2013-00150090-CU-CL

National Collegiate Student Loan vs. David Baker

Nature of Proceeding:      Motion to Quash Service of Summons

Filed By:    Baker, David

The motion of Defendants David Baker (“D. Baker”) and Stephanie Baker (“S. Baker”)
(collectively the “Bakers”) to quash service of summons is DENIED in part and
DROPPED in part.

Plaintiff National Collegiate Student Loan Trust 2005-3 (“NCSLT”) is a Delaware
Statutory Trust.  It commenced this action to collect funds allegedly owed pursuant to
an educational loan agreement.  The complaint contains causes of action for breach of
written contact and common counts.

Preliminarily, the court notes its previously expressed concern that, because NCSLT is
a trust, it might lack standing to litigate in this court.  The court directed to parties to
brief the issue, and NCSLT submitted supplemental points and authorities.  The
Bakers did not comply with the court’s order and failed to submit supplemental briefing.
The court construes this failure as the Bakers’ concession on the merits of NCSLT’s
supplemental brief.  The Bakers are advised that future failures to comply with court
orders may result in the imposition of sanctions.

NCSLT has explained in its supplemental brief that, although it is a “Delaware statutory
trust,” it is actually an independent legal entity and an unincorporated association
entitled to litigate in California courts as such.  (See Cal. Code Civ. Proc. § 369.5(a).)
The court thus finds that NCSLT has legal standing and that the court has jurisdiction
over the matter.

Turning to the merits of the motion, the Bakers argue that service of summons should
be quashed because Sacramento County is not a proper venue.  Thus, the Bakers
conflate the issue of venue with the issue of proper service of process.  The court does
not construe the motion as one for change of venue because the Bakers have not
requested such a change.  Rather, they argue that NCSLT may not advance this
lawsuit because venue is improper.

The court construes the motion as denominated, i.e., one to quash service of
summons.  The burden is on NCSLT to prove that proper service was made.  (See
th
Summers v. McClanahan (2006) 140 Cal.App.4   403, 413.)

As to S. Baker, the motion is denied.  There is a proof of substitute service in the
court’s file, and the Bakers have not argued that the proof of service is inaccurate.  On
this record, the court cannot conclude that S. Baker’s motion to quash should be
granted.

As to D. Baker, the only proof of service in the court’s file indicates that D. Baker was
personally served on November 27, 2013–after the instant motion was filed.
Moreover, although counsel for NCSLT has filed a declaration indicating that both
Bakers were substitute-served, the court does not credit this testimony as it relates to
D. Baker.  Thus, it appears that there was nothing to quash when D. Baker filed his
motion to quash.  Accordingly, D. Baker’s motion is dropped from the calendar.  The              court expresses no opinion about the sufficiency of service of summons on D. Baker
after the instant motion was filed.

The court notes that the Bakers did not serve their moving papers with sufficient notice
of the hearing pursuant to Code of Civil Procedure § 1005(b).  (See also Cal. Code
Civ. Proc. §§ 12-12c.)  The court has entertained the motion on the merits because
NCSLT filed and served a substantive opposition.  In the future, however, the Bakers
must file and serve court documents in compliance with CCP § 1005(b), where
applicable.

NCSLT’s request for judicial notice is UNOPPOSED and GRANTED.

Conclusion

S. Baker’s motion is DENIED.

D. Baker’s motion is DROPPED.

S. Baker is directed to file and serve her answer no later than January 13, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.

Item  7     2013-00150092-CU-CL

National Collegiate Student Loan vs. David Baker

Nature of Proceeding:    Motion to Quash Service of Summons

Filed By:  Baker, David

The motion of Defendants David Baker (“D. Baker”) and Stephanie Baker (“S. Baker”)
(collectively the “Bakers”) to quash service of summons is DENIED in part and
DROPPED in part.

Plaintiff National Collegiate Student Loan Trust 2005-3 (“NCSLT”) is a Delaware
Statutory Trust.  It commenced this action to collect funds allegedly owed pursuant to
an educational loan agreement.  The complaint contains causes of action for breach of
written contact and common counts.

Preliminarily, the court notes its previously expressed concern that, because NCSLT is
a trust, it might lack standing to litigate in this court.  The court directed to parties to
brief the issue, and NCSLT submitted supplemental points and authorities.  The
Bakers did not comply with the court’s order and failed to submit supplemental briefing.
The court construes this failure as the Bakers’ concession on the merits of NCSLT’s
supplemental brief.  The Bakers are advised that future failures to comply with court
orders may result in the imposition of sanctions.

NCSLT has explained in its supplemental brief that, although it is a “Delaware statutory
trust,” it is actually an independent legal entity and an unincorporated association
entitled to litigate in California courts as such.  (See Cal. Code Civ. Proc. § 369.5(a).)
The court thus finds that NCSLT has legal standing and that the court has jurisdiction
over the matter.                  Turning to the merits of the motion, the Bakers argue that service of summons should
be quashed because Sacramento County is not a proper venue.  Thus, the Bakers
conflate the issue of venue with the issue of proper service of process.  The court does
not construe the motion as one for change of venue because the Bakers have not
requested such a change.  Rather, they argue that NCSLT may not advance this
lawsuit because venue is improper.

The court construes the motion as denominated, i.e., one to quash service of
summons.  The burden is on NCSLT to prove that proper service was made.  (See
th
Summers v. McClanahan (2006) 140 Cal.App.4   403, 413.)

As to S. Baker, the motion is denied.  There is a proof of substitute service in the
court’s file, and the Bakers have not argued that the proof of service is inaccurate.  On
this record, the court cannot conclude that S. Baker’s motion to quash should be
granted.

As to D. Baker, the only proof of service in the court’s file indicates that D. Baker was
personally served on November 27, 2013–after the instant motion was filed.
Moreover, although counsel for NCSLT has filed a declaration indicating that both
Bakers were substitute served, the court does not credit this testimony as it relates to
D. Baker.  Thus, it appears that there was nothing to quash when D. Baker filed his
motion to quash.  Accordingly, D. Baker’s motion is dropped from the calendar.  The
court expresses no opinion about the sufficiency of service of summons on D. Baker
after the instant motion was filed.

The court notes that the Bakers did not serve their moving papers with sufficient notice
of the hearing pursuant to Code of Civil Procedure § 1005(b).  (See also Cal. Code
Civ. Proc. §§ 12-12c.)  The court has entertained the motion on the merits because
NCSLT filed and served a substantive opposition.  In the future, however, the Bakers
must file and serve court documents in compliance with CCP § 1005(b), where
applicable.

NCSLT’s request for judicial notice is UNOPPOSED and GRANTED.

Conclusion

S. Baker’s motion is DENIED.

D. Baker’s motion is DROPPED.

S. Baker is directed to file and serve her answer no later than January 13, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.