Cornejo et al v. Ocwen Loan Servicing, LLC et al

Filing 47

PRETRIAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 8/29/2016. Motions in Limine: Filed by 9/2/2016; Opposition by 9/9/2016; Motion Hearing set for 9/15/2016 at 10:00 AM in Bakersfield at 510 19th Street (JLT) before Magistrate Judge Jennifer L. Thurston. Trial Submissions due by 9/16/2016. Exhibit binders due by 9/23/2016. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANK CORNEJO, et al.,

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Plaintiffs,

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v.

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OCWEN LOAN SERVICING, LLC, et al.,

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Defendants.

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Case No.: 1:15-cv-000993 - JLT
PRETRIAL ORDER
Deadlines:
Motions in Limine Filing: 9/2/16
Oppositions to Motions in Limine: 9/9/16
Hearing on Motions in Limine: 9/15/16, 10:00 a.m.
Trial Submissions: 9/23/16

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In this action, the plaintiffs claim that the defendants are liable for violations of California law

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for actions taken during the foreclosure of their home.

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A.

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JURISDICTION/ VENUE
This court has jurisdiction over this diversity action under 42 U.S.C § 1332. Also, the events

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that gave rise to this action occurred in Bakersfield, California. Accordingly, venue is proper in the

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United States District Court for the Eastern District of California sitting in Bakersfield. See 28 U.S.C.

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§ 1391.

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B.

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JURY TRIAL
Plaintiffs demanded a jury trial in this matter. (Doc. 17 at 47)

C.

UNDISPUTED FACTS
1.

On or about July 27, 1992, Plaintiffs obtained a mortgage loan (the “Loan”) from

Medallion Mortgage Company in the original principal sum of $113,400.00, which was reflected in a
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promissory note secured by a deed of trust (the “Deed of Trust”) encumbering the real property located

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at 3425 Rancho Sierra Street, Bakersfield, CA 93306 (the “Property”).

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2.

The beneficial interest under the Deed of Trust was assigned to U.S. Bank.

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3.

Ocwen acquired the contractual right and responsibility to service the Loan from GMAC

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Mortgage, LLC.

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4.

Western Progressive was the duly appointed substitute trustee under the Deed of Trust.

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5.

Plaintiffs defaulted under the Loan in or about June of 2013 and remained in continuous

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default through April 29, 2015.
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demand letter wherein it notified them that they were in default under the Loan.
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The Notice of Sale put interested parties on notice that the Property would be sold at a

public auction on March 27, 2015, but the sale date was postponed to April 29, 2015.
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Following Plaintiffs’ failure to cure their default, on February 23, 2015, a Notice of

Trustee’s Sale (the “Notice of Sale”) was recorded against the Property

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On October 22, 2014, a Notice of Default and Election to Sell Under Deed of Trust was

recorded against the Property.

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Ocwen assigned Stephanie Wenner as the internal “foreclosure coordinator” in charge of

overseeing the foreclosure of the subject property and communicating with foreclosure trustees.

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As a result of Plaintiffs’ default, on September 11, 2013, Ocwen sent Plaintiffs a

On April 29, 2015, the Property was sold at a public auction (the “Foreclosure Sale”)

pursuant to the power of sale provisions under the Deed of Trust.
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At the time of the Foreclosure Sale, it was Western Progressive’s understanding that

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Plaintiffs did not have a complete first lien loan modification application pending with respect to the

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Loan.

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13.

Title to the Property was conveyed to Kai Czak, Inc. through a Trustee’s Deed Upon

Sale (“TDUS”).
14.

Ocwen’s records do not reflect receipt of a completed loan modification application

from Plaintiffs at any point in time prior to April 16, 2016.
15.

During a January 24, 2014 call between Dora Cornejo and an Ocwen representative: (a)
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Mrs. Cornejo explained to Ocwen that Plaintiffs suffered a financial hardship caused by a slowdown in

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their business; and (b) Ocwen agreed to provide Plaintiffs with a loan modification application.
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On February 20, 2015, an Ocwen representative spoke with Dora Cornejo via telephone

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at which time the representative informed Mrs. Cornejo that Ocwen had not received any loan

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modification applications from Plaintiffs.
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During a March 16, 2015 telephone conference between Ocwen and Frank Cornejo, Mr.

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Cornejo was advised that merely applying for a modification of the Loan would not stop the scheduled

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sale.

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18.

At the time Plaintiffs submitted their loan modification application on April 16, 2016

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(the “Subject Application”): (a) the Property was encumbered by the Deed of Trust, a lien in favor of

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the Internal Revenue Service (“IRS Lien”), a lien in favor of the California Franchise Tax Board (the

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“FTB Lien”), and a judgment lien in favor of State Farm Automobile Insurance Co. (“State Farm

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Lien”); and (b) Frank Cornejo owned a separate parcel of real property located at 1809 Potomac Ave.,

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Bakersfield, CA (the “Potomac Ave. Property”).

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19.

The April 16, 2015 submission included the standard Profit & Loss form requested by

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Ocwen, although statement year, start date, end date, and Gross Receipts/Business Income sections

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were left blank.

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By April 17, 2015, Ocwen’s records reflected receipt from Plaintiffs of a Home

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Affordable Modification Program Financial Form, IRS Form 4506T, HOA/Condo Dues, Dodd Frank

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Certification, Hardship Statement, Profit and Loss Statement.

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On April 21, 2015, Ocwen reviewed the Subject Application and determined that it was

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deficient as: (i) the profit and loss form was missing a start date and end date; (ii) it was not

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accompanied by tax returns; and (iii) it was not accompanied by pay stubs to support the income

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identified in Section 7 of the application.

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22.

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with foreclosure.

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23.

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On April 22, 2015, Ocwen set foreclosure bid instructions and therefore was proceeding

Ocwen’s logs reflect that, during an April 27, 2015 call, Dora Cornejo raised a dispute

with Ocwen and contended that the Profit and Loss form and tax returns had already been submitted,
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but Defendants deny that Ocwen received any supplemental documents in support of the Subject

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Application before April 28, 2015.

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On April 28, 2015, Ocwen received a twenty-two page facsimile (the “Supplemental

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Submission”) from Plaintiffs containing: (a) a letter of explanation; (b) a hardship letter; (c) a Profit &

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Loss Statement; and (d) a copy of Plaintiffs’ 2013 tax returns.

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25.

On April 28, 2015 Ocwen employee Tabassum Asgar sent an internal email, marked

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high importance, identifying that the requested loan modification application documents had been

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received.

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26.

On April 28, 2015 Ocwen employee Tabassum Asgar sent an email, marked high

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importance, to Ocwen’s foreclosure coordinator Stephanie Wenner entitled “******965 Request to

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postponed CSD for 04/29/2015” which identifies the loan modification as under review.

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On April 28, 2015, an Ocwen representative had a separate conversation with Dora

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Cornejo, at which time Mrs. Cornejo represented that Plaintiffs’ financial hardship started in December

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of 2012.

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28.

On April 29, 2015, an Ocwen representative spoke with Dora Cornejo at which time

Mrs. Cornejo advised Ocwen that Frank Cornejo filed for bankruptcy.
29.

On April 29, 2015, Ocwen received a Notice of Filing Report of No Distribution (the

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“Bankruptcy Notice”) via facsimile which purported to reflect that Frank Cornejo was a debtor in a

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bankruptcy case pending in the U.S. Bankruptcy Court for the Eastern District of California (the

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“Bankruptcy”).

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30.

On April 30, 2015, Ocwen sent Plaintiffs a letter wherein it acknowledged its receipt of

the Supplemental Submission.
31.

None of the letters that Ocwen sent to Plaintiffs in connection with the Submitted

Application were returned as undeliverable.

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32.

Ocwen never denied Plaintiffs’ loan modification application.

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33.

Ocwen can deny a loan modification application on the basis that the application is

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incomplete, terminating a review.
34.

Ocwen’s records reflect that foreclosure coordinator Stephanie Wenner never responded
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to internal Ocwen emails requesting to postpone the sale.
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authority to cancel the foreclosure sale, but it was too late as the sale had already completed.
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As of May 1, 2015, Ocwen’s records reflect that it had received all of the requested

documents and information in connection with the Subject Application by April 28, 2015.
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Ocwen continued to review Plaintiffs’ loan modification application candidacy from

April 16, 2015, through May 22, 2015.

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On April 30, 2015, Ocwen employee Ashlee McLane internally emailed and provided

On May 1, 2015, Ocwen advised the foreclosure trustee that the loan was not involved

in loss mitigation and authorized post-foreclosure procedures despite the fact that the account was still
being reviewed for a modification.
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On or about May 14, 2015, Ocwen sent Plaintiffs a letter congratulating them on

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qualifying for and obtaining a loan modification, and representing that the new loan would commence

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June 1, 2015, as long as Plaintiffs returned the signed documentation and initial payment of $817.29.
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favorable loan terms given the borrowers’ financial hardship.
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The loan modification for which the Plaintiffs qualified provided objectively more

The loan modification agreement could not actually modify the loan absent a rescission

of the Foreclosure Sale because the loan debt was extinguished by virtue of the foreclosure.
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Plaintiffs were evicted from the subject property by the new owner and forcibly

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removed from the premises by the sheriff.

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D.

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DISPUTED FACTS
All other facts in this case remain in dispute including but not limited to all facts relating to the

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following:

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1.

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Whether Ocwen postponed the March 27, 2015 foreclosure sale of the Property to April

29, 2015 in order to allow Plaintiffs to apply for loan modification.

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2.

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16, 2015.

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3.

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Whether Plaintiffs submitted the loan modification application in its entirety on April

Whether by April 21, 2015, Ocwen had reviewed the documents submitted by Plaintiffs

and decided that an additional profit and loss form and tax return would be required.
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4.

Whether, if sent at all, Ocwen sent the April 21, 2015 letter concerning additional

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documents required for loan modification to the Plaintiffs by way of regular mail from Florida, and it

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was therefore unlikely for the letter to reach the Plaintiffs without prejudicing their ability to comply

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with Ocwen’s seven day deadline for application.

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5.

Whether Ocwen made no contact with the borrower on April 21, 2015 or April 22, 2015

apart from purportedly sending an advisory letter concerning needed documents in the mail.
6.

Whether on April 22, 2015, Ocwen set foreclosure bid instructions and therefore was

proceeding with foreclosure before Plaintiffs were aware of any additionally requested documents.
7.

Whether Plaintiffs did not receive any advisory letters from Ocwen until after the

foreclosure sale had completed.
8.

Whether on April 27th and April 28th, 2015 Plaintiffs faxed and re-faxed documents to

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Ocwen which responded fully to Ocwen’s request for additional documents, and which Plaintiffs

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contend had already been submitted in their previous faxes.

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9.

Whether Plaintiffs’ loan modification application was in review and had neither been

approved nor denied by Ocwen at the time of the completed foreclosure sale on April 29, 2015.
10.

Whether Ocwen continued to review Plaintiffs’ loan modification application candidacy

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from April 16, 2015 through May 22, 2015 without regard to any seven day application requirement

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and therefore waived the requirement.

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11.

Whether Plaintiffs relied on the May 14, 2015 letter and returned the signed documents

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and initial payment.

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12.

Whether Ocwen waived its seven day deadline by continuing to review the loan

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modification application from April 16, 2015 through May 22, 2015 and approving it for a favorable

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loan modification program.

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13.

Whether an alternate foreclosure coordinator would normally have been available to

address the needs attendant to the foreclosure of the property in Stephanie Wenner’s absence.
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Whether Plaintiffs would have materially benefited from the loan modification if it was

received before the foreclosure was completed because they would have kept their home.
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Whether Plaintiffs did not receive any advisory letters from Ocwen until after the
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foreclosure sale had completed.

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Whether Ocwen’s conduct was reckless or resulted from willful misconduct.

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Whether on September 25, 2013, an Ocwen representative spoke with Dora Cornejo via

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telephone, at which time she requested a loan modification application (the “First Application”) and

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explained that Plaintiffs were encountering financial issues.

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Whether on September 26, 2013, Ocwen sent Plaintiffs a letter that included

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instructions for submitting a loan modification application and a blank loan modification application

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(the “First Application”).

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19.

Whether on October 29, 2013, an Ocwen representative spoke with Plaintiffs via

telephone, at which time they requested a modification of the Loan.
20.

Whether during its October 29, 2013 call with Plaintiffs, Ocwen agreed to provide

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Plaintiffs with a loan modification application and Plaintiffs agreed to return the completed application

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to Ocwen by November 18, 2013.

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21.

Whether on October 30, 2013, Ocwen sent Plaintiffs a letter that included instructions

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for submitting a loan modification application and a blank loan modification application (the “Second

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Application”).

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22.

Whether Ocwen instructed Plaintiffs to submit the completed Second Application by

November 29, 2013.
23.

Whether on January 24, 2014, an Ocwen representative spoke with Dora Cornejo via

telephone at which time she expressed an interest in being considered for a modification of the Loan.
24.

Whether on January 30, 2014, Ocwen sent Plaintiffs a letter that included instructions

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for submitting a loan modification application and a blank loan modification application (the “Third

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Application”).

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Whether Ocwen instructed Plaintiffs to submit the completed Third Application by no

later than April 24, 2014.
26.

Whether on December 15, 2014, an Ocwen representative spoke with Dora Cornejo via

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telephone at which time she requested a loan modification application and explained that Plaintiffs

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suffered a financial hardship caused by a reduction in their self-employment income.
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Whether during its December 15, 2014 call with Dora Cornejo, Ocwen agreed to

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provide Plaintiffs with a loan modification application and Mrs. Cornejo agreed to return the

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application within 15 days.

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28.

Whether on December 16, 2014, Ocwen mailed Plaintiffs a loan modification

application (the “Fourth Application”).
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Whether the Fourth Application advised Plaintiffs that the completed application must

be submitted to Ocwen at least seven business days prior to any scheduled foreclosure sale.
30.

Whether on February 17, 2015, Ocwen sent Plaintiffs another loan modification

application (the “Fifth Application”).
31.

Whether on March 16, 2015, an Ocwen representative spoke with Frank Cornejo who

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requested a postponement of the foreclosure sale of the Property, which had been scheduled for March

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27, 2015.

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32.

Whether at no point during the March 16, 2015 call or any point in time thereafter did

Ocwen advise Plaintiffs that they were pre-approved for a modification of the Loan.

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33.

Whether on April 16, 2015, Ocwen received the Subject Application via facsimile.

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34.

Whether the Subject Application consisted of pages 5 through 16 of the Fourth

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Application and was not supported by any additional documents.
35.

Whether four days after receiving the Subject Application, on April 20, 2015, Ocwen

sent Plaintiffs a letter wherein it acknowledged its receipt of the Subject Application.
36.

Whether the IRS Lien, FTB Lien, and State Farm Lien remained outstanding as of the

date of the foreclosure sale of the Property.
37.

Whether Plaintiffs did not disclose the IRS Lien, FTB Lien, or the State Farm lien on

the Subject Application, nor did they disclose the Potomac Ave. Property.
38.

Whether on April 21, 2015, Ocwen sent Plaintiffs a letter wherein it informed them that

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the Subject Application was incomplete and listed the additional documents that Ocwen required to

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complete the application.

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39.

Whether the Supplemental Submission was the only other document submission that

Ocwen received from Plaintiffs in support of the Subject Application.
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40.

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Whether Ocwen did not receive any documents from Plaintiffs explaining how their

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financial circumstances had changed at any point in time between September 26, 2013, and the date

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they submitted the Subject Application.
41.

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Whether on April 28, 2015, an Ocwen representative spoke with Frank Cornejo

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regarding the Subject Application and informed him that Ocwen would not have enough time to review

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the application prior to the foreclosure sale of the Property, which was scheduled for April 29, 2015.
42.

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Whether without making any promises to Plaintiffs, Ocwen nevertheless attempted to

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postpone the sale, but was unable to do so before the scheduled sale date and time of April 29, 2015, at

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10:00 a.m.

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43.

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Whether the Bankruptcy Notice was a fabricated document that Plaintiffs submitted to

Ocwen in an effort to postpone the Foreclosure Sale.
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Whether due to its mistaken belief that the foreclosure sale could be rescinded, which

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was based, in part, on the Bankruptcy, Ocwen continued to review the Subject Application after the

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foreclosure sale.
45.

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Whether to be considered for a first lien loan modification, Ocwen requires borrowers

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to submit a complete loan modification application at least seven business days before a scheduled

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foreclosure sale date (the “Submission Deadline Requirement”).
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Whether the Submission Deadline Requirement is consistent with the deadlines

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prescribed under the Making Home Affordable Program and is necessary to allow Ocwen sufficient

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time to fully review loan modification applications prior to a scheduled foreclosure sale.
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Whether at no point in time did Ocwen waive its Submission Deadline Requirement for

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Plaintiffs, nor did it advise Plaintiffs that the Subject Application was complete at any point in time

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prior to the Foreclosure Sale.
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Whether Ocwen, as successor by assignment from GMAC Mortgage, LLC, is a party to

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a Consent Judgment entered in U.S. District Court for the District of Columbia Case No. 1:12-cv-

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00361-RMC.

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E.

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DISPUTED LEGAL ISSUES
1.

Whether Defendants violated section 2923.6 of the California Civil Code.
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2.

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was material.
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Whether Defendants’ violation of section 2923.6 of the California Civil Code, if any,

Whether Plaintiffs submitted a “complete” application for a first lien loan modification

within the meaning of section 2923.6(h) of the California Civil Code.

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4.

Whether Defendants violated section 2924.10 of the California Civil Code.

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5.

Whether Defendants’ violation of section 2924.10 of the California Civil Code, if any,

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was material.
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2924.12(i) of the California Civil Code.
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Whether Plaintiffs are entitled to treble or statutory damages pursuant to section

2924.12(b) of the California Civil Code.
8.

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Whether Plaintiffs are entitled to an award of attorneys’ fees pursuant to section

Whether Plaintiffs are entitled to separate awards of treble or statutory damages

pursuant to section 2924.12(b) of the California Civil Code for each proven violation of the HBOR.
9.

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Whether Defendants are entitled to an award of attorneys’ fees if they are deemed to be

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the prevailing party in this action.

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F.

DISPUTED EVIDENTIARY ISSUES

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None other than motions in limine. Plaintiffs do not anticipate filing motions in limine at this

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time. Defendants anticipate filing motions in limine to limit the scope of any direct testimony offered

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by Plaintiffs or Hernan Ernie Cortez on the basis that their testimony is based on inadmissible hearsay.

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G.

None.

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SPECIAL FACTUAL INFORMATION

H.

RELIEF SOUGHT
Plaintiffs seek to recover actual and treble or statutory damages pursuant section 2924.12(b) of

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the California Civil Code. They also seek an award of attorney’s fees pursuant to section 2924.12(i).

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Defendants reserve the right to pursue an award of attorneys’ fees in the event that they are deemed the

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prevailing party in this action. Plaintiffs dispute the notion that Defendants have any statutory or

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contractual basis upon which to pursue attorneys’ fees even in the event that they are deemed the

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prevailing party in this action.
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I.

None.

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ABANDONED ISSUES

J.

WITNESSES
The following is a list of witnesses that the parties expect to call at trial, including rebuttal and

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impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY

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BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT

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THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P.

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16(e); Local Rule 281(b)(10).

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Plaintiffs’ Witness List:

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1.

Dora Cornejo

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2.

Frank Cornejo

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3.

Hernan Ernie Cortez

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4.

Rashad Blanchard of Ocwen Loan Servicing, LLC

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5.

Stephanie Spurlock of Western Progressive Trustee, LLC

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6.

Melissa Gaeta

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7.

Monica Cornejo

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8.

Curtis D. Harris (Expert)

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Defendants’ Witness List:

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1.

Rashad Blanchard of Ocwen Loan Servicing, LLC

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2.

Stephanie Spurlock of Western Progressive Trustee, LLC

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3.

Lance Ablin of Kai Czak, Inc.

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4.

Maria Hernandez of Franklin and Associates

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5.

Gary Crabtree of Affiliated Appraisers (Expert)

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6.

Dora Cornejo

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7.

Frank Cornejo

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8.

Hernan Ernie Cortez

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9.

Individual identified as “Tatsi” in Plaintiffs’ First Amended Complaint

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10.

Individual identified as “Tabu” in Plaintiffs’ First Amended Complaint
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K.

EXHIBITS, SCHEDULES AND SUMMARIES
The following is a list of documents or other exhibits that the parties expect to offer at trial.

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NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS

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THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE

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MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11).

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Plaintiffs’ Exhibits

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1.

Loan Modification Application facsimile, dated April 16, 2015

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2.

Loan Modification Deficiency letter, dated April 21, 2015

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3.

Loan Modification Offer Letter dated May 14, 2015

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4.

Franklin & Associates Profit and Loss dated April 22, 2015

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5.

2013 U.S. Individual Income Tax Return of Dora and Francis Cornejo

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6.

Email from Ocwen employee Tabassum F. Asgar dated April 28, 2015

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Ocwen REALSERVICING logs dated March 10, 2015 through May 28, 2015

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8.

Email from Ocwen employee Ashlee McLane dated April 30, 2015

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9.

Email from Ocwen employee Imma Kate Sta. Ines dated May 4, 2015

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10.

Email from Ocwen employee Lolita N. Llorente

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11.

Email from [e-mail] dated May 1, 2015

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12.

Email from [e-mail] dated April 29, 2015

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13.

Email from [e-mail] dated April 22, 2015

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14.

Email to [e-mail] dated April 29, 2015

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15.

Email from [e-mail] dated April 29, 2015

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16.

Trustee’s Deed Upon Sale (Kern County Instrument No. 0215057029)

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17.

Unlawful Detainer lawsuit in matter of Kai Czak, Inc. v. Cornejo et al. (Kern County

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Superior Court Case No. S-1500-CL-291623
18.

Judgment entered in lawsuit in matter of Kai Czak, Inc. v. Cornejo et al. (Kern County

Superior Court Case No. S-1500-CL-291623.
19.

Receipts for court fees in the matter of Kai Czak, Inc. v. Cornejo et al. (Kern County

Superior Court Case No. S-1500-CL-291623.
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20.

Retainer agreement between Dora and Frank Cornejo and John Loftus

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21.

Lease agreement dated August 1, 2015

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22.

Enterprise Rent-A-Car receipt dated August 25, 2015

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23.

Cashier’s check in amount of $817.40 (check no. 0794200820)

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24.

Ledger of payment for storage lockers

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25.

Receipt for Jeff’s Notary Services dated May 20, 2015.

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26.

FedEx Office receipt

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27.

Office Max receipt

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28.

Walmart receipt

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29.

Furniture Mart receipt dated August 22, 2015

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30.

Used furniture receipt

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Snider’s Lock receipt dated August 26, 2015

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Snider’s Cyclery receipt dated August 26, 2015

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33.

Diary of Monica Cornejo

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34.

Oak Street Mobil receipt dated August 25, 2015

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35.

Notice of Entry dated May 1, 2015

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36.

Notice of Entry dated June 13, 2015

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37.

Davis-White & Associates receipt dated May 12, 2015

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38.

Handwritten notes

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39.

Fax transmittal dated April 23, 2015

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40.

Fax transmittal dated April 16, 2015

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41.

Appraisal report of Curtis Harris

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42.

Telephone recording of conversation between Melissa Gaeta, Dora Cornejo, and Ocwen

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43.

Plaintiffs’ written timeline of events

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44.

Handwritten note dated May 4, 2015

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45.

Handwritten note dated May 1, 2015

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46.

Handwritten note dated April 30, 2015

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47.

Notice of IRS Tax Lien dated July 8, 2015
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48.

Payment of IRS Tax Lien from surplus proceeds dated November 16, 2015

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49.

Writ of Possession

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50.

Kern County Sheriff’s Office Notice to Vacate dated August 24, 2015

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51.

FedEx receipt dated May 20, 2015

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52.

Signed loan modification agreement signed May 20, 2015

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53.

Complete application letter dated May 4, 2015

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54.

Ocwen letter dated April 20, 2015

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55.

Ocwen letter dated April 21, 2015

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56.

Ocwen letter dated April 30, 2015

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Defendants’ Exhibits

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1.

Deed of Trust Note executed by Plaintiffs on July 27, 1992

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2.

Deed of Trust recorded in the Official Records of Kern County, California, as Doc. No.

3.

Assignment of Deed of Trust recorded in the Official Records of Kern County,

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108724

California, as Doc. No. 158205

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4.

Notice of Default letter, dated September 11, 2013

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5.

Loan Modification Application letter, dated September 26, 2013

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6.

Loan Modification Application letter, dated October 30, 2013

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7.

Loan Modification Application letter, dated January 30, 2014

20

8.

Loan Modification Application letter, dated December 16, 2014

21

9.

Loan Modification Application letter, dated February 17, 2015

22

10.

Loan Modification Application facsimile, dated April 16, 2015

23

11.

Loan Modification Acknowledgment letter, dated April 20, 2015

24

12.

Loan Modification Deficiency letter, dated April 21, 2015

25

13.

Supplemental Loan Modification Application facsimile, dated April 28, 2015

26

14.

Notice of Filing Report of No Distribution for U.S. Bankruptcy Court for the Eastern

27
28

District of California Case No. 12-1157
15.

Loan Modification Acknowledgment letter, dated April 30, 2015
14

16.

1
2

Substitution of Trustee recorded in the Official Records of Kern County, California, as

Doc. No. 118537

3

17.

4

No. 131229

5

18.

6

Notice of Default recorded in the Official Records of Kern County, California, as Doc.

Notice of Trustee’s Sale recorded in the Official Records of Kern County, California, as

Doc. No. 020194

7

19.

Notice of Postponement Letter, dated March 11, 2015

8

20.

Trustee’s Deed Upon Sale recorded in the Official Records of Kern County, California,

9

as Doc. No. 057029

10

21.

Affidavit of Claim for Surplus Funds for State Farm Mutual Automobile Ins. Co.

11

22.

Abstract of Judgment recorded in the Official Records of Kern County, California, as

12

Doc. No. 039897

13

23.

Notice of Federal Taxes Due from Internal Revenue Service

14

24.

Deed of Trust and Assignment of Rents recorded in the Official Records of Kern

15

County, California, as Doc. No. 034898
25.

Grant Deed recorded in the Official Records of Kern County, California, as Doc. No.

18

26.

Notice of Federal Tax Lien recorded in the Official Records of Kern County, California,

19

as Doc. No. 22713

20

27.

16
17

21

034896

Doc. No. 9539
28.

Release of Lien recorded in the Official Records of Kern County, California, as Doc. No.

29.

PACER Docket for (and relevant filings in) U.S. Bankruptcy Court for the Eastern

22
23
24
25
26
27
28

Notice of State Tax Lien recorded in the Official Records of Kern County, California, as

147033

District of California Case No. 12-16370
30.

Consent Judgment entered in U.S. District Court for the District of Columbia Case No.

Consent Judgment entered in U.S. District Court for the District of Columbia Case No. 12-0361.
31.

PACER Docket for U.S. District Court for the District of Columbia Case No. 12-0361
15

1

32.

Making Home Affordable Program Handbook for Servicers

2

33.

Appraisal Report prepared by Gary Crabtree

3

34.

Photographs of real property located at 3425 Rancho Sierra Street, Bakersfield, CA

35.

Substitution of Trustee and Full Reconveyance recorded in the Official Records of Kern

4
5
6
7
8

93306

County, California, as Doc. No. 002863
36.

Declaration of Frank Cornejo in Support of Opposition to Motion for Summary

Judgment

9

37.

Declaration of Dora Cornejo in Support of Opposition to Motion for Summary Judgment

10

38.

Telephone recordings between Ocwen and Plaintiffs for period of January 2015 through

11

May 20, 2015

12

39.

Stewart Title of Sacramento Closing Document

13

40.

Letter to Plaintiffs, dated November 24, 2010

14

41.

Letter to Plaintiffs, dated April 12, 2010

15

42.

Letter to Plaintiffs, dated January 5, 2012

16

43.

Letter to Plaintiffs, dated March 20, 2012

17

44.

Letter to Plaintiffs, dated July 11, 2012

18

45.

Letter to Plaintiffs, dated July 30, 2012

19

46.

Letter to Plaintiffs, dated November 9, 2012

20

47.

Letter to Plaintiffs, dated December 11, 2012

21

48.

Letter to Plaintiffs, dated January 31, 2013

22

49.

Letter to Plaintiffs, dated April 11, 2013

23

50.

Letter to Plaintiffs, dated May 3, 2013

24

51.

Letter to Plaintiffs, dated May 9, 2013

25

52.

Letter to Plaintiffs, dated June 10, 2013

26

53.

Letter to Plaintiffs, dated July 18, 2013

27

54.

Letter to Plaintiffs, dated July 30, 2013

28

55.

Letters to Plaintiffs, dated August 6, 2013
16

1

56.

Letter to Plaintiffs, dated August 16, 2013

2

57.

Letter to Plaintiffs, dated September 10, 2013

3

58.

Letter to Plaintiffs, dated September 23, 2013

4

59.

Letter to Plaintiffs, dated November 18, 2013

5

60.

Letter to Plaintiffs, dated August 20, 2013

6

61.

Letter to Plaintiffs, dated October 7, 2013

7

62.

Letters to Plaintiffs, dated October 29, 2013

8

63.

Letter to Plaintiffs, dated November 27, 2013

9

64.

Letter to Plaintiffs, dated December 6, 2013

10

65.

Letter to Plaintiffs, dated April 6, 2014

11

66.

Letter to Plaintiffs, dated May 13, 2014

12

67.

Letter to Plaintiffs, dated June 25, 2014

13

68.

Letter to Plaintiffs, dated October 17, 2014

14

69.

Letter to Plaintiffs, dated October 24, 2014

15

70.

Letter to Plaintiffs, dated February 24, 2014

16

71.

Letter to Plaintiffs, dated May 13, 2014

17

On or before September 9, 2016, counsel SHALL meet and confer to discuss any disputes

18

related to the above listed exhibits and to pre-mark and examining each other’s exhibits. Any exhibits

19

not previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is

20

received by August 30, 2016.

21

1.

At the exhibit conference, counsel will determine whether there are objections to the

22

admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one listing

23

Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel must

24

have a complete set of their proposed exhibits in order to be able to fully discuss whether evidentiary

25

objections exist. Thus, any exhibit not previously provided in discovery SHALL be provided at least

26

five court days in advance of the exhibit conference.

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28

2.

At the conference, counsel shall identify any duplicate exhibits, i.e., any document which

both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit and
17

1
2

numbered as directed above. Joint exhibits SHALL be admitted into without further foundation.
All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1,

3

JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation PX

4

(e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501

5

preceded by the designation DX (e.g. DX501, DX502, etc.). The Parties SHALL number each page of

6

any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.).

7
8
9

If originals of exhibits are unavailable, the parties may substitute legible copies. If any document
is offered that is not fully legible, the Court may exclude it from evidence.
Each joint exhibit binder shall contain an index which is placed in the binder before the exhibits.

10

The index shall consist of a column for the exhibit number, one for a description of the exhibit and one

11

column entitled “Admitted in Evidence” (as shown in the example below).
INDEX OF EXHIBITS

12

ADMITTED

13
14
15

EXHIBIT#
3.

DESCRIPTION

IN EVIDENCE

As to any exhibit which is not a joint exhibit but to which there is no objection to its

16

introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be

17

indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction

18

and motion of the party, without further foundation.

19

4.

Each exhibit binder shall contain an index which is placed in the binder before the

20

exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three

21

columns as shown in the example below.
INDEX OF EXHIBITS

22

ADMITTED

23
24
25
26
27
28

EXHIBIT#
5.

DESCRIPTION

OBJECTION

OTHER

IN EVIDENCE

FOUNDATION

OBJECTION

On the index, as to exhibits to which the only objection is a lack of foundation, counsel

will place a mark under the column heading entitled “Admissible but for Foundation.”
6.

On the index, as to exhibits to which there are objections to admissibility that are not

based solely on a lack of foundation, counsel will place a mark under the column heading entitled
18

1

“Other Objections.”
After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four

2
3

complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the

4

Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on September 23, 2016.

5

Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the

6

Courtroom Clerk.

7

7.

8
9

L.

The Parties SHALL number each page of any exhibit exceeding one page in length.

DISCOVERY DOCUMENTS
The following is a list of discovery documents – portions of depositions, answers to

10

interrogatories, and responses to requests for admissions – that the parties expect to offer at trial.

11

NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE

12

ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER

13

SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local

14

Rule 281(b)(12).

15

Plaintiffs intend to offer the following discovery documents at trial:

16

1.

Deposition transcript for Rashard Blanchard (Ocwen’s Person Most Knowledgeable).

17

2.

Defendant Ocwen’s Responses to Request for Production, Set One propounded by

18

Plaintiffs.

19

3.

20

Plaintiffs.

21

4.

22
23
24

Defendant Ocwen’s Responses to Requests for Admission, Set One propounded by

Defendant Western Progressive’s Responses to Requests for Production, Set One

propounded by Plaintiffs.
5.

Defendant Western Progressive’s Responses to Requests for Admission, Set One

propounded by Plaintiffs.
Defendant U.S. Bank’s Responses to Requests for Admission, Set One propounded by

25

6.

26

Plaintiffs.

27

7.

28

Defendants intend to offer the following discovery documents at trial:

Deposition transcript for Hernan Ernie Cortez.

19

1

1.

Deposition Transcript for Frank Cornejo.

2

2.

Deposition Transcript for Dora Cornejo.

3

3.

Deposition Transcript for Hernan Ernie Cortez.

4

4.

Response to Deposition Subpoena from Franklin & Associates.

5

5.

Response to Deposition Subpoena from Kai Czak, Inc.

6

6.

Plaintiff Frank Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Requests for

7

Admission, Set One.
7.

8
9

Production of Documents, Set One.
8.

10
11

9.

10.

Plaintiff Dora Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Requests for

Production of Documents, Set One.
11.

16
17

Plaintiff Dora Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Requests for

Admissions, Set One.

14
15

Plaintiff Frank Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Interrogatories,

Set One.

12
13

Plaintiff Frank Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Requests for

Plaintiff Dora Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Interrogatories,

Set One.
Plaintiff Frank Cornejo’s Responses to Ocwen Loan Servicing, LLC’s Requests for

18

12.

19

Admission, Set One

20

13.

21

In the event the parties wish to admit any portion of a discovery document, the specific

22

discovery request, e.g., interrogatory, request for admission, must be redacted so that any extraneous

23

request/response is omitted.

24

M.

27
28

FURTHER DISCOVERY OR MOTIONS
No further discovery is sought by either party.

25
26

Deposition Transcript for Rashad Blanchard

N.

MOTIONS IN LIMINE
Any party may file motions in limine. The purpose of a motion in limine is to establish in

advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of
20

1

Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the

2

district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38,

3

40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997).

4

The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the

5

moving party establishes that the evidence clearly is not admissible for any valid purpose. Id.
In advance of filing any motion in limine, counsel SHALL meet and confer to determine

6
7

whether they can resolve any disputes and avoid filing motions in limine. Along with their

8

motions in limine, the parties SHALL file a certification demonstrating counsel have in good faith

9

met and conferred and attempted to resolve the dispute. Failure to provide the certification may

10

result in the Court refusing to entertain the motion.
Any motions in limine must be filed with the Court by September 2, 2016. The motion must

11
12

clearly identify the nature of the evidence that the moving party seeks to prohibit the other side from

13

offering at trial. Any opposition to the motion must be served on the other party, and filed with the

14

Court by September 9, 2016. The Court sets a hearing on the motions in limine on September 15,

15

2016, at 9:30 a.m. Appearances via Courtcall are authorized.
The parties are reminded they may still object to the introduction of evidence during trial.

16
17

O.

STIPULATIONS
The Parties have had discussions on a possible stipulation setting the fair market value of the

18
19

Property at the time of the Foreclosure Sale. These discussions are ongoing.

20

P.

None.

21
22

AMENDMENTS/ DISMISSALS

Q.

SETTLEMENT NEGOTIATIONS
The Parties have engaged in periodic settlement discussions throughout the pendency of this

23
24

case. Though they are amenable to participating in a settlement conference, due to the short time

25

remaining before trial, the Court is unable to accommodate this request. However, the parties are urged

26

to explore settlement discussions through informal means or to secure the assistance of a private

27

mediator.

28

///
21

1

R.

None

2
3

S.

T.

U.

10

ATTORNEYS’ FEES
The Parties agree that the matter of the award of attorneys’ fees to the prevailing party will be

8
9

APPOINTMENT OF IMPARTIAL EXPERTS
None requested.

6
7

SEPARATE TRIAL OF ISSUES
None.

4
5

AGREED STATEMENT

handled by motion in accordance with Local Rule 293.
V.

TRIAL DATE/ ESTIMATED LENGTH OF TRIAL
Jury trial is set for September 26, 2016, at 8:30 a.m. before the Honorable Jennifer L. Thurston

11
12

at the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last 4-7

13

days.

14

W.

TRIAL PREPARATION AND SUBMISSIONS

15

1.

Trial Briefs

16

The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party

17

wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before

18

September 16, 2016.

19

2.

20

The parties are required to file their proposed voir dire questions, in accordance with Local Rule

21

Jury Voir Dire

162.1, on or before September 16, 2016.

22

3.

Jury Instructions & Verdict Form

23

The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with

24

Local Rule 163 and their proposed verdict form on one another no later than September 2, 2016. The

25

parties shall conduct a conference to address their proposed jury instructions and verdict form no later

26

than September 9, 2016. At the conference, the parties SHALL attempt to reach agreement on jury

27

instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and

28

verdict form no later than September 16, 2016, and identify such as the agreed-upon jury instructions
22

1

and verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury

2

instructions and joint verdict form (in Word format) to [e-mail].
If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon

3
4

certain specific jury instructions and verdict form, the parties shall file their respective proposed

5

(disputed) jury instructions and proposed (disputed) verdict form no later than September 16, 2016,

6

and identify such as the disputed jury instructions and verdict forms. At the same time, the parties

7

SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed)

8

verdict form (in Word format) to [e-mail].

9

In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury

10

Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict

11

forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s,

12

defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction

13

describing the subject matter, the complete text of the instruction, and the legal authority supporting

14

the instruction. Each instruction SHALL be numbered.

15

4.

Statement of the Case

16

The parties SHALL file a joint non-argumentative, brief statement of the case which is suitable

17

for reading to the jury at the outset of jury selection on or before September 16, 2016. In the event

18

they cannot agree on a joint statement, each side SHALL file a non-argumentative, brief statement of

19

the case on or before September 16, 2016.

20

X.

OBJECTIONS TO PRETRIAL ORDER

21

Any party may, within 10 days after the date of service of this order, file and serve written

22

objections to any of the provisions set forth in this order. Such objections shall clearly specify the

23

requested modifications, corrections, additions or deletions.

24

Y.

None.

25
26

MISCELLANEOUS MATTERS

Z.

COMPLIANCE

27

Strict compliance with this order and its requirements is mandatory. All parties and their

28

counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply with
23

1

this order and its requirements.

2
3
4
5

IT IS SO ORDERED.
Dated:

August 29, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

6
7
8
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10
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12
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15
16
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19
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24
25
26
27
28
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