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Segundina C. Cruz
Sergio A. Cruz, Jr.
14798 Avenida Anita
Chino Hills, CA 91709
Telephone: (626) 869-6292

Plaintiffs In Pro Per

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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SEGUNDINA C. CRUZ AND SERGIO A.

CRUZ, JR,

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PLAINTIFFS

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v.

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WELLS FARGO BANK, N.A., WELLS

FARGO HOME MORTGAGE, A DIVISION
OF WELLS FARGO BANK, N.A., BARRETT,
DAFFIN, FRAPPIER, TREDER, & WEISS,
LLP,AND DOES 1-100, INCLUSIVE,
DEFENDANTS

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CASE NO: 5:15-cv-01427-TJH (KKx)

PLAINTIFFS OPPOSITION TO
MOTION TO DISMISS COMPLAINT,
MEMORANDUM OF POINTS AND
AUTHORITIES, AND PROPOSED
ORDER
OPPOSITION TO REQUEST FOR
JUDICIAL NOTICE
HEARING DATE: AUGUST 31ST, 2015
HEARING PLACE: CTRM 17
HEARING TIME: UNDER SUBMISSION
HON. TERRY H. HATTER, JR.

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Please be advised and

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take notice that at the above-mentioned date, time, and place, Plaintiffs Segundina Cruz and Sergio A.

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Cruz, Jr. will and do oppose the request for judicial notice presented against them by Wells Fargo

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Bank, N.A. Said opposition will be based on the complaint, the accompanying memorandum of points

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and authorities, any exhibits, the other documents on file in this case, the opposition to the request for

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judicial notice, the arguments of the parties, such oral and documentary evidence as may be presented

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at any hearing related to the motion, and on such other information as the Court may deem appropriate.

OPPOSITION TO REQUEST FOR JUDICIAL NOTICE_________________________

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Segundina C. Cruz

Date

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_________________________

Sergio A. Cruz, Jr.

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_________________________
Date

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MEMORANDUM OF POINTS AND AUTHORITIES

The request for judicial notice should be denied with relation to Exhibits H and I. Wells Fargo
claims that Plaintiffs are in default, but their only evidence of this is Wells Fargos own claims in the
NOD (Notice of Default) and NOT (Notice of Trust).

OPPOSITION TO REQUEST FOR JUDICIAL NOTICE

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Federal Rule of Evidence 201 (b) says that a court

may take judicial notice of a fact that
(1) is generally known within the trial courts territorial
jurisdiction; or

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(c) Taking Notice. The court:

(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary
information.
Rule 201 focuses on judicial notice of facts, not documents, and therefore a court can take judicial
notice of some of the information in a document, and refuse to take judicial notice of other information
in the same document, if the source of the other information can reasonably be questioned.
Here, the Court may take judicial notice of the fact that a Notice of Default, and a Notice of Sale,
were filed, with relation to the property, but may not take judicial notice of the purported default that

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was the basis of the Notice of Default and Notice of Sale, or the amount of the past due balance

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allegedly owed to Wells Fargo by the Cruz family. This is because the existence of the alleged default,

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and the amount of the alleged default, cannot be accurately and readily determined from sources

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"whose accuracy cannot reasonably be questioned". In effect, Defendants placed the information

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about the Cruz family's alleged default, and the amount of their alleged past due balance, in the Notice

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of Default or Notice of Sale.

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Defendants have not stated where they got the information about the existence or the amount of the
Cruz family's default, which appears in the Notice of Default or Notice of Sale. Therefore, the Court
cannot be sure that this information came from a source whose accuracy "cannot reasonably be
questioned". Defendants could potentially have made up the amount of the past due balance on the

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Cruz family's mortgage which is listed in the Notice of Default and Notice of Sale. Defendants are the

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ones who filed both the Notice of Default and the Notice of Sale.

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Defendants most likely got the information concerning the nature and existence of the alleged
default from their business records, which are not subject to judicial notice, but are subject to potential
impeachment just like most other forms of evidence. The business records also have not been
introduced. Therefore, the Court cannot consider any contents which these records might contain.
The Cruz family therefore objects to judicial notice of Exhibits H and I to the motion to dismiss.
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE
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This is important because certain parts of the

Defendants' arguments depend upon their Exhibits H

judicial notice of the entirety of the Notice of Default (Exhibit H to the Notice of Default), to prove

this. The Court should not take judicial notice of the entirety of the Notice of Default., or Notice of

Sale.

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Even if the Court takes judicial notice of the entirety of the Notice of Default and Notice of Sale,
these documents are only being used to argue that the Cruz family fell into default after Wells Fargo
unlawfully refused them a permanent loan modification. Therefore, these documents really show that
the Cruz family continues to suffer because of Wells Fargo, since they are now closer to foreclosure
because of Wells Fargo's actions, which are discussed in the complaint. The very fact that the Notice

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of Default and Notice of Sale were recorded shows the harm, which is discussed in the first, third,

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fifth, sixth, and seventh and eighth causes of action, that Wells Fargo caused the Cruz family. The

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Cruz family suffered harm because they are now closer to foreclosure than they were previously. Any

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default that the Cruz family may have experienced would have been partially or fully caused by the
actions of Wells Fargo.

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_________________________
Segundina C. Cruz
_________________________
Date

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_________________________
Sergio A. Cruz, Jr.
_________________________
Date

OPPOSITION TO REQUEST FOR JUDICIAL NOTICE

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OPPOSITION TO REQUEST FOR JUDICIAL NOTICE

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