, Galope made her last modified payment. See EOR 1332; 1375; 1413-1414. This only brought the loan contractually current through March 1, 2009 because Galope had only made three out of the four required payments from January 1, 2009 through April 8, 2009. See EOR 1332; 1375; 1413-1414. Given the continued default, non-judicial foreclosure was initiated on July 31, 2009. See EOR 1375; 1415-1420. From April 2008 through July 2009, Galope did not contact HomEq to specifically complain that she was only given an incomplete copy of the Modification Agreement. See EOR 1375. On January 5, 2010, Galope filed for Chapter 7 bankruptcy. See EOR 1332; 1379; 1424-1477. On February 25, 2010, Galope also filed a bankruptcy adversary action against Deutsche Bank and HomEq. See EOR 1379; 1478-1507. This adversary action was dismissed on April 14, 2010. See EOR 1379; 1508-13. On April 28, 2010, Galope received her discharge in the Chapter 7 bankruptcy. See EOR 1379-80; 1514-16. The foreclosure initiated on July 31, 2009 was rescinded on May 11, 2010. See EOR 1376; 1422-23. 4

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C.

Galope Again Filed For Bankruptcy After Foreclosure Was Reinitiated But Her Bankruptcy Case Was Dismissed. Given that Galope had not made a modified payment since April 2009, non-

judicial foreclosure was reinitiated on March 8, 2011. See EOR 1375; 1377; 141314; 1517-21. In response, Galope filed for Chapter 13 bankruptcy on July 11, 2011. See EOR 1380; 1531-40. However, this Chapter 13 bankruptcy was

dismissed and the automatic stay vacated on August 17, 2011 because Galope failed to file the required documents. See EOR 1380; 1541-42. D. Galope Moved To Vacate The Dismissal Of Her Chapter 13 Bankruptcy Case Just Before The Trustee's Sale. On September 1, 2011, the property sold at trustee's sale to DBNTC. See EOR 1377-78; 1522-26. However, on August 30, 2011, just before the trustee's sale, the bankruptcy court reinstated Galopes Chapter 13 case after she moved to vacate the dismissal. See EOR 1380; 1543-45. Galope did not give any notice to WPT, the foreclosure trustee, that her bankruptcy case had been reinstated. See EOR 1378. The Chapter 13 bankruptcy was ultimately again dismissed on

December 16, 2011. See EOR 1380; 1546-47. /// /// /// 5

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E.

Galope Filed Her Third Bankruptcy Petition In Two Years But This Case Was Likewise Dismissed And The September 1, 2011 Trustee's Sale Was Rescinded. Galope again filed for Chapter 7 on January 17, 2012, her third bankruptcy

petition in a span of two years. See EOR 1380-81; 1548-93. However, Galopes attempt to convert this Chapter 7 to a Chapter 13 was denied and this bankruptcy case was dismissed on March 13, 2012. See EOR 1381; 1594-98. On March 27, 2012, the rescission of the September 1, 2011 trustee's sale was recorded. See EOR 1378; 1527-30. V. SUMMARY OF THE ARGUMENT

The Trial Court correctly granted the Motion for Summary Judgment, which was filed by DBNTC, Western Progressive, and Ocwen. The undisputed evidence shows that Galope did not suffer an injury-in-fact sufficient to confer Article III standing. Galope alleges that DBNTC, Western Progressive, and Ocwen were involved in manipulating the LIBOR rate, which in turn caused Galope to pay a higher interest rate on her Loan. However, Galopes Loan was never subject to the LIBOR rate. Galopes Loan originated in December, 2006. Galope stopped

making payments on her Loan before her Loan became an adjustable rate Loan in January 2009. Galope received a fixed 5.5% interest rate loan modification in

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April 2008 from HomEq. Therefore, the LIBOR rate was never used to calculate payments due from Galope. Galopes other main theory is that DBNTC, Western Progressive, and Ocwen sent her a Loan Modification Agreement by facsimile, but purportedly sandwiched legal paper between regular size paper, and that terms were cut off from the transmission. Galope has no evidence that any of the above defendants were involved in the loan modification agreement transmission. Even if they were, the Loan Modification Agreement terms meant that her Loan would not be subject to the LIBOR rate until May, 2013 at the earliest. Galope did not suffer any injury-in-fact from the purported fax transmission scheme. For these reasons, and all of the reasons set forth below, the Trial Court was correct to grant the Motion for Summary Judgment filed by DBNTC, Western Progressive, and Ocwen. VI. STANDARD OF REVIEW

An order granting or denying summary judgment generally is reviewed de novo. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). The reviewing court must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Valdez v. Rosenbaum, 302 F3d 1039, 1043 (9th Cir. 2002). Summary judgment may be affirmed on any ground supported by the record. See Video Software Dealers

Assn. v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009). 7

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Federal Rule of Civil Procedure 56(a) mandates that [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of establishing the

absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal quotation marks and citations omitted). In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. Id. In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party need not produce any evidence or prove the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 325. Rather, the moving party's initial burden may be discharged by showing that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case. Id. Once the moving party meets its initial burden, the party asserting that a fact cannot be or is genuinely disputed must support the assertion. Fed. R. Civ. P. 56(c)(1). The mere existence of a scintilla of evidence in support of the 8

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[nonmoving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (Anderson); accord Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ([O]pponent must do more than simply show that there is some metaphysical doubt as to the material facts.). Further, [o]nly disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment [and] [f]actual disputes that are irrelevant or unnecessary will not be counted. Anderson, 477 U.S. at 248. At the summary judgment stage, a court does not make credibility determinations or weigh conflicting evidence. See id. at 249. A court is required to draw all inferences in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587. VII. ARGUMENT A. The Trial Court Correctly Granted Summary Judgment on Galopes First Claim For Violation of the Sherman Antitrust Act. Galopes first claim is for violation of the Sherman Antitrust Act 1 (Price Fixing) against Barclays Bank PLC, Barclays Capital Real Estate, Inc. d/b/a HomEq Servicing, and DBNTC. See EOR 1616-18. Galopes antitrust claim fails because she lacks standing to bring the claim, as she has no evidence of any

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injury-in-fact. Furthermore, Galopes claim fails because she has no evidence of any conspiracy. 1. Galope Lacks Article III Standing to Bring An Antitrust Claim Because She Has Not Sustained Any Injury-in-Fact Galope has no evidence to establish she sustained any injury-in-fact. Article III standing requires proof of injury-in-fact and causation. Allen v.

Wright, 468 U.S. 737, 750 (1984). For Article III purposes, an antitrust plaintiff establishes injury-in-fact when she has suffered an injury which bears a causal connection to the alleged antitrust violation. Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1996). Where an injury-in-fact cannot be established, summary judgment of the plaintiffs antitrust claim based on Article III grounds is proper. Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255-56 (9th Cir. 2008). Furthermore, Galope must adequate demonstrate Article III standing of an injuryin-fact before even reaching the issue of antitrust standing. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). For the reasons set forth below, Galope has not offered sufficient evidence that she has standing. a. Galope Lacks Standing under the Lujan Decision. In her Opening Brief, Galope argues that, under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Lujan), she has adequately alleged standing based on an injury-in-fact. See Opening Brief, p.30. Galope argues that she 10

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meets the standing requirement under Lujan because general factual allegations of injury resulting from the defendants conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. Galope ignores the fact that the Court granted summary judgment, not a motion to dismiss, based on a lack of evidence of any injury-in-fact. Furthermore, Galopes quotation from Lujan was taken out of context. The Lujan court wrote, as follows: At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. [citation omitted]. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, Fed.Rule Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. [citation omitted].

Without any actual evidence of any injury-in-fact caused by the conduct of Defendants-Appellees DBNTC, Western Progressive, and Ocwen, Galope cannot prevail on summary judgment on her antitrust claim. In the Opening Brief, Galope contends that she need not establish Article III standing because agreements to fix prices in interstate commerce are 11

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unlawful per se. See Opening Brief, p.24. This is not so. The injury-in-fact requirement is mandatory, not optional, for a private plaintiff to bring an antitrust claim. Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1996); see also

Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255-56 (9th Cir. 2008). Galope has no evidence that establishes she sustained an injury-in-fact as a result of Barclayss alleged manipulation of the LIBOR because the interest rate on her mortgage loan was not affected by the LIBOR. Under the terms of the original loan obtained in December 2006, Galopes interest rate of 8.775% could change beginning in January 2009 based on a calculation involving the LIBOR. See EOR 1374, 1383-84. However, before the interest rate could change based on a calculation involving the LIBOR, Galope received a fixed 5.5% interest rate loan modification in April 2008 from HomEq. See EOR 1374, 1409-12. As such, Galope has not sustained any injury-in-fact as a result of the alleged LIBOR manipulation because the interest rate on her specific mortgage loan was fixed before it could ever be adjusted based on a calculation involving the LIBOR. Galope lacks Article III standing because she has no measurable damages related to the conduct of which she complained. b. Galope Lacks Antitrust Standing. In her appeal, Galope argues that she has standing to sue under the antitrust laws. She argues that she lost the opportunity to obtain financing of her home 12

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based on an independent market rate. See Opening Brief, p. 25. Galope, offered no evidence, either in Opposition to the Motion for Summary Judgment, or elsewhere in her Appeal, that her 8.775% interest rate was higher than it should have been had the alleged LIBOR-rate manipulation not occurred. Additionally, Galope offered no evidence that there were non-LIBOR based loans she could have obtained at a lower initial interest-rate. The only evidence presented by Galope is that the purported LIBOR manipulation impacted the adjustable-rate interest that she would have paid after the initial two years of fixed-interest payments. See EOR 125-28. c. The Consumer Expectations Test is Inapplicable. Galope argues that her consumer expectations were not taken into account and therefore, she suffered injury as a result of the conduct of Defendants-Appellees DBNTC, Ocwen, and Western Progressive. See Opening Brief, pp. 26-27. Galope asserts she has standing according to the case of

Freeman v. San Diego Association of Realtors, 322 F.3d 1133 (9th Cir. 2011) (Freeman). This case, which does not appear anywhere in her Opposition to the Motion for Summary Judgment, see EOR 1291-1325, never discusses or even mentions the so-called consumer expectations test. Nor was the consumer expectations test ever discussed in Galopes Opposition to the Motion for Summary Judgment. See EOR 1291-1325. This Court should decline to consider 13

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issues raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009) (Padgett); Alaska v. United States, 201 F.3d 1154, 116364 (9th Cir. 2000); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (Smith). Furthermore, in Freeman, unlike here, the Plaintiffs-Appellants suffered a concrete and direct injury. The Plaintiffs in Freeman were real estate agents who subscribed to the Multiple Listing Service (MLS) operated by a corporation called Sandicor, which let the agents share information about real estate properties on the market with the help of a computerized database. See Freeman, 322 F.3d at 1140-1141. Each real estate agent, in order to use the MLS database, was required to pay a subscription fee. See id. at 1141. Real estate associations were responsible for signing up new the agents who subscribed, and collecting these fees, but Sandicor determined the fees agents must pay to subscribe. Id. The local real estate associations also provided support services to the subscribers, and received a fee from Sandicor in return for the services. Id. The Freeman court held, first, that the support service payments made from Sandicor to the real estate associations was being fixed at a higher rate than the market would have otherwise permitted for some of the associations. See id. at 1145. In turn, the Plaintiffs were harmed because those inflated service fees were then passed onto the actual agent subscribers, including the named 14

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Plaintiffs. See id. at 1147 (Sandicor passed on some portion of that inflated support fee to agents, who paid higher prices for the MLS as a result. This is precisely the type of injury the antitrust laws are designed to prevent.) In summary, there was an actual, concrete, direct harm to the Plaintiffs in Freeman (in the form of artificially inflated fees) that is absent in the current case before the Court. There is no evidence that the purported antitrust violation caused Galope to pay a higher interest rate than she otherwise would have paid. While Galope urges this Court to adopt the consumer expectations test to conclude that she suffered an injury-in-fact, she offers no reason why the Court should do so here. See Opening Brief, pp.26-27. The consumer-expectations test is exclusively a product liability doctrine relating to product safety. The

consumer expectations test is satisfied when the evidence shows that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Barker v. Lull Engineering Co. 20 Cal.3d 413, 429, 143 (Cal. 1978). Not one Court in the United States has ever applied the consumer expectations test in the context of an antitrust claim. The Court should also reject Galopes argument that the consumer expectations test should apply here due to the esoteric scientific nature of the loan at issue. See Opening Brief, p.27. Galopes attempted analogy is

unpersuasive. The consumer expectations test is reserved for cases in which the 15

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everyday experience of the products users permits a conclusion that the product's design violated minimum safety assumptions, and is defective regardless of expert opinion about the merits of the design. Soule v. General Motors Corp., 8 Cal.4th 548 (Cal. 1994). This test would not fit in the context of a mortgage loan case like the case at bar. d. The Rational Expectations Test is Inapplicable. Galope also urges the Court to adopt the rational expectations test to conclude she has shown evidence of an injury-in-fact caused by DefendantsAppellees DBNTC, Western Progressive, and Ocwen. See Opening Brief, pp.2730. Again, Galope raises this argument for the first time on appeal, which is improper. Galope also fails to point to a single California case employing the rational expectations test to a damages claim under the antitrust laws. Galope argues for the first time on appeal that she has standing based on the target area test. Even assuming consideration of this argument were proper, Galopes claims lack merit. The so-called target area test has been discredited, both by the U.S. Supreme Court, and the Ninth Circuit Court of Appeals. See Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 536 n. 33, 103 S.Ct. 897 (1983) (stating that the Court's antitrust injury analysis is intended to replace target area test); see R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139, 146 (9th Cir. 1989) 16

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(holding that the target area test is no longer good law in the Ninth Circuit following Associated General Contractors). Galope also argues that she was purportedly harmed by being locked in a 30 year loan that was not due to expire until January 2036. See Opening Brief, pp.31-32. But Galope never made this argument at the summary judgment stage, and did not cite any of the case law she now presents for the first time on appeal. Notwithstanding the fact that she should not be permitted to make these arguments for the first time on appeal, the argument itself is fatally flawed. Galope was not locked into her loan. She modified the loan in April 2008. See EOR 1375; 1409-12. Under the terms of the Modification Agreement, the total monthly mortgage payment was reduced by roughly $800.00 to $3,027.02 per month for a period of five years, including escrow, and the interest rate was fixed at 5.5% to maturity. See EOR 1375; 1409-12. 2. Galope Has No Evidence That Establishes a Conspiracy

Galope has no evidence to support her conspiracy theory against DBNTC regarding the alleged LIBOR manipulation. For a civil conspiracy claim, the plaintiff must establish that the alleged conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement. American Tobacco Co. v. U.S., 328 U.S. 781, 810 (1946). A civil conspiracy is a combination of two or more persons who, by some concerted 17

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action, intend to accomplish some unlawful objective for the purpose of harming another which results in damage. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482, n. 3 (9th Cir. 1984). The plaintiff must establish the formation and operation of the alleged conspiracy and the damage resulting from the acts or acts done in furtherance of the plan. Orloff v. Metro Trust Co., 17 Cal.2d 484, 488 (Cal. 1941). In order to find liability for aiding and abetting, there must be (1) the existence of an independent primary wrong, (2) actual knowledge by the alleged aider and abettor of the wrong and his or her role in furthering it, and (3) substantial assistance in the wrong. Harmsen v. Smith, 693 F.2d 932, 943 (9th Cir. 1982). The district court need not find a genuine issue of fact if a declaration is uncorroborated and self-serving. F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010). Here, Galope has no evidence that establishes defendant DBNTC had a meeting of the minds with Barclays regarding the alleged manipulation of the LIBOR. Galope has no evidence that establishes any formation or operation of a conspiracy between these parties. Further, Galope has no evidence that DBNTC had actual knowledge of the alleged wrong and substantially assisted in the alleged wrong. Galopes purported evidence merely consists of uncorroborated and self-serving conclusions. Just because DBNTC in its corporate capacity is one of sixteen institutions that participate in submission of index rates does not 18

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mean this defendant manipulated the LIBOR with Barclays. See EOR 1603; 1616. Galopes conspirator liability theory against defendant DBNTC is

completely unsupported by evidence and cannot be the foundation for finding liability. B. The Trial Court Correctly Granted Summary Judgment on Galopes Second, Third, and Fourth Claims For Violation of the UCL 17200. 1. Galopes UCL Claims Are Contractually and Equitably Barred Against DBNTC. In her TAC, Galope alleges several claims for violation of California Business & Professions Code sections 17200 et seq., the Unfair Competition Law (UCL). See EOR 1618-28. For the following reasons, the Trial Court was correct to grant summary judgment in favor of DBNTC, Western Progressive, and Ocwen. First, Galopes UCL claim fails because Galope released this claim as part of the loan modification agreement. In return for receiving the loan modification in April 2008, Galope released all of her UCL claims related to the origination and the servicing of the loan. The interpretation of the preclusive effect of a release in a contract is a legal question for the court if there is no conflicting competent extrinsic evidence as to the parties intent. City of Hope Nat. Medical Center v. Genentech Inc., 43 Cal.4th 375, 395 (Cal. 2008); see also Salehi v. 19

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Surfside III Condominium Owners Assn., 200 Cal.App.4th 1146, 1159-60 (Cal. Ct. App. 2011). Under Californias law of quasi-estoppel, a person may not act in a manner inconsistent with her prior position to the injury of another if that person gained some advantage for herself to the disadvantage of the other. Tozzi v. Lincoln Nat. Life Ins. Co., 103 F.2d 46, 52 (9th Cir. 1939). In this case, Galope is contractually barred from suing DBNTC concerning the origination and servicing of the loan because the release provision in the Modification Agreement provides as follows: Borrower releases HomEq, its subsidiaries, affiliates, agents, officers and employees, from any and all claims, damages or liabilities of any kind existing on the date of this Agreement, which are in any way connected with the origination and/or servicing of the Loan, and/or events which resulted in Borrower entering into this Agreement. Borrower waives any rights which Borrower may have under federal or state statute or common law principle which may provide that a general release does not extend to claims which are not know to exist at the time of execution, including without limitation (if applicable), California Civil Code Sec. 1542. (Decl. of Stacy, Para. 7, Exh. 3, No. 3). HomEq serviced the subject mortgage loan for DBNTC. See EOR 1374. As such, the release provision in the Modification Agreement precludes Galopes UCL claims against DBNTC concerning the origination or the servicing of the loan. The release language covers any and all claims, damages, or liabilities of any kind, whether known at the time of execution of or not, related to the 20

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origination and the servicing of the loan. The meaning of the release language is plain and unambiguous. Galope received the fixed interest rate loan modification and in return signed the release, thus is contractually barred from suing DBNTC in the instant action. Further, estoppel by contract, i.e. quasi-estoppel, bars all of Galopes UCL claims concerning the origination or servicing of the loan. When Galope was given the loan modification in April 2008, she was $15,951.62 in the arrears. See EOR 1375. The modification effectively cured the default on the loan and

allowed Galope to make reduced mortgage payments, thereby preventing foreclosure. In return for the modification, Galope released all of her claims concerning the origination and servicing of the loan. See EOR 1375; 1409-1412. Galope is barred from now asserting her UCL claims because she benefitted from the modification and because foreclosure was not initiated in April 2008 as a result of the modification. In Appellants Opening Brief, she completely ignores the arguments relating to release based on the April 2008 Modification Agreement. Even if the Court considers Galopes argument in Opposition to the Motion for Summary Judgment, Galopes UCL claim is barred based on the release she signed. In her Opposition to the Motion for Summary Judgment, Galope argues that the release is invalid because a release cannot include future torts like fraud. See EOR 129121

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1325. However, the conduct that Galope complains about (i.e., purported LIBOR manipulation) did not occur only after she executed the loan modification agreement in 2008, but rather, purportedly occurred at the time of loan origination back in 2006. 2. DBNTC Cannot Be Vicariously Liable For Galopes UCL Claims Concerning the Modification and the LIBOR Second, Galopes UCL claim fails because Galope has no evidence that defendant DBNTC personally committed any unlawful, unfair, or fraudulent acts under the UCL concerning the modification and the alleged LIBOR manipulation, and said DBNTC cannot be vicariously liable under the statute, as a matter of law. The UCL prohibits unfair competition including any unlawful, unfair or fraudulent business act or practice. Cal. Bus. & Prof. Code 17200. Given the statute is written in the disjunctive, each of the three prongs is a separate and distinct theory of liability. Cel-Tech Communications, Inc. v. Los Angeles

Cellular Tel. Co., 20 Cal.4th 163, 180 (Cal. 1999). The UCL does not proscribe specific activities, but broadly prohibits any (1) unlawful, (2) unfair, or (3) fraudulent business act or practice. Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal.App.4th 638, 643-644 (Cal. Ct. App. 2008). As to the unlawful prong, the UCL incorporates other laws and treats violations of those laws as unlawful business practices independently actionable 22

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under state law. Sipe v. Countrywide Bank, 690 F.Supp.2d 1141, 1158 (E.D. Cal. 2010) (citing Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000). An unfair business practice is one that either offends an established public policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008) (quoting People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (Cal. Ct. App. 1984). Finally, fraudulent acts are ones where members of the public are likely to be deceived. Symbersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1152 (9th Cir. 2008). The concept of vicarious liability has no application to actions brought under the unfair business practices act. People v. Toomey, 157 Cal.App.3d 1, 14 (Cal. Ct. App. 1984). Rather, [a] defendants liability must be based on his personal participation in the unlawful practices and unbridled control over the practices that are found to violate sections 17200 or 17500. Emery v. Visa Intl Serv. Assn, 95 Cal.App.4th 952, 960-1 (Cal. Ct. App. 2002) (Emery). A defendant cannot be secondarily liable liable under the UCL. Perfect 10, Inc. v. Visa Intern. Service Assn, 494 F.3d 788, 808-809 (9th Cir. 2007). Here, Galope has no evidence that DBNTC individually committed any unlawful, unfair, or fraudulent acts. The conduct complained of concerning the circumstances surrounding the April 2008 modification only concerned HomEq, 23

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who serviced the loan for DBNTC. See EOR 1374. Galope has no evidence that defendant DBNTC personally and directly serviced Galopes loan, and vicarious or secondary liability is expressly prohibited under the UCL. Galope likewise has no evidence that DBNTC manipulated the LIBOR. Galope cannot hold defendant DBNTC vicariously or secondarily liable for the alleged manipulation of the LIBOR by Barclays. The two are distinct and separate entities and the UCL does not allow for any relief against defendant DBNTC vicariously. Galopes

uncorroborated and self-serving conclusions are insufficient to survive summary judgment. Neovi, supra, at 1159. Further, Galopes position that she only received an incomplete copy of the Modification Agreement from HomEq has no merit. The evidence shows that Galope did not contact HomEq from April 2008 through July 2009 to specifically complain that her fax-received copy of the Modification Agreement was incomplete. See EOR 1375. Further, logic dictates that a complete version of the Modification Agreement, with all signatures, could not exist if Galope was only provided an incomplete copy to sign. If Galope was only provided an incomplete copy to sign and return to HomEq, only an incomplete copy with the signatures would be available. However, DBNTC has presented into evidence a copy of the complete Modification Agreement, with all signatures, that contains the full text of Paragraphs 1(d) and 2. See EOR 1375. Galope has insufficient evidence to 24

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support her uncorroborated and self-serving allegations in this regard. Neovi, supra, at 1159. Galope has no evidence that defendant DBNTC directly and personally participated in the purported missing fax page scheme. See EOR 129-132; 1611262. Further, Galope could not present any evidence in this regard because her arguments concerning the alleged scheme only involve Barclays and/or HomEq, notwithstanding her counsels assertion of the facts are inadmissible, having no evidentiary support. See EOR 191-1325. Vicarious liability is expressly barred under the UCL, and so the Trial Court was correct in granting summary judgment in favor of DBNTC. 3. All Of The Alleged Oral Promises Concerning the Modification Are Barred Because The Written

Modification Agreement Is A Fully Integrated Document. The Modification Agreement is a fully integrated document that precludes all of the alleged oral promises made by HomEq concerning the subject loan modification. When the parties to a written contract have agreed to it as an integration a complete and final embodiment of the terms of an agreement parol evidence cannot be used to add or to vary its terms. Pollyana Homes, Inc. v. Berney, 56 Cal.2d 676, 679-80 (Cal. 1961). The crucial issue in determining whether there has been an integration is whether the parties intended their writing 25

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to serve as the exclusive embodiment of their agreement. Masterson v. Sine, 68 Cal.2d 222, 225 (Cal. 1968). Although the court may consider evidence of surrounding circumstances, a collateral oral agreement must be one that would have been made as a separate contract because it cannot embrace the same subject in the written contract but require different results. Metoyer v. Chassman, 504 F.3d 919, 935-37 (9th Cir. 2007). This rule is grounded on the notion that a writing constitutes a jural act, conduct which alters the voluntary legal relations of the parties. FPI Development, Inc. v. Nakashima, 231 Cal.App.3d 367, 388 (Cal. Ct. App. 1991). Here, the April 2008 Modification Agreement in pertinent part provides verbatim as follows: This Agreement constitutes the entire Agreement between the parties regarding the subject matter hereof. Except as otherwise provided herein, this Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, of the parties hereto, relating to the Note and Security Instrument. (Decl. of Stacy, Para. 7, Exh. 3, No. 5). The foregoing integration clause in the Modification Agreement precludes all of the alleged oral promises by HomEq concerning the subject loan modification. The plain and clear language of the integration clause provides that the writing is intended by the parties as the final expression of their agreement regarding the terms of the loan modification, thus Galope cannot introduce parol 26

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evidence to contradict the express terms therein.

The integration clause

supersedes all prior and contemporaneous discussions regarding the loan modification, whether written or oral, relating to Galopes obligation to pay back her mortgage loan. HomEqs alleged oral promises would not have been reduced into a separate contract separate from the Modification Agreement because the subject matter is the same. It is proper for the Court to wholly disregard Galopes allegations regarding HomEqs alleged oral promises. 4. Galope is Not Entitled to Any Relief Against Defendant DBNTC Under the UCL and Her Damages are Purely Conjectural and Hypothetical Galope has insufficient evidence to establish that DBNTC conspired to fix the LIBOR. Further, Galope is not entitled to any relief under the UCL for her LIBOR claim regardless because the evidence shows she has not sustained any concrete damages. The standing requirements under the UCL were amended by Proposition 64 in 2004, which limits standing to those who have actually been injured by an alleged violation. Cal. Bus. Prof. Code 17203, 17204; see also Harper v. 24 Hour Fitness, Inc., 167 Cal.App.4th 966, 975-77 (Cal. Ct. App. 2008). To bring a claim, a private plaintiff must prove that she (1) sustained an injury-in-fact and (2) lost money or property (3) as a result of the unfair competition. Cal. Bus. & Prof. Code 17204; see also POM Wonderful LLC v. 27

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Coca-Cola Co., 679 F.3d 1170, 1178 (9th Cir. 2012). To satisfy the injury-in-fact requirement, the injury must be concrete and particularized, and actual or imminent, not conjectural or hypothetical. Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322 (Cal. 2011). The lost-money-or-property element requires the Galope have suffered some form of economic injury. Id. at 323. In this case, Galope claimed that she would not have refinanced her mortgage loan in December 2006 had she known her interest rate was not based on independent market factors. See EOR 1302; 1304. However, this damage is purely conjectural and hypothetical. Galope has not established a concrete and particularized economic injury-in-fact to sustain her UCL claim premised on the LIBOR. Galopes theory of what she might have done is too disconnected from the conduct complained of and cannot be the basis for any relief under the UCL. As stated throughout this Brief, Galope never paid interest based on the LIBOR rate because she ceased making payments on her loan long before the first Interest Rate Change Date was to occur. Furthermore, Galopes assertion that the purported missing page in the loan modification agreement caused her harm is not supported by any evidence. The undisputed facts show that the Modification Agreement actually saved Galope money by reducing her interest rate from 8.775% to 5.500% and reduced her monthly mortgage payment from $3,817.13 to $3,027.02. Galope conceded that Modification Agreement cured her default 28

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under her Original Note. See Galopes EOR 660. In addition, Galope defaulted on her modified mortgage and declared Bankruptcy in January 2010 more than three years before her interest rate was to become linked to LIBOR under the Loan Modification Agreement. 5. Galope is Not Entitled to Restitution Under the UCL.

Galope is not entitled to restitution under the UCL for moneys paid. In California, an order for restitution under the UCL is one compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken. Kraus v. Trinity Mgmt. Servs., 23 Cal.4th 116, 126-27 (Cal. 2000). However, restitution to an alleged victim under the UCL requires that the offending party must have obtained something to which it was not entitled and the victim must have given up something which [she] was entitled to keep. Bradstreet v. Wong, 161

Cal.App.4th 1440, 1460-61 (Cal. Ct. App. 2008). An unfair competition claim is equitable in nature, and the remedies are generally limited to injunctive relief and restitution, and damages cannot be recovered. Martin Corp., 29 Cal.4th 1134, 1144 (Cal. 2003). In this case, Galope is not entitled to restitution of the modified payments made to HomEq because she was obligated to make her mortgage payments in order to keep the property. See EOR 1374-75; 1382-1412. If the mortgage loan 29 Korea Supply Co. v. Lockheed

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was not modified in April 2008, the outstanding arrearages would be even higher at the present time because the modification reduced the amount of the monthly mortgage payments by roughly $800.00. See EOR 1374-75; 1382-87; 1409-12. The evidence conclusively shows that Galope is not entitled to restitution as a matter of law. Galope is not entitled to take out a mortgage loan, not make her payments, and continue to keep the property. 6. Galope Has No Damages For Any UCL Claim Premised on Fraud. To the extent Galopes multiple UCL claims against defendant DBNTC are premised on fraud, these claims fail because Galope has no evidence to support any of the required elements. The elements of a fraud claim in California are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) damages. Small v. Fritz Companies, Inc., 30 Cal.4th 167, 173 (Cal. 2003). The plaintiff must state with particularity the circumstances

surrounding the fraud. Fed. R. Civ. P. 9(b). The particularity requirement of Rule 9(b) is designed to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged. Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir. 1993). As discussed above, Galope has no evidence that DBNTC personally participated in the circumstances surrounding the modification or that this 30

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defendant manipulated the LIBOR. Further, Galope has no evidence of damages. The September 1, 2011 trustees sale has been rescinded and there was no equity in the property at the time of the sale as briefed below. See EOR 1378; 1527-30. The loan modification benefitted Galope because it effectively cured the $15,951.62 in arrearages on the subject loan, and reduced the interest rate to a fixed 5.5% in contrast to the adjustable rate between 8.775% and 15.775% under the original terms of the loan. See EOR 1374-75; 1385; 1409-12. To the extent Galopes UCL claims against DBNTC are premised on fraud, the Trial Court was correct to grant summary judgment because Galope has no evidence of damages. 7. Galope is Precluded From Restitution For Her UCL Claim Premised on the Trustees Sale. Galopes third claim against defendants Ocwen, DBNTC, and Western Progressive is for an alleged violation of the UCL premised on the circumstances surrounding the September 1, 2011 trustees sale. See EOR 1622-25. However, as discussed above, Galope is not entitled to restitution under the UCL for moneys paid because she was not entitled to keep the property without making her payments. Kraus, supra, at 126-27. [T]he offending party must have

obtained something to which it was not entitled and the victim must have given up something which [she] was entitled to keep. Bradstreet, supra, at 1460-61. Here, Galope is not entitled to restitution because she is obligated to make 31

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her mortgage payments to keep the property. See EOR 1374-75; 1382-1412. It is undisputed that Galope is in default on the modified loan, as her last payment was made in April 2009. See EOR 1375; 1413-14. DBNTC, Western Progressive, and Ocwen are entitled to foreclose pursuant to the power of sale as authorized by the December 2006 Deed of Trust. See EOR 1374-75. Galope is not entitled to keep the property without making her mortgage payments, and Galope is not entitled to restitution for her UCL claim premised on the trustees sale as a matter of law. In her Opening Brief, Galope argues that the case of In re Ramirez stands for the proposition that actual damagesincluding attorneys fees, costs, and emotional distress are mandatory for a violation of the UCL based on a violation of the automatic stay. See Opening Brief, p.52. The case, however, did not involve any UCL claim, and it does not hold that Galope can recover any purported damages under the UCL. See In re Ramirez, 183 BR 573 (9th Cir. BAP 1995). C. The Trial Court Correctly Granted Summary Judgment on Galopes Fifth Claim For Violation of the FAL 17500. Galopes fifth claim is for violation of Californias Business and Professions Code section 17500, the False Advertising Law (FAL). See EOR 1628-31. The FAL prohibits untrue or misleading statements in connection with the sale of 32

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property, when those statements are known or should be known to be untrue or misleading. Cal. Bus. & Prof. Code 17500. Galope asserts that DBNTC

committed acts of untrue and misleading advertising when HomEq faxed to her a loan modification agreement with certain terms missing. See EOR 1629. Vicarious liability is inapplicable to the FAL, in addition to the UCL. See Emery, 95 Cal.App.4th at 960-1. But Galope fails to present any evidence to indicate that DBNTC was involved in any way with the allegedly improper transmission of her loan modification agreement. Without more, Ms. Galope has failed to meet her burden to set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256. In her Opening Brief, Galope does not address or rebut the holding of the Trial Court in the Order on Summary Judgment as to the FAL claim. See Opening Brief, pp.45-46. Accordingly, there is no reason to disturb the Trial Courts correct decision to grant summary judgment as to Galopes fifth claim. /// /// /// /// /// /// 33

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D.

The Trial Court was Correct to Grant Summary Judgment as to Galopes Seventh Claim for Wrongful Foreclosure. 1. Galopes Wrongful Foreclosure Claim is Moot and Galope Has No Damages Because There Was No Equity in the Property. Galopes seventh claim is for wrongful foreclosure. See EOR 1632-33.

Galopes wrongful foreclosure claim is moot because the September 1, 2011 trustees sale has been rescinded. Further, Galope has no damages because there was no equity in the property at the time of the sale. [A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). [T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief. West v. Secretary of Dept. of Transp., 206 F.3d 920, 925 (9th Cir. 2000). Unless the prevailing party can obtain effective relief, any opinion as to the legality of the challenged action would be merely advisory. City of Erie v. Paps A.M., 529 U.S. 277, 287 (2000). The measure of damages when the power of sale is invoked under a deed of trust is the fair market value at the time of sale less outstanding encumbrances and/or taxes due at such time. Munger v. Moore, 11 Cal.App.3d 1, 7-8, n. 6 (Cal. Ct. App. 1970). 34

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Here, Galopes wrongful foreclosure claim is moot because the September 1, 2011 trustees sale has been rescinded. See EOR 1378; 1527-30. As such, the foreclosure commenced on March 8, 2011 is no longer at issue and any opinion on the same would be merely advisory. The Trial Court was correct to grant Defendants summary judgment on Galopes wrongful foreclosure claim because Galope cannot obtain any relief on this claim as a matter of law. Further, Galope has no damages because there was no equity in the property at the time of the sale. In the January 5, 2010 bankruptcy filing, Galope declared under the penalty of perjury that the fair market value of the property is $373,000.00 and the outstanding debt is $537,951.00. See EOR 1379; 1435; 1451. In the January 17, 2012 bankruptcy filing, Galope declared under the penalty of perjury that the fair market value of the property is $350,000.00 and the outstanding debt is $522,000.00. See EOR 1380-81; 1560; 1567; 1572. In sum, at the time of the trustees sale, the fair market value of the property was between $350,000.00 and $373,000.00 whereas the outstanding debt was between $522,000.00 and $537,951.00. Accordingly, the property was under water by $150,000.00 or more and Galope has no damages for her wrongful foreclosure claim because there was no equity in the property at the time of the sale. /// /// 35

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2.

Galope Did Not Give Any Notice to Western Progressive, the Foreclosure Trustee, of Her Bankruptcy Reinstatement Prior to the Trustees Sale.

The record shows that the September 1, 2011 trustees sale went forward as Galopes bankruptcy had been dismissed and the automatic stay vacated on August 17, 2011. See EOR 1380; 1541-41. While Galope reinstated the Chapter 13 bankruptcy case on August 30, 2011, just before the trustees sale, the bankruptcy court ultimately dismissed this case once more. See EOR 1380-81; 1543-47. Galope did not give Western Progressive, the foreclosure trustee, any notice that the bankruptcy case was reinstated prior to the subject sale. See EOR 1378. Western Progressive was in charge of conducting the foreclosure of the property. See EOR 1377-78. Galopes attempt to make the trustees sale some sort of nefarious situation is contradicted by the record. The only evidence Galope presents for her position that she gave Western Progressive notice of the reinstatement are uncorroborated self-serving statements, and disregard of such statements is proper. Neovi, supra, at 1159. Vicarious liability under the UCL is expressly barred, thus Galope cannot obtain any relief under the UCL for the circumstances surrounding the subject trustees sale because defendant WPT was not given notice of the bankruptcy reinstatement. Toomey, supra, at 14.

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Galope asserts, in her Opening Brief, that no tender was required, that the maker of the note did not transfer the note to any defendant, and that the documents had indicia of robo-signing. See Opening Brief, pp.4-51. None of these arguments were ever made to the Trial Court, and are not proper to be considered on this appeal. E. The Trial Court was Correct to Grant Summary Judgment as to Galopes Eighth Claim for Breach of Good Faith and Fair Dealing. Galopes eighth claim is for breach of good faith and fair dealing. See EOR 1633-34. However, Galope has no evidence to support this claim against DBNTC, Western Progressive, and Ocwen. The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other partys right to receive the benefits of the agreement actually made. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 349 (Cal. 2000). The covenant thus should not be endowed with an

existence independent of its contractual underpinnings. Walker v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 36 (Cal. 1995). As such, any relief to be obtained must be incorporated in the specific terms of the agreement. Kim v. Regents of the University of California, 80 Cal.App.4th 160, 164 (Cal. Ct. App. 2000). The implied covenant rests upon the existence of some specific contractual obligation. Foley v. Interactive Data Corp., 47 Cal.3d 654, 683-84 (Cal. 1998). The implied 37

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covenant is read into contracts to protect the express covenants or promises of the contract, not to protect some general public policy interest that is not directly tied to the contracts purpose. Id. at 690. Here, the only contracts of relevance are the December 2006 Note and Deed of Trust, and the April 2008 Modification Agreement. See EOR 1374-75; 1382-1412. Galope has no evidence that moving defendants unfairly frustrated her right to receive the benefits under the Deed of Trust or the Modification Agreement. Galopes last payment on the modified loan was made in April 2009, and DBNTC, Western Progressive, and Ocwen were authorized under the power of sale provision in the Deed of Trust to initiate foreclosure based on the default. Galope has no evidence that establishes that DBNTC, Western Progressive, or Ocwen specifically interfered with her performance under the contracts or that they failed to cooperate with her concerning the specific contractual terms in the Note, Deed of Trust, and Modification Agreement. Galope cannot rely on

theories independent and outside the scope of the terms of the subject contracts in order to place blame on DBNTC, Western Progressive, or Ocwen. Moreover, Galope has no damages as briefed above thus Galope cannot obtain any relief regardless. In her Appeal, Galope asserts two arguments for the first time. First, Galope argues that DBNTC, Western Progressive and Ocwen violated the Power of Sale 38

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covenant in the Deed of Trust. See Opening Brief, pp. 53-54.

This allegation was

never presented in the Third Amended Complaint, or in the Opposition to the Motion for Summary Judgment. See EOR 1291-1325; 1633-34. See Recinto v. U.S. Dept of Veterans Affairs, 706 F.3d 1171, 1176 n.3 (9th Cir. 2013) (declining to consider allegations advanced for the first time on appeal). In fact, Galope did

not offer any argument in support of the good faith and fair dealing claim in her Opposition to the Motion for Summary Judgment. As stated throughout this brief, new arguments presented for the first time on Appeal should be disregarded. Furthermore, Galope presents no case law or other support for her interpretation of the Power of Sale clause and its effects. See Opening Brief, p. 54. Second, Galope argues that DBNTC, Ocwen, and Western Progressive violated an implied covenant to disclose all material terms. This is another argument made for the first time on appeal. See EOR 1291-1325. Even if the Court considers Galopes argument, the Court should reject it. Galope cites Susilo v. Wells Fargo Bank, 796 F.Supp.2d 1177 (C.D.Cal. 2011) (Susilo), for the proposition that the purported failure to provide the entire loan modification document to Galope by facsimile constitutes a breach of the covenant of good faith and fair dealing. The Susilo decision does not apply here. In that case, Plaintiff alleged an oral agreement wherein Wachovia promised the borrower to delay a pending foreclosure sale if the borrower provided a letter disputing the sale and 39

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providing proof that the borrower had mailed in a check for $52,000.00. See id. at 1183-84. The $52,000.00 check was purportedly in excess of the amount stated in the default notice to cure the default. See id. The Plaintiff alleged that she performed under the terms of the oral agreement, but that Defendants went ahead with the foreclosure sale anyway. See id. at 1184. The Susilo court denied the Motion to Dismiss as to the breach of the covenant of good faith and fair dealing filed by Wells Fargo (the successor to Wachovia), but granted the Motion to Dismiss filed by the foreclosure trustee ETS. The Susilo case does not support Galope. In Susilo, there was an allegation of breach of an express term, namely, that Wachovia would delay the foreclosure sale, provided that the borrower offered proof of payment of the $52,000.00. Contrary to Galopes argument, the holding in the Susilo case was not based on the failure by Wachovia to provide the payoff amount to the borrower. In her appeal, or in her Opposition to the Motion for Summary Judgment, Galope does not point to a breach of any express term of the loan modification agreement. The Court was correct to grant summary judgment on the good faith and fair dealing claim. VIII. CONCLUSION For the foregoing reasons, Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4,Western 40

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Progressive, LLC, and Ocwen Loan Servicing, LLC request this honorable Court to affirm the Trial Courts Summary Judgment Order.

DATED: July 5, 2013

HOUSER & ALLISON A Professional Corporation By: /s/ Brent A. Kramer Brent A. Kramer Attorneys for Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4, Western Progressive, LLC, and Ocwen Loan Servicing, LLC

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STATEMENT OF RELATED CASES

1. Helen Galope v. Deutsche Bank National Trust Company, as Trustee Under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Back Receivables, LLC., Trust 2007-BR4, et al., Case No. 8:12-cv-00323CJC-RNB (C.D.Cal. 2012). 2. In re Helen Galope, Case No. 1:10-bk-10107-BK (C.D.Cal. Bankruptcy 2010) 3. Galope v. Deutsche Bank National Trust Company, et al., Case No. 1:10-ap01082-MT (C.D.Cal. Bankruptcy 2010) 4. In re Helen Galope, Case No. 1:11-bk-18339-MT (C.D.Cal. Bankruptcy 2011) 5. In re Helen Galope, Case No. 1:12-bk-10462-MT (C.D.Cal. Bankruptcy 2012) DATED: July 5, 2013 HOUSER & ALLISON A Professional Corporation By: /s/ Brent A. Kramer Brent A. Kramer Attorneys for Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4, Western Progressive, LLC, and Ocwen Loan Servicing, LLC 42

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CERTIFICATE OF FILING COMPLIANCE Certificate of Compliance with Type-Volume Limitation, Typeface Requirements and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: [X] this brief contains 9,175, words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [X] this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point font Times New Roman.

DATED: July 5, 2013

HOUSER & ALLISON A Professional Corporation By: /s/ Brent A. Kramer Brent A. Kramer Attorneys for Defendants-Appellees Deutsche Bank National Trust Company, as Trustee under Pooling and Servicing Agreement Dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR4, Western Progressive, LLC, and Ocwen Loan Servicing, LLC

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CERTIFICATE OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I, the undersigned say: I am a person over the age of eighteen years and not a party to this action. My business address is 3780 Kilroy Airport Way, Suite 130, Long Beach, CA 90806. I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on July 5, 2013: BRIEF OF APPELLEES DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, WESTERN PROGRESSIVE, LLC, AND OCWEN LOAN SERVICING, LLC I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Brent A. Kramer

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ADDENDUM TO BRIEF The Addendum to the brief required by FRAP 28(f) and Circuit Rule 28-2.7 is bound along with the brief, and filed and served concurrently herewith.

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TABLE OF CONTENTS

Cal. Bus. & Prof. Code 17200...1 Cal. Bus. & Prof. Code 17203..1 Cal. Bus. & Prof. Code 17204..1 Cal. Bus. & Prof. Code 17500..1

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Cal. Bus. & Prof. Code 17200. Unfair competition; prohibited activities As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code. Cal. Bus. & Prof. Code 17203. Injunctive Relief--Court Orders Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state. Cal. Bus. & Prof. Code 17204. Actions for Injunctions by Attorney General, District Attorney, County Counsel, and City Attorneys Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or a district attorney or by a county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or by a city attorney of a city having a population in excess of 750,000, or by a city attorney in a city and county or, with the consent of the district attorney, by a city prosecutor in a city having a fulltime city prosecutor in the name of the people of the State of California upon their own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. Cal. Bus. & Prof. Code 17500. False or misleading statements; penalty It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or

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those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine.

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CERTIFICATE OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I, the undersigned say: I am a person over the age of eighteen years and not a party to this action. My business address is 3780 Kilroy Airport Way, Suite 130, Long Beach, CA 90806. I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on July 5, 2013: ADDENDUM TO BRIEF OF APPELLEES DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, WESTERN PROGRESSIVE, LLC, AND OCWEN LOAN SERVICING, LLC I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Brent A. Kramer