1 11 12 CV08-01709-2643805 (Reply To in Opposition) 0204 62337 03628

REPLY TO OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FOR
TRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET ASIDE

ORDER GRANTING SUMMARY JUDGMENT
Now some of these lenders/servicers/trustees and opposing counsel (which are all owned
by the same law firm in some case, like, apparently, here) like to say my stuff is incoherent,
but what about all their documents and papers and Notices and Assignments and all that? Is
that stuff any more coherent?
REPLY TO OPPOSITION TO PLAINTIFF'SEMERGENCY MOTION FOR TRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET
ASIDE ORDER GRANTING SUMMARY JUDGMENT
!ocument "ode# $%&'
(ach "oughlin, )s*+
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2eno, N, 3&'4
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(ach"oughlin:hotmail+com
Attorney for ;laintiffs <oni and <ames
"arpentier
<A=)0 "A2;)N5I)2, )5 A>,
;laintiff
v+
AA=)0 8?N!IN@ "A2; )5A>,
!efendant

"ase No# ",4364%4&
!ept No# %
REPLY TO OPPOSITION TO
PLAINTIFF'S EMERGENCY MOTION
FOR TRO/INJUNCTION; or PLED IN
THE ALTERNATIVE; MOTION TO
SET ASIDE ORDER GRANTING
SUMMARY JUDGMENT
IN 5B) 0)"AN! <?!I"IA> !I052I"5 "A?25 A8 5B)
05A5) A8 N),A!A IN AN! 8A2
5B) "A?N5C A8 DA0BA)
F I L E D
Electronically
01-11-2012:04:18:26 PM
Joey Orduna Hastings
Clerk of the Court
Transaction # 2695149
N2"; 2?>) 74+ 2)>I)8 82A= <?!@=)N5 A2 A2!)2+++
E(b) =istakesF InadvertenceF )9cusable NeglectF Newly
!iscovered )videnceF 8raud, )tc+ An motion and upon such terms
as are Gust, the court may relieve a party or a partyHs legal
representative from a final Gudgment, order, or proceeding for the
following reasons# () mistake, inadvertence, surprise, or e9cusable
neglectF (/) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under 2ule '&(b)F ($) fraud (whether heretofore denominated
intrinsic or e9trinsic), misrepresentation or other misconduct of an
adverse partyF (.) the Gudgment is voidF or, (') the Gudgment has
been satisfied, released, or discharged, or a prior Gudgment upon
which it is based has been reversed or otherwise vacated, or it is no
longer e*uitable that an inGunction should have prospective
application+ 5he motion shall be made within a reasonable time,
and for reasons (), (/), and ($) not more than 7 months after the
proceeding was taken or the date that written notice of entry of the
Gudgment or order was served+ A motion under this subdivision (b)
does not affect the finality of a Gudgment or suspend its operation+
5his rule does not limit the power of a court to entertain an
independent action to relieve a party from a Gudgment, order, or
proceeding, or to set aside a Gudgment for fraud upon the court+
Drits of coram nobis, coram vobis, audita *uerela, and bills of
review and bills in the nature of a bill of review, are abolished, and
the procedure for obtaining any relief from a Gudgment shall be by
motion as prescribed in these rules or by an independent action+E
Apposing counsel BunterIs . / Apposition is e9cerpted here (with the undersigned
interGections in bold# E5hereafter 2"0 undertook a lengthy review of ;laintiffs for a loan
modification+ !uring this period the foreclosure was placed on loss mitigation hold+ 5he
loan modification was no successful and the hold was removed in Actober, /4+ (And
"n!l" d#$%o&rd &#dn%" o' 'r()d #n *+#$ lo(n ,od#'#%(*#on $#*)(*#on -*+r #$ (n
(ll.(*#on *+(* ( l),/ 0123444 /(",n* !($ ,(d b" J#, C(r/n*#r onl" *o +(&
5LS/RCS /)ll *+ r). o)* #n b(d '(#*+3 (nd $)%+ ( %l(#, 'or rl#' *+ C(r/n*#r
no! $6 *o (dd *o *+#r Co,/l(#n* (nd +(& rl(* b(%6 *o *+ 7*n* /r,#$$#bl
-%on$#dr#n. *+ r)l$ rl(*d *o "$*,,#n. 'ro, $(, %#r%),$*(n%$/n7)$3 *%" (nd
8)d#%#(l %ono," '(&or$ (llo!#n. *+ C(r/n*#r$ *o do $o #n *+#$ (%*#on r(*+r *+(n
%lo)d *+ *#*l !#*+ $o, n! %($ n),br9 An Actober $, /4, Juality recorded
ASIDE ORDER GRANTING SUMMARY JUDGMENT /
Notice of 0ale as document number .4.7.''+ A copy of the Notice of 0ale is attached as
)9hibit '+ I$ #* no* ( &#ol(*#on o' NRS 142:4;4 *o +(& ( No*#% o' $(l r%ordd l$$
*+(n <4 d("$ 'ro, *+ d(* $* 'or *+ Tr)$* S(l= IF $o3 C(r/n*#r$ !#$+ *o
(,nd (nd ($$r* *+(* %()$ o' (%*#on +r#n3 $o #*$ no* lon.r 8)$* ( >?;D $%n(r#o9
0hortly thereafter, (ach "oughlin, )s*+ entered an appearance on behalf of ;laintiffs an
indicated to the undersigned that the pending =otion for 52A and/or to 0et Aside had
been or was going to be filed+ -(%*)(l3 *+ )ndr$#.nd +r#n D%l(r$ )ndr /n(l*"
o' /r8)r" *+(* S%+)lr@H#n*A (nd H)n*r n&r (d,#**d *+ )ndr$#.nd &r %()$
(n" o' *+ &(r#o)$ Tr)$* S(l$ *o b r$%+d)ld or /o$*/ond d) *o +#$
$B)(!6#n.3 b)* r(*+r3 H#n*A (nd or H)n*r (l!("$ &(.)l" r'rrd *o
%#r%),$*(n%$ *+(* r$)l*d #n *+ Tr)$* S(l b#n. ,o&d 8)$* ( d(" or $o b'or
*+ )ndr$#.nd !ro* *o *+, or $n* *+, $o, /ro/o$d Mo*#on3 &r" %)r#o)$
#ndd9 5he undersigned, in conformance with N2"; 2ule , forwarded to =r+ "oughlin
a copy of the letter dated Actober /, /4 attached as )9hibit 7+ At =r+ "oughlinIs
re*uest the foreclosure sale has been continued twice and is presently set for 8ebruary 7,
/4/+ -Mr: H)n*r'$ %+(r(%*r#A(*#on *+(* *+ 'or%l$o)r $(l !($ %on*#n)d *!#% ($
*+ )ndr$#.nd3 Mr: Co).+l#n'$ rB)$* #$ %(*.or#%(ll" '(l$ #' H#n*A (nd or
H)n*r$'$ (rl#r $*(*,n*$ #n *+(* r.(rd (r *o b bl#&d: T+ )ndr$#.nd
%o,,)n#%(* *o H#n*A or H)n*r 7%l)$#&l"3 + bl#&$ &#( ,(#l3 $o3 (ll o' *+#$ #$ #n
,(#l$ (nd ($#l" /ro&(bl9: An !ecember $, /4, eighteen months after entry of the
summary Gudgment Arder, ;laintiffs filed the pending motion+ ;laintiffs seek an inGunction
barring the foreclosure as well as damages in e9cess of K4,444, treble damages and
sanctions under case law developed by the Nevada 0upreme "ourt relating to the Nevada
=ediation ;rogram+ - A /ro.r(, *+ C(r/n*#r$ ,(" +(& l.(ll" bn (''ordd (
r#.+* *o /(r*(6 #n !r #* no* 'or *+ ')nn" b)$#n$$ o' $nd#n. #,/or*(n* no*#% (nd
$),,(r" 8)d.,n* ,o*#on$ *o on no lon.r (**orn" o' r%ord3 (ll *+
GINORMOUS "$%r#&nr'$ rror$" o' !ron. %($ n),br3 !ron. %o)r*3 !ron.
(ddr$$ on *+ %r* o' ,(#l#n.3 !ron. (ddr$$ l#$*d #n A(,$ Dl(!(r C+:11
ASIDE ORDER GRANTING SUMMARY JUDGMENT $
%rd#*or/db*or ,(*r#7 -'or,r (**orn" o' r%ord C(l$+ (nd +#$ '#r,'$ (ddr$$ !r
l#$*d9: F)r*+r3 *+ C(r/n*#r'$ !rn'* B)#* (bl *o /(r*(6 #n (ll *+ bn'#*$ o'
*+ d#$%o&r" r)l$ #n D(n6r)/*%" %o)r*3 &#$ ( &#$3 !+*+r RCS/5LS C#nd$or/A(,$
* (l !r 'r()d)ln*l" ($$r*#n. $*(nd#n.3 or ( r#.+* *o $)3 *+(* *+" !r ( r(l
/(r*" #n #n*r$*3 *+ $)''#%#n%" o' $)b8%* ,(**r 8)r#$d#%*#on *%: !r *+ !r no*
$r&d #,/or*(n* no*#%$ (nd /l(d#n.$ rl(*d *o *+(* b(n6r)/*%" (nd *+ $*("3 (n
()*o,(*#% $*(" *+(*3 #n%#dn*(ll"3 d#d no* $*o/ H#n*A 'ro, '#l#n. ( J)l" <44? Mo*#no
'or S),,(r" J)d.,n* -no* *+(* *+ C(r/n*#r$ !r &r $n* #* or r%#&d #*
d)r#n. *+ rl&(n* *#, /r#od9 D($#%(ll"3 5LS/RCS no! !(n*$ *o $("3 "+"3 !
*r#%6d "o) or %on&n#n*l"/(%%#dn*(ll" ,(n(.d *o ,(6 $)r "o) .)"$ d#dn'* 6no!
!+(* *#, *+ .(, !($ or !+r #* !($ b#n. /l("d3 (nd *+r'or "o) d#dn'* .* *o
do *+ 'or%lo$)r ,d#(*#on /ro.r(, (nd $o .o (+(d3 ($6 *+ %o)r* *o *(6
,(nd(*or" or /r$)($#& 8)d#%(l no*#% o' L"&(3 P($#ll($ (nd *r" *o (r.) (ll *+(*
"For%lo$)r D'n$ Doo6" $*)''3 b)* #*$ *oo l(* .)"$3 $orr"E" D(lon"3 (nd *+
C(r/n*#r$ do !(n* *o (dd *+ %l(#,$ (nd %()$$ o' (%*#on (nd rB)$* $)%+ 8)d#%(l
no*#% b *(6 ($ ,n*#ond #n *+ 7%r/* 'ro, $o, #n*rn* b(%6(ll" $+(d"
"For%lo$)r D'n$ H(ndboo6" *"/ *+#n.F " Pr'%*#on o' C+(#n o' T#*l In
J(n)(r" <41 1 3 *+ M($$(%+)$**$ S)/r, Co)r* #$$)d ( d%#$#on #n U:S: DANG
NATIONAL ASSOCIATION VS: An*on#o IDANEH #n !+#%+ (l# *+ J)$*#%$
)n(n#,o)$l" (.rd: In ordr 'or *+ b(n6 *o b (bl *o 'or%lo$3 *+" ,)$* $+o! (
/r'%*#on o' %+(#n o' *#*l3 bo*+ #n *+ Dd o' Tr)$UMor*.(. (nd *+ Pro,#$$or"
no*: I* !($ (l$o r)ld *+(* ( bl(n6 ($$#.n,n* !($ no* (%%/*(bl /roo' o' /r'%*#on
o' *#*l 'or *+ /ro,#$$or" no*: T+#$ #$ HUGE: Yo) $+o)ld b r'rr#n. *o *+#$ %($
(nd ,o*#on *+ %o)r* *o *(6 ",(nd(*or" 8)d#%#(l no*#%" 'or *+ r)l#n. d%#$#on #n
"o)r %($ #' "o) (r %on$#dr#n. do#n. (n" $or* o' l#*#.(*#on3 !+*+r ($ ( d'nd(n*
#n ( J)d#%#(l S*(* or ($ ( Pl(#n*#'' #n ( Non@J)d#%#(l S*(*: Hr (r *+ #,/or*(n*
/(#n*$ "o) nd *o )ndr$l(nd 'ro, *+#$ S)/r, Co)r* d%#$#onF 1 9 A D'%*#&
T#*l %(nno* b '#7d: T+ M($$(%+)$**$ S)/r, Co)r* r)ld *+(* *+ b(n6 +($ *o
ASIDE ORDER GRANTING SUMMARY JUDGMENT .
d,on$*r(* /r'%*#on o' *#*l (* *+ *#, *+ No*#% o' D'()l* #$ #$$)d: A d'%*#&
*#*l #$ l#6 b(d 'ood: On% 'ood +($ .on b(d3 "o) %(n n&r '#7 #* T+ $(, .o$ !#*+
*+ Dd o' Tr)$UMor*.(.: T+ "lndr" %(nno* r*ro $#.n or "r&r$ n.#nr"
*+ C+(#n o' T#*l ('*r *+ '(%*: D)* ,o$* o' *+ *#, *+#$ #$ *+ %($ !+n #* #$
+(ndld b" ( 'or%lo$)r ,#ll: T+" +(& rob(@$#.nr$ !+o$ 8ob #$ *o $#.n bo.)$
($$#.n,n*$ (nd r&r$ n.#nr *#*l$: I* #$ "o)r 8ob *o %+(lln. *+#$ /o#n* !+n
"o)r lndr /r$n*$ $)//o$d "/roo'' b'or *+ %o)r*: O'*n*#,$3 *+" !#ll br#n. #n
( /+o*o%o/" o' *+ Dd o' Tr)$* ,(d "(r$ (.o (* *+ l#, "o) %lo$d on "o)r lo(n:
T+ /+o*o%o/" do$ no* (nd %(nno* (**$* *o !+o *+ % )rrn* r(l (nd bn'#%#(r"
/(r*" #n #n*r$* #$: <9 T+ D(n6 ,)$* $+o! ( /r'%*#on o' *+ C+(#n o' T#*l 'or *+
Dd o' Tr)$*/Mor*.(. T+#$ ,(n$ *+(* (n" ($$#.n,n*$ o' *+ Pro,#$$or" no*
,)$* (l$o b r'l%*d (* I+ %o)n*" r%ordr'$ o''#% -(nd no* !#*+ MERS@I !#ll *(l6
(bo)* MERS #n ( b#l9: I' (n ($$#.n,n* o' *+ Pro,#$$or" No* #$ no* r%ordd on *+
Co)n*" R%ord$3 *+n /r'%*#on #$ no* (%+#&d: C+(* *+#$ ,(n$ #$3 #' "o) %(n /ro&
*+(* "o)r no* +($ bn $%)r#*#Ad or $old *o (no*+r /(r*" (!(" 'ro, "o)r or#.#n(l
lndr3 (nd *+(* *+" d#d no* r%ord *+#$ ($$#.n,n* (* *+ Co)n*" R%ordr'$ O''#%3
*+n b#')r%(*#on o%%)rrd:": A**(%+d #$ $o, SEC '#l#n. *+#n. *+(* $,$ *o #nd#%(*
*+(* *+ C(r/n*#r'$ Lo(n !($ $%)r#*#Ad (nd ( $%)r#*#A(*#on ()d#* #$ %)rrn*l"
b#n. %ond)%*d *o ')r*+r 7/l#%(* *+o$ #$$)$: 9 All e9hibits referenced herein are
attached to this =otion+ J>0 respectfully re*uests Gudicial notice of the deed of trust, as
well as the other e9hibits -O' %o)r$ 5LS rB)$*$ *+(*3 *+" !(n* *o $6#/ *+ /(r*$
!+r (ll *+ /robl,$ (nd $lo//" !or6 *+" d#d3 -(nd HIn*A (nd H)n*r'$ l(! '#r,3
M%C(r*+" Ho*+)$ OCNS EITHER 5LS OR RCS3 OF THIS I HAVE DEEN
ASSURED DY LEADING NEVADA FORECLOSURE DEFENSE ATTORNEYS93
*+" 8)$* !(n* *+ (,l#or(*#&//(ll#(*#& ''%*$ o' "8)d#%(l no*#%" b#n. *(6n *o
($$)(. (ll *+ *rr#bl d'%*$ ( *+oro).+ r&#! o' *+o$ do% ),n*$ !#ll r&(l3
!#*+ (ll *+ %l($$#% +#*$ b#n. /l("d3 "o) 6no! *+ d(l3 *+ o)* o' ordr r%ord#n. o'
*+#$ (nd *+(*3 *+ l(%6 o' ( $#.n(*)r on *+#n.$3 lo! l&l ,/lo"$ $#.n#n. (''#d(&#*
ASIDE ORDER GRANTING SUMMARY JUDGMENT '
*+(* $6 *o 7%#$ (nd nd *o (%*)(ll" /ro& ($$#.n,n*$ or $*(nd#n. or *+(* *+"
.)"$ (r ( r(l /(r*" #n #n*r$*3 *+(* *+ 8)d.,n* #$n'* &o#d3 *+(* *+ no* (nd dd
'ollo!d *+ $(, /(*+3 *+(* *+$ .)"$ d#dn'* .* ( *(7 %rd#* 'or ( lo$$ onl" *o .* *+
bon)$ o' $ll#n. #* 'or $o, ,or ,on"::::(nd !+" do$ $o, #*r(*#on o' "A(,$
Ho, Mor*(.F)nd#n.Lnd#n.Sr%#&#n.So,*+#n.OrO*+r (//(r l#6 ( A#ll#on
*#,$ on !!!:/(%r:.o& #n *+ b(n6r)/*%" $%*#on= All B)$*#on$ *+(* nd (n$!r3
b)* #' ( Tr)$* S(l #$ %ond)%*d3 !ll3 #*$ 6#nd o' *o).+ *o do /+"$#%(l *+r(/" on ( n
(r, ('*r "o) +(& (,/)*(*d #*:9 All e9hibits hereto should be Gudicially noticed
because they are a public record in the Dashoe "ounty 2ecorderIs office+ N20 .%+$4F
N20 .%+'4F <ory v+ -ennight, & Nev+ %7$,%77, './ ;+/d .44, .4$ (&%')+ -(%*)(ll"3
no3 !+" don'* "o) .)"$ .o (+(d (nd d,on$*r(* *+(* !+(*&r "o) .)"$ d#d /)* #n
*+ R%ordr'$ O''#% #$ #n %o,/l#(n% !#*+ *+ rB)#r,n*$ o' *+ l(!3 r(*+r *+(n
($6 'or *+#$ Co)r* *o *(6 "o)r !ord 'or #*9 5he =otion repeats verbatim the entirety of
;laintiffsI original complaint, incorrectly alleges that the substitution of trustee was never
recorded -,or l#6 #* !($n'* (//ro/r#(*l" r%ordd9 and incoherently suggests that
;laintiffs were creditors -*+ C(r/n*#r$3 or r(*+r J(,$ C(l$+ (nd +#$ '#r, (nd *+
<;2I S)nn" Slo/ ;?JIJ (ddr$$ 'or *+ CAr/n*#r'$ +o, ,(d #*$ !(" #n*o *+
A(,$ Dl(!(r C+:11 b63 l#$*#n. C(l$+ (nd +#$ '#r,$ Do)bl R (ddr$$3 r(*+r *+(n
*+ C(r/n*#r$ l($* 6no!n (ddr$$3 !ll ('*r *+#$ Co)r* n*rd (n ORdr (llo!#n.
C(l$+'$ !#*+dr(!(l3 $o:::,("b *+ !r l#$*d #n *+ db*or ,(*r#7/%rd#*or ,(*r#73
!+(*&r3 *+" !r l#$*d3 b)* !#*+ (n (ddr$$ *+(* H#,bl,(n (nd A(,$ +(d bn
$r&d (n Ordr /)**#n. *+, on no*#% *+(* #* !($n'* .ood (n",or:::9of the !elaware
Aames Bome >oan bankruptcy estate+ 5he fact that $+ ;laintiffs cannot establish e9cusable
neglect 5he sole basis in support of ;laintiffsI claim -HOLD ON3 HUNTER3 THE
"SOLE DASIS" REALLY= REALLY= AREN'T YOU FORGETTING ALL THE
CRONGLY ADDRESSED CERTIFICATES OF MAILING3 THE CRONG
ADDRESS LISTED IN THE DELACARE CH:11 DG FOR AAMES3 ETC:3 ETC:=
MAYDE THE CONFUSION IS THAT SO MANY OF THE DASIS FOR
ASIDE ORDER GRANTING SUMMARY JUDGMENT 7
EKCUSADLE NEGLECT OVERLAP CITH FRAUD3 IS THAT IT=9 of e9cusable
neglect is that the =otion for 0ummary <udgment incorrectly contained "lark "ounty in
the caption of the =otion instead 4 Dashoe "ounty+ In addition, several filings correctly
citing Dashoe "ounty incorrectly refer to !epartment . instead of !epartment %+ 5his
argument is completely unavailing+ Nowhere iN ;laintiffsI =otion is there an allegation
that ;laintiffs were somehow misled to their detriment due to these scrivener errors+ -DO
NOT DELIVE THAT STATEMENT IS TRUE3 DUT3 IN AN ADUNDANCE OF
CAUTION3 THAT IS HEREDY DEING ALLEGED9 Nor is there is a single allegation
that ;laintiffs were unaware of never received the =otion for 0ummary <udgment and the
Notice of )ntry of the Arder granting summary Gudgment -DITTO3 THE
CARPENTIERS ARE MAGING EKACTLY THAT ALLEGATION AND
ADDITIONALLY3 THEY HAVE HAD UGLY PHONE CALLS CITH LOC
LEVEL EMPLOYEES IN THIS MATTER SAYING THINGS LIGE "ITS YOUR
CORD AGAINST OURS3 SO THERE"9+ In addition, ;laintiffs cite ;asillas v+ B0-"
-ank ?0A, et al+, /% Advance Apinion $& (/4) and >eyva v+ National !efault
0ervicing "orp+, et aI+, /% Nev+, Advance Apinion .4 (/4) in support of their =otion+
5hese opinions are inapplicable to the issues in this case because they are concerned only
with the re*uirements for producing documents and demonstrating standing in mediation
cases conducted under the Nevada =ediation ;rogram and the Nevada 0upreme "ourt
8oreclosure =ediation 2ules+ -NOT SO SURE THE APPLICATION OF THOSE
FINE DECISIONS IS SO LIMITED3 DUT EVEN IF IT IS3 THE CARPENTIERS
CERE DEFRAUDED OUT OF THEIR OPPORTUNITY TO PARTICIPATE IN
THAT PROGRAM3 AND SHOULD DE SO ALLOCED TO NOC IF THEY
CHOOSE9 5he issues set forth in ;laintiffsI original complaint related solely to deceptive
lending practices under N20 '&3! -NO3 NOT SOLEY3 DUT SINCE YOU ASGED3
AND JUST IN CASE3 SOME MORE 'ISSUES' ARE ADDED HERE IN A
RE5UEST THAT CARPENTIERS DE ALLOCED TO DO SO + 8inally, and most
importantly, even if the ;laintiffs were misled or were unaware =otion to 0et Aside under
ASIDE ORDER GRANTING SUMMARY JUDGMENT %
N2"; 2ule 74 must be brought within 74 days of the relevant proceeding+ -REALLY3
"L4 DAYS"= LAST TIME THE UNDERSIGNED READ NRCP L4-D9 THERE
CAS A DUNCH OF MENTIONS OF 1;4 DAYS3 DUT REGARDLESS3 THAT ONE
SECTION ADOUT THERE DEING NO SET LIMITATIONS PERIOD FOR
CHERE A JUDGMENT IS VOID3 DOTH IN LIGHT OF NRCP L4 D AND THE
INHERENT POCER OF THIS COURT3 IS UNDOUDTEDLY IN
CONTRADICTION TO THAT ESTIMADLE TREATISE "HUNTER ON RELIEF
FROM JUDGMENTS" *+(* !($ $o /ro&#dd #n o//o$#n. %o)n$l'$ O//o$#*#on9 Bere,
the =otion to 0et Aside is brought eighteen months after the relevant proceeding and is,
therefore, untimely+E And that concludes my novel legal techni*ue of e9tensively
*uoting opposing counselIs Apposition while adding in bold the undersignedIs own
interGectiosn and arguments+
5he "arpentiers hereby allege and ask this "ourt to allow them to add as causes of
action, re*uest for relief, claims etc+ the following, given that this e9cerpt from a case
involving Buston and 2"0/J>0 bear such a remarkable resemblance to the "arpentierIs
own treatment at the hands of 2"0/D>0 (like that time <im forked otu a lump sum
K%,444 payment to these guys, and they then pulled the rug out from under them in bad
faith# E!efendants !oes through 4, inclusive, are fictitious names+ ;laintiffs are
ignorant of the true names of the individuals, corporations, limited liability companies,
limited liability partnerships, partnerships, trusts and other associations so designated by
said fictitious names+ Dhen the true names are discovered, ;laintiffs will seek leave of
"ourt to amend this "omplaint and the proceedings herein to substitute the true names of
said !efendants+ ;laintiffs believe that each of the !efendants designated herein as a !oe
is liable or responsible in some manner for the events herein referred to and intentionally,
negligently, carelessly, and/or recklessly and pro9imately caused damages to ;laintiffs as
herein alleged+ 7+ ;laintiffs are informed and believe and upon such information and belief
allege that at all times material hereto, each of the !efendants was the agent and employee
of the other !efendants and was acting within the course, scope and authority of said
agencyF each !efendant approved, ratified and authoriLed the acts of each of the other
!efendants as herein allegedF each !efendant was subGect to a right of control by the other
!efendantsF each !efendant was authoriLed to act for each and all of the other !efendantsF
and each !efendant is a successor6in6interest to each ofthe other !efendants+ %+ ;laintiffs
are informed and believe and upon such information and belief allege that at all times
material hereto, each !efendant was a mere shell, instrumentality and conduit through
which each other !efendant carried on business in a corporate or partnership name,
e9ercising complete control and dominance of such business to such an e9tent that any
individuality or separateness of the corporate or partnership !efendants and each
individual did not e9ist+ 8A"5?A> A>>)@A5IAN0 3+ An or about 8ebruary /$, /447,
;laintiffs entered into a !eed of 5rust ()9hibit EIE) with =ortgage )lectronic 2egistration
0ystems, Inc+ as nominee for ?niversal American =ortgage "ompany, >>", to secure
;romissory Note and loan against the ;roperty ()9hibit E-E)+ &+ 5he ;romissory Note
indicates that at some point after ;laintiffs entered into it the loan was transferred first to
"ountrywide -ank, N+A+, and then from "ountrywide -ank, N+A+ to "ountrywide Bome
>oans, Inc+ 5he ;romissory Note produced by !efendants is endorsed in blank and as a
result of the blank endorsement, it is currently unknown who the holder thereof is+ 0ee
)9hibit E/+E 4+ An or about !ecember , /44, ;laintiffs were unable to make their
monthly payments due to their change in fmancial circumstances+ ;laintiffs attempted, to
no avail, to secure a loan modification from 2"0, who is the purported servicer of their
loan+ + -ased on information in the "lark "ounty 2ecorderIs records, 2"0 caused a
substitntion of trustees to be recorded against the ;roperty on 0eptember , /44, naming
J>0 as the 5rustee+ /+ -ased on information in the "lark "ounty 2ecorderIs records, 2"0
caused an assignment (the EAssignmentE) to be recorded against the ;roperty on November
3, /44+ ;laintiffs do not have a copy of ,said AssignmentF however, the "lark "ounty
2ecorderIs Affice database indicates that the !eed of 5rust was assigned to 8, 2)A ,
>>"+ $+ An =arch /, /4, J>0 recorded a Notice of -reach and !efault and of
)lection to "ause 0ale of 2eal ;roperty under !eed of 5rust (ENA! E) with regard to the
ASIDE ORDER GRANTING SUMMARY JUDGMENT &
;roperty+ 0ee )9hibit E$+E .+ An April , /4, J>0 posted on the door of the ;roperty an
unsigned, un6 notariLed, unrecorded, and different Notice of -reach and !efault and of
)lection to "ause 0ale of 2eal ;roperty under !eed of 5rust (ENA! /E) with regard to the
;roperty+ 0ee )9hibit E.+E 5his posting was untimely pursuant to the mandatory
re*uirements ofN20 4%+43%+ '+ An 0eptember $4, /4, J>0 recorded a Notice of 0ale+
?nfortunately, J>0 has never provided ;laintiffs with a signed Notice of 0ale+ Bowever,
J>0 has provided ;laintiffs with an unsigned, unrecorded Notice of 0ale by mail and
posting+ 0ee )9hibit E'+E Although ;laintiffs have never been provided with a signed,
notariLed Notice of 0ale, the 5rusteeIs 0ale is currently scheduled for Actober /4,/4 at
4#44 a+m+ 7+ An Actober $, /4, ;laintiffs notified 2"0 and J>0 of the violations
ofN20 M 4%+43% and demanded that NA! be rescinded+ 0ee )9hibit E7+E %+ !espite
their knowledge of the patently obvious violations of N20 M 4%+43%, 2"0 and J>0 have
failed to rescind NA! + 8I205 ">AI= 8A2 2)>I)8 (!eclaratory 2elief 6 N20 M $4+4.4
6 All !efendants) 3+ ;laintiffs re6allege each and every allegation contained herein, and
hereby incorporates them by this reference as if fully set forth below+ &+ N20 M $4+4.4
allows any person whose rightsF status or other legal relations are affected by a deed to
have the district court determine any *uestions of construction or validity arising under the
instrument and to obtain a declaration of rights, status or other legal relations thereunder+
/4+ NA! was recorded by J>0 on =arch /,/4+ 0ee )9hibit E$+E ;ursuant to N20 M
4%+43%, NA! was to be posted in a conspicuous place on the ;roperty not later than $
business days after it was recordedF thus the posting was to occur no later than =arch
/',/4+ /+ !efendant J>0 posted an unrecorded, un6notariLed, and different Notice of
!efault, on April , /4 (si9 days late)+ 0ee )9hibit E.+E Accordingly, NA! was not
timely served pursuant to N20 M 4%+43%+ //+ N20 4%+434(')(a) states that the "ourt may
declare a sale void if# E5he trustee or other person authoriLed to make the sale does not
substantially comply with the provisions of this section or any applicable provision ofN20
4%+437 and 4%+43%+E /$+ ;ursuant to A+-+ /%$ 0ec+ '+3(7)%7th >eg+ (Nv+ /4), if the
"ourt finds that J>0 did not comply with any provision of N20 "hapter 4%, the "ourt
must award to ;laintiffs an inGunction enGoining the e9ercise of the power of sale, damages
of K',444 or treble the amount of actual damages, whichever is greater and reasonable
attorneysI fees and costs+ /.+ ;laintiffs are entitled to a declaratory Gudgment that the
aforesaid NA! is null and void+ /'+ In addition, as a direct, pro9imate and necessary result
ofthe !efendants conduct, ;laintiffs have been forced to incur costs and attorneysI fees and
thus ;laintiffs seek an award of costs and attorneysI fees, and damages pursuant to statute,
decisionallaw, common law and this "ourtIs inherent powers+ 0)"AN! ">AI= 8A2
2)>I)8 (-reach of the Implied "ovenant of @ood 8aith and 8air !ealing 6 2"0) /7+
;laintiffs re6alleges each and every allegation contained herein, and hereby incorporates
them by this reference as if fully set forth below+ /%+ /3+ 2"0 is bound by enforceable
contracts with ;laintiffs+ )very contract in Nevada has imp lied into it a covenant that the
parties thereto will act in the spirit of good faith and fair dealing+ /&+ ;laintiffs are
informed and believe that 2"0 breached this covenant by acting inconsistently with its
purpose and intentF such wrongful conduct include, but are not limited to# (a) intentionally
refusing and/or failing to comply with the terms of Nevada law, and (b) failing to rescind
NA! after being put on notice of the violation of NevadaIs non6Gudicial foreclosure laws+
$4+ $+ 5hrough this and other conduct, 2"0 has denied ;laintiffsI Gustified e9pectations+
As a direct and pro9imate result of 2"0I s conduct, ;laintiffs have been, and will continue
to be, harmed in the manner herein alleged in an amount which e9ceeds K4,444+44+
DB)2)8A2), ;laintiffs pmys for Gudgment against the !efendants as follows# + 8or a
declaratory Gudgment that the aforesaid NA! and NA! / was improperly noticed in
violation ofN20 4%+43% and is null and void and shall be rescindedF /+ 8or an immediate,
preliminary and permanent inGunction enGoining all !efendants from taking any further
action against the ;roperty (including, without limitation, any attempts to sell, encumber,
or eGect ;laintiffs from the ;roperty) until this "ourt can determine the e9tent of the partiesI
rights in and to the ;roperty, and to implement verifiable controls to protect ;laintiffs from
any irreparable harm that could be caused by the !efendantsI actionsF $+ 8or an award of
general and special damages against the !efendants, Gointly and severally, in e9cess of
ASIDE ORDER GRANTING SUMMARY JUDGMENT
K4,444+44 pursuant to A+-+ /%$ 0ec+ '+3(7) %7th >eg+ (Nv+ /4)F .+ 8or an award of
treble damages against the !efendants, Gointly and severally, in e9cess ofK4,444+44
pursuant to A+-+ /%$ 0ec+ '+3(7)%7th >eg+ (Nv+ /4)F '+ 8or an order of specific
performance re*uiring the rescission of the defective NA! + 7+ 8or an award of attorneysI
fees and costs pursuant to A+-+ /%$ 0ec+ '+3(7) %7th >eg+ (Nv+ /4)F %+ 8or such other and
further relief as the "ourt may deem e*uitable, Gust and proper+E )nd of e9cerpt
incorporated to this case by reference from Buston v 2esidential "redit 0olutions et al,
"ase /#6cv64%.&6>!@ 6"DB in 8ederal "ourt (after one of the many, many magical
removals that these guys are known to do, getting these cases to 8ederal "ourt, where the
citiLens of Nevada get to have lifetime appointee 8ederal "ourt Gudges making, or
seemingly making, Nevada >aw in contravention of the doctrines of absention, comity,
etc+something so elo*uently argued against by the venerable @eof @iles, )s* (no
connection or affiliation to the undersigned, Gust a fan of his work, got it off pacer+gov for
2e# 2ule /3(G) >etter, !ocket 46%/$4 &th "ir !ocket Number# =aves v+ 8irst BoriLon
Bome >oans) in his /3< letter in =aves, attached as where the citiLens of Nevada get to
have lifetime appointee 8ederal "ourt Gudges making, or seemingly making, Nevada >aw
in contravention of the doctrines of absention, comity, etc+ something so elo*uently argued
against by the venerable @eof @iles, )s* (no connection or affiliation to the undersigned,
Gust a fan of his work) in his /3< letter in =aves, attached as E7+#b#* <:
N2"; 74(b)($) allows a party to move for relief from a Gudgment which is void,
and while motions made under N2"; 74(b) are generally re*uired to Ebe made
within a reasonable timeE and to be adGudicated according to the district courtIs
discretion, this is not true in the case of a void Gudgment+ Necessarily a motion under
this part of the rule differs markedly from motions under the other clauses of 2ule
74(b)+ 5here is no *uestion of discretion on the part of the court when a motion is
made under Nthis portion of the 2uleO+ Nor is there any re*uirement, as there usually
is when default Gudgments are attacked under 2ule 74(b), that the moving party show
that he has a meritorious defense+ )ither a Gudgment is void or it is valid+
!etermining which it is may well present a difficult *uestion, but when that *uestion
is resolved, the court must act accordingly+ -y the same token, there is no time limit
on an attack on a Gudgment as void+ + + + N)Oven the re*uirement that the motion be
made within a Ereasonable time,E which seems literally to apply + + + cannot be
enforced with regard to this class of motion+ ?nderstandably, the parties were not
attuned to our recent <acobs decision during oral argument+ Accordingly, it was
determined at that time to allow the parties to supplement their briefs in order to
determine with certainty whether, in fact, no default had been entered against @arcia
prior to the entry of the default Gudgment+ @arciaIs supplemental material supplied
additional evidence that no default was ever entered, including an affidavit by "lark
"ounty "ourt "lerk >oretta -owman attesting that no such filing e9ists in the case
file+ 2espondents also acknowledged that no default was ever entered but argue in
their supplemental brief that <acobs should not be applied retroactively, noting that
the default Gudgment at issue herein was entered prior to our <acobs decision+ 5his
argument is without merit+ 5he court in <acobs determined, consistent with law from
other Gurisdictions, that the default Gudgment entered in <acobs was void+ De
accordingly ordered the district court to grant relief from the void Gudgment, despite
the fact that the ruling in <acobs was, of course, preceded by entry of the default
Gudgment against <acobs+ If this case, rather than <acobs, were before us as a case of
first impression, we would have reached the same conclusion+ A void Gudgment is
void for all purposes and may not be given life under a theory based upon lack of
legal precedent+ @arcia v+ Ideal 0upply "o+, 4 Nev+ .&$, 3%. ;+/d %'/ (Nev+
'/&/&&.)+ 5he defective service rendered the district courtIs personal Gurisdiction
over @assett invalid and the Gudgment against her void+ 8or a Gudgment to be void,
there must be a defect in the courtIs authority to enter Gudgment through either lack of
personal Gurisdiction or Gurisdiction over subGect matter in the suit+ ;uphal v+ ;uphal,
77& ;+/d & (Idaho &3$)+ In ;rice v+ !unn, 47 Nev+ 44, %3% ;+/d %3' (&&4)+
De now hold that the filing of a motion to set aside a void Gudgment previously
entered against the movant shall not constitute a general appearance+ 0ee, e+g+,
!obson v+ !obson, 43 Nev+ $.7, $.&, 3$4 ;+/d $$7, $$3 (&&/)+ Nonetheless,
since the order was void, a Gudgment based thereon would likewise be void++ Nelson
v+ 0ierra "onstr+ "orp+, %% Nev+ $$., $7. ;+/d .4/+ ?nder N2"; 74(b) a motion to
set aside a void Gudgment is not restricted to the si9 monthsI period specified in the
rule+ N2"; '.(a) provides that the word EGudgmentE as used in these rules includes
any order from which an appeal lies+ 5herefore there is no merit to appellantsI
contention that the motion to vacate the Gudgment was not timely made+ 8oster v+
>ewis, %3 Nev+ $$4, $%/ ;+/d 7%& (Nev+ 7/&/&7/)+ A void Gudgment is subGect to
collateral attackF a Gudgment is void if the issuing court lacked personal Gurisdiction
or subGect matter GurisdictionF 0ee .& "+<+0+ <udgments M .4, at %&/ (&.% P supp+
&&)F .7 Am+<ur+/d <udgments MM 7/6'7 (&7& P supp+ &&)+
5he www+ccwashoe+com docket for this case reveals that #/46=AC6/44& 4&#$'
A= Notice +++ (imbelman, )s*+, )ric )ntry# NA5I") A8 -ANQ2?;5"C 8I>IN@
AN! A?5A=A5I" 05AC 4&6<?N6/44&
4#'& A= =tn to !ismiss +++ 0chuler6BintL, )s*+, Qristin A+ )ntry#
!)8)N!AN50I 2)0I!)N5IA> "2)!I5 0A>?5IAN0, IN"+, AN! J?A>I5C
>AAN 0)2,I") "A2;A2A5IANI0 =A5IAN 5A !I0=I00 A2 IN 5B)
A>5)2NA5I,) 8A2 0?==A2C <?!@=)N5 4&6<?N6/44&
4#'& A= Affidavit in 0upport+++ 0chuler6BintL, )s*+, Qristin A+ )ntry#
A88I!A,I5 IN 0?;;A25 A8 =A5IAN 5A !I0=I00 A2 IN5 5B)
A>5)2NA5I,) 8A2 0?==A2C <?I!@=)N5 4&6<?N6/44&
4#'& A= Notice +++ 0chuler6BintL, )s*+, Qristin A+ )ntry# NA5I") A8
>A!@=)N5 IN 0??;;A25 A8 =A5IAN 5A !I0=I00 A2 IN 5B)
A>5)2NA5I,) 8A2 0?==A2C <?!@=)N5
Dhich is interesting considering that, besides never having served a Efiling
readyE motion, yet still seeing fit to file a =otion for 0anctions against the
undersigned, opposing counsel Bunter made some threats related to the undersigned
doing this or that in relation to the automatic stay (which one, the one that didnIt
prevent BintL from filing that <uly 4& 0ummary <udgment =otion? 5he one she
send to former Attorney of 2ecord Dalsh, despite the fact the BintL was properly
served the "ourtIs Arder @ranting DalshIs Dithdrawal as Attorney of 2ecord for the
"arpenter? 5hat one?)+ 5he issue may have more life in a bankruptcy court where
issues such as RstandingS and who the Rreal party in interestS is to pursue a motion to
lift the automatic stay, or to file a proof of claim in a bankruptcy case+ 5o this e9tent,
we have discussed the in 2e ,eal case which we will try to thoroughly blog on soon+
5his is a very interesting case that deals with proof of loan ownership, standing and
real party in an AriLona -ankruptcy "ase+
2egardless, is that K,444 bond in this matter 8,4364%4& still on the books, and
wouldnIt that address the lack of a bond that opposing counsel Bunter obGected to?
5he RlendersS and loan servicers are often trying to pull fast ones in bankruptcy
courts both in filing bogus proofs of claims and in seeking to lift the automatic stay in
bankruptcy court when they have no standing and cannot prove they are the real party
in interest to file the motion I am offering my lift6stay motion with memorandum of
points and authorities i) 5he issue of standing, in the conte9t of a motion to
lift the automatic stay in regard to an alleged failure to pay on a promissory note
re*uires analysis of "alifornia "ommercial "ode law+ 5here are two threshold
*uestions for establishing standing# () has movant established an interest in the
promissory noteF and (/) is the movant entitled to enforce the note? 0ee In re
Dilhelm, .4% -+2+ at $&/F In re Aniel, No+4&6$4.'/!=, /44 D> 74&&/$ (-ankr+
N+!+ "al+ April /, /44)+ 5here is no way to determine whether a moving party is a
party in interest, real party in interest, or has standing sufficient to show a colorable
claim without consulting the applicable state law that dictates which party has the
right to enforce a loan+ In "alifornia, "ommercial "ode 0ection $$4 sets forth those
;ersons who are )ntitled 5o )nforce a negotiable instrument (hereinafter R;)5)S)#
R;erson entitled to enforceS an instrument means# (a) the holder of the instrumentF
(b) a nonholder in possession of the instrument who has the rights of a holder, (c) a
person not in possession of the instrument who is entitled to enforce the instrument
pursuant to 0ection $$4& or subdivision (d) of 0ection $.3+ (e9+ lost note) A person
may be a person entitled to enforce the instrument even though the person is not the
owner of the instrument or is in wrongful possession of the instrument+ (emphasis
added)+ 5he definition of RholderS can be found in "al+ "ommercial "ode 0ection
/4(a)(/)# RBolder,S means the person in possession of a negotiable instrument
that is?payable either to bearer or, to an identified person that is the?person in
possession+
Bad opposing counsel sent the various notices and pleadings related to the Aames
bankruptcy "h+ filing in !elaware to the correct address, rather than the address of
<ames Dalsh, )s*+, well after this "ourt had granted DalshIs Dithdrawal as Attorney
of 2ecord, then the "arpentierIs likely would have benefitted from filing something
like this#
E"alifornia >ift 0tay Apposition =otion and =emorandum of ;oints and
Authorities (3 pages)# 5his pleading is Rbattle testedS in the "entral !istrict
-ankruptcy "ourt in "alifornia+ >oan 0ervicer ("hase) motion to lift the automatic
stay was !)NI)!+ 5his document has most of the maGor bankruptcy cases that deal
with note ownership up to /4+ In re BwangF In re Deisband, In re ,eal, in re
Dalker, etc+ 5he focus is on &th circuit cases, but there are others as well+ 5his
document will save you a 5AN of time in trying to get all the cases together and
organiLe an opposition to a motion to lift the automatic stay+ 5he document flows
nicely from real party in interest, to standing, to arguing about assigning a deed of
trust without the note (all the maGor cases on that point of law are included)+ 0imply
get your facts in there and you are ready to have a great motion+E Dhich is some
motion/package some "alifornian attorney is selling online+ And, the general
consensus in this field is that the bankruptcy arena is a sticky wicket for those
opposing those like the "arpentierIs, allowing for discovery of all sorts of
uncomfortable truths, like who really owns the "arpentierIs loan, who has standing,
etc+, etc+ "ould it be more than Gust a happy coincidence (for 2"0, J>0, Aames,
Dindsor, et al, but, certainly not for the "arpentiers) that AamesI counsel listed
Dalsh and DalshIs firmIs address in the "h+ !elaware -ankruptcy filing creditor
matri9?
=ore from the Rwho owns my loanS series+ 5his time, it is the AriLona 0upreme "ourt
that is hearing oral arguments regarding whether or not assignments evidencing who owns
your loan must be recorded prior to a lender can pursue a non6Gudicial foreclosure+ Bere is
an article that deals with some of the high points of the debate+ 5he "ourt will rule on the
issues at a later date and we will keep you posted when we hearing something+ 5his comes
on the heels of AriLona trying to pass a law (0- /'&) that forces the so6called RlendersS
of securitiLed loans and other loans to record proof of ownership with the "ounty
2ecorder before they seek to foreclose+ 5he law did not get passed likely due to the
financial lobby that of course does not want such a law passed+
http#//aLstarnet+com/articleT7.c7ed776f$$76'bfc6&%/e67'%.4'4&e7cd+html De talked
on another blog post about AriLona 0- /'& that was trying to re*uire proof of ownership
recorded before a lender could foreclose+ 5he debate marches on+ As a society, do we care
if a bank is allowed to foreclose in a private non6Gudicial foreclosure sale if it cannot
legally produce evidence that it is the owner of the loan, or should be not be concerned
with whether or not the true owner of the loan is foreclosing because the borrower is in
default of a loan with no way to repay it? As it stands now the Rproduce the noteS or
Rshow me the noteS or Rwho owns my loanS argument does not have much if any traction
as far as trying to prevent a non6Gudicial foreclosure sale+ 5he issue may have more life in
a bankruptcy court where issues such as RstandingS and who the Rreal party in interestS is
to pursue a motion to lift the automatic stay, or to file a proof of claim in a bankruptcy
case+ 5o this e9tent, we have discussed the in 2e ,eal case which we will try to
thoroughly blog on soon+ 5his is a very interesting case that deals with proof of loan
ownership, standing and real party in an AriLona -ankruptcy "ase+ 0tay tuned+
ASIDE ORDER GRANTING SUMMARY JUDGMENT %
In his recent Apposition opposing counsel Bunter points to AA=)0
=A25@A@) IN,)05=)N5 52?05 /44'6/ which would strongly indicated that
the "arpentierIs loan was 0)"?2I5I()!+ It appears the EpoolE can be found here#
http#//www+secinfo+com/K/0)"/8ilings+asp?
"IQU$/&4&7PAsU-8A"0PAs8ilerU8PAsAwnerU-APAsIssuerU"0 Aames
=ortgage Investment 5rust /44'6/
S3 E7+#b#* 1 'or do%),n*(*#on rl(*d *o AAMES MORTGAGE
INVESTMENT TRUST <44>@< :
-oth <oan and <im "arpentier hereby assert violations of the 8!";A and that
their credit has been damaged tremendously, with a curios causal connection evident
from, perhpas, BunterIs listing E"lark "ountyE as the "ourt in his Guly /44 0ummary
<udgment =otion and <im failing a credit application for a damn cell phone,
apparently based on an incorrect answer to whether he ever owned real property in
"lark "ounty+ 8urther, there would appear to be some sort of issue with =c"arthy
Bolthus fee splitting with now attorneys, yeah, I get it, they own 2"0 and or J>0,
but some novel piercing theory could likely demonstrate that some improper fee
splitting/partnering with non6lawyers is occurring+ Also upon information and belief
the "arpentiers allege and amend their claims to add this# E5he 2econveyance
Argument 5his strategy comes from an attorney in "alifornia who is doing this with
his own house+ If you look at your !eed of 5rust or =ortgage, you will invariably see
language that covers the clause of Ereconveyance+E 5he language typically goes like
this# E/$+ 2econveyance+ ?pon payment of all sums secured by this 0ecurity
Instrument, >ender shall re*uest 5rustee to reconvey the ;roperty and shalt surrender
this 0ecurity Instrument and all notes evidencing debt secured by this security
agreement to trustee+ E Dhen you have a situation where# a) 5he note can be proven
that it was securitiLed, then it can be proven that the lender has, in fact, been paid in
full+ b) 5he note has been sold from -ank A, to -ank -, and then to -ank ", who is
trying to foreclose+ In any event, this strategy involves bringing a civil action against
the AriginatorF -ank A, re*uiring them to do their Gob in a breach of contract civil
action+ Cou see, a !eed of 5rust secures the promissory note+ It is the !eed of 5rust
that gives the lender the Epower of saleE clause to foreclose+ If the original lender is
forced to issue a reconveyance, then the !eed of 5rust has collapsed+ 5his is a very
effective, yet easy, method some people have used to stop foreclosure, reason being
that# a) 5he originator is often out of business and cannot respond to the civil action,
thus the homeowner wins by default+ b) 5he originator had already sold the note with
Eno recourseE, 5his means the 2)=I" or the servicer can N),)2 go back to the
originator+ c) If the Ariginator loses the civil action by default, nothing bad happens
to them+ d) If the Ariginator wins the civil action, nothing good happens to them+
BereIs the kicker+ If the Ariginator is still in business and they lose the civil action in
court, then there are very specific dire conse*uences that results+ If they lose, then it
can be proven that every loan they have ever originated that has lost their home is
the result of their gross negligence to perform their duty+ 5his means every
homeowner who has lost his or her home can sue the Ariginator+ It is for this reason
that the Ariginator often doesnIt show up, or settles when confronted with this
strategy+
5he 8air !ebt "ollections ;ractices Act As you recall, your pretender lender
becomes a debt collector after you are 74 days delin*uent+ 5his is the only way they
can negotiate a loan modification with you, because it gets discharged out of the
2)=I"+ I have included a copy of the 8!";A in the Appendi9 at the end of this
book+ Cou can also simply @oogle E8air !ebt "ollections ;ractices Act+E >etIs talk a
bit more about debt collectors+ It is a scam+ !ebt collectors depend on peopleIs
ignorance to collect their ill6gotten gains+ 5his is one of those dirty little secrets
bankers have been hiding for years+ 5hey donIt want you to know this scam+ De are
blowing their dirty laundry out in the open because we are sick of seeing so many
people suffer at the hands of bankers+ 2emember our e9ample of the farming supply
shop owner who gave me credit? 5he crops froLe and I had no money to pay back the
ASIDE ORDER GRANTING SUMMARY JUDGMENT &
loan+ 2emember, as a business owner, you can do one of three things+ .) "arry the
debt as an asset+ ') Assign it to a third party through endorsement 7) Drite it off as a
loss A debt collector is someone who (is not the original creditor) buys a debt that
has been offset, and attempts to collect it+ 5hey have purchased the debt after you
have declared it a loss+ 5his is very important for you to understand+ 5his is why the
government created a set of laws called the 8air !ebt "ollections ;ractices Act (?0"
5itle ' 0ection 7&/) in order to minimiLe the deceit and protect people+ 0adly, not
many lawyers understand this mechanic+ 5hey think debt collectors act legitimately+
>etIs say it again+ Ance a debt has been written off, it is discharged+ It cannot be
collected again+ !ebt collectors use deception to convince people that they were
assigned the debt+ 0o, how does this relate to a 2)=I" and a debt collector? As we
discussed earlier, the individual shareholders are the real and beneficial interest
holders+ 0ince the individual shareholders cannot endorse and assign their portion of
the loss, then they have to write it off as a bad debt+ 5he 5rustee of the 2)=I"
cannot do it, either, because the 5rustee is not the real and beneficial holder of the
promissory note+ 5he 2)=I" has given up that right when it chose to structure itself
as a 0pecial ;urpose ,ehicle (0;,) for the purpose of a straight ta9 pass through+
5he only way your lender can foreclose on you is to rely on the same deception
tactics used by debt collectors+ 5he 8air !ebt "ollections ;ractices Act governs the
deceptive practices also+ 2emember, a debt collector pulls off their deception through
peopleIs ignorance+ 5his is whal your ElenderE is doing 4 you+ 5hat is why in all
their communications, you will see E5his is an attempt to collect a debtE+ An original
creditor is not re*uired to disclose this+ 0o if you are in court, or if you are counsel
representing your client, it is important for you to ask opposing counsel to stipulate
the nature of their ownership of the note+ Aftentimes, opposing counsel will come
into the court room representing that their client has Erepurchased the note,E not
realiLing that they have, in fact, brought fraud before the court+ If opposing counsel is
ignorant, then they are not lying+ It is up to you to get them to stipulate the true nature
ASIDE ORDER GRANTING SUMMARY JUDGMENT /4
of the negotiable instrument through interrogatories and discoveryF including
subpoena of accounting records+ If you do this, watch how *uickly the blood drains
from opposing counselIs face+ ItIs *uite a sight+ A defective instrument is not
enforceable+ An instrument that has been previously discharged and bought as a bad
debt is not enforceable+ !onIt be fooled+ ItIs like buying a cheap knock off 2ole9
watch in =e9ico+ It might look the same, but underneath the face, it is not+ anyone
who disputes a debt to see if you know the law+ 5his is why it is so important for you
to know the law as wellV ?nder the ?niform "ommercial "ode 0ection $6/4., the
name and the signature of both the beneficiary and the original creditor must be
disclosed in the same document M $6/4. (d)+ 5he signature of the borrower must be
included as + well into the assignment or transferF unless a clause in the deed of
trus?mortgage waives that (most deeds of trust disclose this at clause 1/4)+
Under Uniform Commercial Code, a note is a one of a kind negotiable
instrument that has the only legally binding chain of assignment. Oftentimes, your
lender will show up with a photocopy of the note made years ago . . . again,
obscuring the facts in order to steal your house. This is admissible unless you know
how to object. Again, consult with counsel about the Federal ules of !"idence
#$$% and #$$&. Another way banks hide their fraud is to do what's called (blank
assignments,( so that the loan may be assigned many times amongst themsel"es
that are tracked by )!* +which we will e,plain later-, while keeping a blank
assignment of the note handy in the e"ent a foreclosure is needed. This is blatant
abuse of the law. The law is "ery specific here. The promissory note, as well as the
.eed of Trust, must be together at all times and there must always be a clear and
unambiguous chain of title that is traceable in public records for all parties of interest
in real estate.../iolation of Applicable *tate 0aw 1n e"ery .eed of Trust2)ortgage, it
states specifically that the instrument is subject to applicable *tate and Federal
laws. 1f it can be shown that an assignment of the promissory note occurs without
the corresponding assignment at the county recorder's office for the .eed of
Trus/)ortgage, then the instrument has "iolated *tate law. Thus, "iolating the
terms of the .eed of Trust2)ortgage, making the instrument in"alid. *ince interest
in the promissory note has been sold to a !)1C +eal !state )ortgage
1n"estment Conduit- and proper assignment was ne"er done at the county, then the
terms of the .eed of Trus/)ortgage has been "iolated, making it in"alid. This will
con"ert the debt from a secured instrument to an unsecured instrument. This means
the lender might be able to sue you to collect the money, but can ne"er sell your
property to collect on the collateral....1llegal Trustee Argument There ha"e been two
instances in which a Federal Court 3udge issued a statewide injunction free4ing ali
foreclosures against homeowners against 5ank of America and econtrust. One
was in Utah in late %$#$, and more recently, in 3anuary % $ # # in 6e"ada, because
in both instances, econtrust is not registeredto do business in that state. 1f a
company wants to do business in a state, it needs to register within that stateas an
entity. This way, if someone within that state wants to sue them, they can look up
who the owners are, and where they li"e, so they can be properly ser"edwith a
summons.1n almost all instances, these foreclosure mills are not registered to do
businessin the state they are attempting to foreclose in. )any homeowners ha"e
used this defense to at least forestall foreclosure. 1t is not enough to stop a
foreclosure, but it is another claim the homeowner can make in a 7uiet Title Action
defense making the argument that the Trustee is a (non8entity.(+E ?pon information
and belief, @eof @iles, )s*+ got some similar shutdown of 2"0 and or J>0 in
Nevada Gust last year+++
EI0 CA?2 >)N!)2 A2 >AAN 0)2,I")2 !AN@>IN@ 5B) BA=;
;)2=AN)N5 =A!I8I"A5IAN "A22A5 IN 82AN5 A8 CA?2 NA0)? BA=;
52IA> ;>AN 0"B)=) W 0aying they RwillS modify the loan if trial payments are
made proves crucial+ De have talked about this many times before on our website
5rial ;lan 8raud+ 5hat is, -anks and loan servicers promising to modify your loan if
you make your BA=; trial plan payments on time+ De get this scenario over and
ASIDE ORDER GRANTING SUMMARY JUDGMENT //
over+ 5he BA=; modification agreement itself will normally promise the
modification if all payments are made (but the contract is subGect to a bunch of little
trap6holes put in place so the loan servicer can always try to back out of the
modification without having to perform)+ 0ometimes this is also buttressed over the
phone by statements from some Rloss mitigation specialistS or Rforeclosure
specialistS who promises you that you *ualify for the loan modification and if you
Gust make the trial payments Ryou will be goodS or Rwe wonHt foreclose+S 5his is
going on left and right in my honest opinion+ After all, it is a RcleverS way to get
people who may not be making their mortgage payment (potential strategic
defaulters) into making some payments and that is with the false promise of loan mod
assistance+ 0o yes, trying to get a loan modification can often turn into a game of
poker with your lender+ Cou both end up telling each other certain things, some of
which may or may not be true+ 5hatHs what happens when money is on the line,
monthly payments versus the return on investment to investors in mortgage backed
securities+ At any rate, in the case of <ackmon v+ AmericaHs 0ervicing "ompany,
"ase No+ " 64$33. "2-, ("A Northern !istrict /4) the "ourt did not go for this
approach+ 5he fact that the servicer refused to return the signed agreement to the
borrower was not enough to allow the servicer to get out of the hot water+ 5he
borrower made more than the re*uired trial plan payments, and although she faced
eviction following the foreclosure sale, the court issued an inGunction preventing the
eviction from taking place, based on the allegations that the borrower was entitled to,
and promised a final BA=; modification+ 0o, when the 0ervicers are not playing
fair, it may Gust so happen that you have some legal rights+ NA5)# 5he "ourt
re*uired a bond be posted and re*uired K/,7.3 monthly protection payments+
0omething you should always consider before filing a predatory lending lawsuit or
wrongful foreclosure lawsuit seeking a 52A and InGunction+
Among other things, -onnet contended that respondent =)20I conduct was
ASIDE ORDER GRANTING SUMMARY JUDGMENT /$
sanctionable because it failed to produce certain re*uired documents at the
mediation+V 0ee N20 4%+437(.), (')+ 5he record indicates that a non6party, "hase
Bome 8inancing, >>", attended the mediation+ -ecause =)20 maintains that "hase
attended the mediation on its behalf, "haseIs conduct at the mediation is properly
imputed to =)20 for purposes of this appeal+ENDO + e ++ + re,Iew a district courtIs
decision regarding the imposition of sanctions for a partyIs participation in the
8oreclosure =ediation ;rogram under an abuse of discretion standard+ E ;asillas v+
B0-" -ank ?0A, /% Nev+ T, T, /'' ;+ $d /3, /37 (/4)+ =)20 failed to
produce the re*uired documents 5o obtain a foreclosure certificate, a deed of trust
beneficiary must strictly comply with four re*uirements# () attend the mediation, (/)
participate in good faith, ($) bring the re*uired documents, and (.) if attending
through a representative, have a person present with authority to modify the loan or
access to such a person+ N20 4%+437(.), (')F >eyva v+ National !efault 0ervicing
"orp+, /% Nev+ T, T, /'' ;+$d /%', /%& (/4) (concluding that strict compliance
with the ;rogramIs re*uirements is necessary)+ N20 4%+437(.) states that the deed
of trust beneficiary or its representative Eshall bring to the mediation the original or a
certified copy of the deed of trust, the mortgage note and each assignment of the deed
of trust or mortgage note+ E =oreover, the 8oreclosure =ediation 2ules (8=2s)
re*uire the beneficiary or its representative to conduct an appraisal of the
homeownerIs home+ 8=2 ($)(b)+ Bere, the record demonstrates that =)20 failed
to produce the deed of trust and any assignments+ / =oreover, it failed to conduct an
appraisal of -onnetIs home+ -ecause =)20 failed to strictly comply with De
recogniLe that -onnetIs original lender may still own her loan, in which case no
assignments would e9ist+ Bowever, =)20I inability to verify who currently owns
-onnetIs loan necessarily means that =)20 was unable to confirm that no
assignments needed to be produced+the ;rogramIs re*uirements, the district court
abused its discretion in ordering a foreclosure certificate to be issued+ >eyva, /%
Nev+ at T, /'' ;+$d at /%&F ;asillas, /% Nev+ at T, /'' ;+$d at /37+ An remand,
ASIDE ORDER GRANTING SUMMARY JUDGMENT /.
the district court must determine how =)20 should be appropriately sanctioned+
;asillas, /% Nev+ at T, /'' ;+$d at /3763% (construing N20 4%+ 437(') to mean
that a violation of one of the four statutory re*uirements must be sanctioned and that
the district court is to consider several factors in determining what sanctions are
appropriate)+
0)"5IAN .# "AN">?0IAN XY 0ecuritiLation and =)20 re*uired many
changes in established practices+ 5hese practices were not and have not codified, so
they are maGor points of contention today+ Dhen a lender, title company, foreclosure
company or other firm signed up to become a member of =)20, one of more of their
people were designated as ZM"orporate AfficersZ[ of =)20 and given the title of
either Assistant 0ecretary or ,ice ;resident+ 5hese personnel were not employed by
=)20, nor received income from =)20+ 5hey were named ZM"ertified AfficersZ[
solely for the purpose of signing foreclosure and other legal documents in the name
of =)20+ (Apparently, there are some agreements which ZMauthoriLeZ[ these people
to act in an Agency manner for =)20)+ 5his ZMsolvedZ[ the issue of not having
enough personnel to conduct necessary actions+ It would be the 0ervicers, 5rustees
and 5itle "ompanies conducting the day6to6day operations needed for =)20 to
function+ As well, it was thought that this would provide =)20 and their
ZM"orporate AfficersZ[ with the ZMlegal standingZ[ to foreclose+ Bowever, this brought
up another issue that now needed addressing# XY Dhen the Note is transferred, it
must be endorsed and signed, in the manner of a person signing his paycheck over to
another party+ "ustomary procedure was to endorse it as ZM;ay to the Arder ofZ[ and
the name of the party taking the Note and then signed by the endorsing party+ Dith a
new party holding the note, there would now need to be an Assignment of the !eed+
5his could not work if =)20 was to be the foreclosing party+ =)20 has recogniLed
the Note endorsement problem and on their website, stated that they could be the
foreclosing party only if the Note was endorsed in blank+ If it was endorsed to
another party, then that party would be the foreclosing party+ As a result, most Notes
ASIDE ORDER GRANTING SUMMARY JUDGMENT /'
are endorsed in blank, which purportedly allow =)20 to be the foreclosing party+
Bowever, "A "I,I> "A!) /&$/+' has a completely different say in the matter+ It
re*uires that the Assignment of the !eed to the -eneficial Interest Bolder of the note+
"A "I,I> "A!) /&$/+' Z, A00I@N=)N5 Dhere a power to sell real property is
given to a mortgagee, or other encumbrance, in an instrument intended to secure the
payment of money, the power is part of the security and vests in any person who by
assignment becomes entitle to payment of the money secured by the instrument+ 5he
power of sale may be e9ercised by the assignee if the assignment is duly
acknowledged and recorded+ As is readily apparent, the above statute would suggest
that Assignment of the !eed to the Note Bolder is a re*uirement for enforcing
foreclosure+ ;age /$ ;aladin Associates Z, 8orensic =ortgage )9perts XY 5he first
Assignment purports to be e9ecuted by =)20, signed by Dendy ;erry holding the
position of Asst+ 0ecretary+ Dendy ;erry is an employee of "al6Destern
2econveyance "orp, original foreclosing company+ 5he second Assignment purports
to be e9ecuted by !eutsche -ank National 5rust "ompany, signed by 0tarlene >+
0tarling, who is in fact ,ice ;resident and Asst+ 0ecretary of <; =organ "hase -ank+
5he 0ubstitution of 5rustee was purportedly e9ecuted by =)20 signed by Avis 2+
5homas, who is in fact, ,ice ;resident of ;rommis 0olutions+ 5here is a potentially
serious conflict with the same person, as an ZMemployeeZ[ of =)20 Z, with duties
owed to the entity selling a mortgage Z, assigns that mortgage to a bank at
presumably market value, and then the same person, as the bankZ\s employee, swears
an affidavit in the foreclosure case, and the same person is also an employee of the
foreclosing company+ XY It is deemed imperative that the two6hat6wearing signer
provides employment histories for all the companies they represent+ XY 5he debtors,
A?!I5 2)"I;I)N5 were conducted the title owner of the subGect property until
N!)Y D)05, >>" did an invalid non6Gudicial foreclosure proceeding on November
$, /44+ ;rior to the e9ecution of 5rustee+s !eed upon 0ale against the subGect
property, N!)Y D)05, >>" did not maintain a secured interest in the subGect
property+ XY 5he mortgage securing the note, while naming D=" =ortgage "orp+
as ZM>ender,Z[ separately names the =ortgage )lectronic 2egistration 0ystems, Inc
(=)20) as the ZM=ortgagee+Z[ 5he conveyancing language granted the mortgage to
=)20 ZMsolely as nominee for >ender and >ender+s successor+s and assigns+Z[ D="
=ortgage "orp+ was a ZMcorrespondent lenderZ[ that originated mortgage loans which
in turn, was sold and transferred into a ZMfederally6approved securitiLationZ[ trust
named =organ 0tanley "apital I Inc+ 5rust /4476B) XY 5he Note and !eed have
taken two distinctly different paths+ 5he Note was securitiLed into =organ 0tanley
"apital I Inc+ 5rust /4476B)+ XY 5he written agreement that created the =organ
0tanley "apital I Inc+ 5rust /447 B) is a ZM;ooling and 0ervicing AgreementZ[
(;0A), and is a matter of public record, available on the website of the 0ecurities
)9change "ommission+ 5he 5rust is also described in a ZM;rospectus 0upplement,Z[
also available on the 0)" website+ 5he 5rust by its terms set a ZM">A0IN@ !A5)Z[
of 8ebruary /3, /447+ 5he promissory note in this case became trust property in
compliance with the re*uirement set forth in the ;0A+ 5he 5rust agreement is filed
under oath with the 0ecurities and )9change "ommission+ 5he ac*uisition of the
assets of the subGect 5rust and the ;0A are governed under the law+ ;age /. ;aladin
Associates Z, 8orensic =ortgage )9perts In view of the foregoing, all assignments
e9ecuted filed three years after the 5rust+s "losing !ate would be a void act for the
reason that it violated the e9press terms of the 5rust instrument+ XY 5he loan was
originally made D=" =ortgage "orp and was sold and transferred to =organ
0tanley "apital I Inc+ 5rust /447 B)+ 5here is no record of Assignments to either
the 0ponsor or !epositor as re*uired by the ;ooling and 0ervicing Agreement+ In
"arpenter v+ >ongan 7 Dall+ /%,3$ ?+0+ /%, /%., / >+)d+ $$ (3%/), the ?+0+
0upreme "ourt stated ZM5he note and mortgage are inseparableF the former as
essential, the latter as an incident+ An assignment of the note carries the mortgage
with it, while assignment of the latter alone is a nullity+Z[ An obligation can e9ist with
or without security+ Dith no security, the obligation is unsecured but still valid+ A
ASIDE ORDER GRANTING SUMMARY JUDGMENT /%
security interest, however, cannot e9ist without an underlying e9isting obligation+ It
is impossible to define security apart from its relationship to the promise or
obligation it secures+ ("ivil "ode Z]Z] /3%/, /&4&, /&/4F "alifornia =ortgages and
!eeds of 5rust, and 8oreclosure >itigation, by 2oger -ernhardt, 8ourth )dition, Z]
+) 5he obligation and the security are commonly drafted as separate documents Z,
typically a promissory note and a deed of trust+ If the creditor transfers the note but
not the deed of trust, the transferee receives a secured noteF the security follows the
note, legally if not physically+ If the transferee is given the deed of trust without the
note accompanying it, the transferee has no meaningful rights e9cept the possibility
of legal action to compel the transferor to transfer the note as well, if such was the
agreement+ (Qelley v+ ?pshaw &&'/) $& "+/d %&, /.7 ;+/d /$F ;olhemus v+
5rainer (377) $4" 73') ZMDhere the mortgagee has ZMtransferredZ[ only the
mortgage, the transaction is a nullity and his ZMassigneeZ[ having received no interest
in the underlying debt or obligation, has a worthless piece of paper (. 2ichard 2+
;owell), ;owell on 2eal ;roperty, Z] $%+/% N/O (/444) -y statute, assignment of the
mortgage carries with it the assignment of the debt+ + + Indeed, in the event that a
mortgage loan somehow separates interests of the note and the deed of trust, with the
deed of trust lying with some independent entity, the mortgage may become
unenforceable+ 5he practical effect of splitting the deed of trust from the promissory
note is to make it impossible for the holder of the note to foreclose, unless the holder
of the deed of trust is the agent of the holder of the note+ Dithout the agency
relationship, the person holding only the note lacks the power to foreclose in the
event of default+ 5he person holding only the deed of trust will never e9perience
default because only the holder of the note is entitled to payment of the underlying
obligation+ 5he mortgage loan becomes ineffectual when the note holder did not also
hold the deed of trust+Z[ ANC A55)=;5 5A 52AN08)2 5B) -)N)8I"IA>
IN5)2)05 A8 A 52?05 !))! DI5BA?5 ADN)20BI; A8 5B)
?N!)2>CIN@ NA5) I0 ,AI! ?N!)2 "A>I8A2NIA >AD
Now, one might suppose the "arpentiers could always 5he -ankruptcy
Automatic 0tay =ethod 5o buy time, some homeowners declare bankruptcy+ Dhen
you declare bankruptcy, you receive an automatic stay from all creditors, including
the lender+ =any homeowners feel this is the best and most assured way to stop the
sale from happening+ -e warned+ -ankruptcy is not for the weak hearted+ !o not
enter bankruptcy lightly+ Cou will need to declare all your assets, income and
financial details+ It is like having a permanent anal probe of your financial details+ It
is not pleasant+ Never ever lie, especially in bankruptcy court+ Cou will go to Gail+ As
great as the temptation to hide the precious little money you have from your creditors
is, donIt do it+ 5he other down side of bankruptcy is that it is a mark in your public
credit score+ -ut frankly, having a bankruptcy or a foreclosure these days is not as big
a deal as it once was+ Almost half the country has been through it+ ItIs like being a
leper in a leper colony+ ItIs not as big a deal anymore+ 5he fact is, however, for most
homeowners this might be the only way to keep their house from the auction block
while they buy time to build their case for their foreclosure defense+ 5he other thing
about bankruptcy is, that in my e9perience, I have found that most of the wins come
from the bankruptcy courts+ 5he thing about bankruptcy is that it has the nice 2ule
$44(d)+ 8ederal 2ules of -ankruptcy $44 (d) )vidence of perfection of security
interest+ If a security interest in property of the debtor is claimed, the proof of claim
shall be accompanied by evidence that the security interest has been perfected+ It
re*uires the lender to provide proof of claim+ 5his means that the table is suddenly
turned+ It is now the lender who has to come up with the proof of claim+ And if you
know how their fraud is being perpetrated, then you know how to obGect and deflect
their deception+ Dhat many people do after they file for bankruptcy is to file an
adversary proceeding+ As a debtor, this is absolutely free+ An adversary proceeding is
like a normal civil action, but done under bankruptcy court, and under bankruptcy
rules+ It allows the debtor to challenge the bank to provide proof of standing+ 5he
other thing many homeowners do is file their house as an unsecured debt+ ;lease
ASIDE ORDER GRANTING SUMMARY JUDGMENT /&
note, you cannot file an adversary proceeding under "hapter %+ 5his is very important
to remember+ 5his will then prompt the lender to complain+ -ut in doing so, they are
then re*uired to provide proof of claim which they often are unable to do+E or
Emotion to oppose the lifting of the automatic stay in bankruptcy court+ Bere is
another pleading for warrior lawyers# "alifornia 52A InGunction ;ackage W K'&' 6 If
you have clients seeking to stop the foreclosure sale of their home, and you have
valid legal grounds to file a lawsuit, here are the materials you will need to seek to
obtain a 52A (temporary restraining order) and preliminary inGunction+ "omplete
with intel from the foreclosure trenches from Attorney 0teve ,ondran+ 5hese tips,
insights and sample pleadings will save you alot of time if you have never been
through the foreclosure 52A process in "alifornia+ "ertain additional local rules may
apply, but this is a good collection of documents to assist you+ Bere is what you get
in this valuable kit# + . page 52A and InGunction checklist (guide6sheet with tips)
/+ 0ample Notice of 52A to opposing parties $+ 52A / A0" application (with sample
memorandum of points and authorities) .+ !eclarations in 0upport of 52A .+
;roposed Arder for 52A / A0" '+ 2e*uest for <udicial Notice 7+ >is ;endens
5emplate %+ Dithdrawal of >is ;endens 5emplate 3+ 0ample "ivil "omplaint
5emplate
"arpentiers allege and wish to amend their complaint to add this too#
EBomeowner Dins# "ase >aw 0uccesses ;atton v+ !iemer, $' Ahio 0t+ $d 73F '3
N+)+/d &.F &33)+ A Gudgment rendered by a court lacking subGect matter
Gurisdiction is void ab initio+ "onse*uently, the authority to vacate a void Gudgment is
not derived from Ahio 2+ eiv+ ;+ 74(-), but rather constitutes an inherent power
possessed by Ahio courts+ I see no evidence to the contrary that this would apply to
All courts+ EA party lacks standing to invoke the Gurisdiction of a court unless he has,
in an individual or a representative capacity, some real interest in the subGect matter
of the action+ >ebanon "orrectional Institution v+ "ourt of "ommon ;leas $' Ahio
0t+/d %7 (&%$)+ EA party lacks standing to invoke the Gurisdiction of a court unless
ASIDE ORDER GRANTING SUMMARY JUDGMENT $4
he has, in an individual or a representative capacity, some real interest in the subGect
matter of a n action+E Dells 8argo -ank, v+ -yrd, %3 Ahio App+$d /3',
/443++Ahio^.74$, 3&% N+)+/d %// (/443)+ It went on to hold, EIf plaintiff has offered
no evidence that it owned the note and mortgage when the complaint was filed, it
would not be entitled to Gudgment as a matter of law+E (5he following court case was
unpublished and hidden from the public) Dells 8argo, litton loan v+ 8armer, 37%
N+,+0+/d / (/443)+ EDells 8argo does not own the mortgage loan +++ 5herefore,
the +++ matter is dismissed with preGudice+E (5he following court case was unpublished
and hidden from the public) Dells 8argo v+ 2eyes, 37% N+,+0+/d / (/443)+
!ismissed with preGudice, 8raud on "ourt P 0anctions+ Dells 8argo never owned the
=ortgage+ (5he following court case was unpublished and hidden from the public)
!eutsche -ank v+ ;eabody, 377 N+,+0+/d & (/440)+ )*ui8irst, when making the
loan, violated 2egulation ( of the 8ederal 5ruth in >ending Act ' ?0" M74 and
the 8air !ebt "ollections ;ractices Act ' ?0" M7&/F Eintentionally created fraud
in the factumE and withheld from plaintiff+++ Evital information concerning said debt
and all of the matri9 involved in making the loan+E (5he following court case was
unpublished and hidden from the public) Indymac -ank v+ -oyd, 334 N+,+0+/d //.
(/44&)+ 5o establish a prima facie case in an action to foreclose a mortgage, the
plaintiff must establish the e9istence of the mortgage and the mortgage note+ It is the
lawIs policy to allow only an aggrieved person to bring a lawsuit + + + A want of
Estanding to sue,E in other words, is Gust another way of saying that this particular
plaintiff is not involved in a genuine controversy, and a simple syllogism takes us
from there to a EGurisdictionalE dismissal# www+consumerdefenseprograms+com 4.
(5he following court case was unpublished and hidden from the public) Indymac
-ank v+ -ethley, 334 N+C+0+/d 3%$ (/44&)+ 5he "ourt is concerned that there may be
fraud on the part of plaintiff or at least malfeasance ;laintiff IN!C=Ae (!eutsche)
and must have EstandingE to bring this action, (5he following court case was
unpublished and hidden from the public) !eutsche -ank National 5rust "o v+5orres,
NC 0lip Ap '.%? (/44&)+ 5hat Ethe dead cannot be suedE is a well established
principle of the Gurisprudence of this state plaintiffIs second cause of action for
declaratory relief is denied+ 5o be entitled to a default Gudgment, the movant must
establish, among other things, the e9istence of facts which give rise to viable claims
against the defaulting defendants+ E5he doctrine of ultra vires is a most powerful
weapon to keep private corporations within their legitimate spheres and punish them
for violations of their corporate charters, and it probably is not invoked too often +++ E
(inc "arbonate "o+ v+ 8irst National -ank, 4$ Dis+ /', %& ND //& (3&&)+ Also
see# American )9press "o+ v+ "itiLens 0tate -ank, 3 Dis+ %/, &. ND ./%
(&/$)+ (5he following court case was unpublished and hidden from the public)
Dells 8argo v+ 2eyes, 37% N+,+0+/d / (/443)+ "ase dismissed with preGudice, fraud
on the "ourt and 0anctions because Dells 8argo never owned the =ortgage+ (5he
following court case was unpublished and hidden from the public) Dells 8argo, litton
loan v+ 8armer, 37% N+C+0+/d / (/443)+ Dells 8argo does not own the mortgage
loan+ EIndeed, no more than (affidavits) is necessary to make the prima facie case+E
?nited 0tates v+ Qis, 7'3 8+/d, '/7 (%th "ir+ &3)+ (5he following court case was
unpublished and hidden from the public) Indymac -ank v+ -ethley, 334 N+,+0+/d
3%$ (/44&)+ 5he "ourt is concerned that there may be fraud on the part of plaintiff or
at least malfeasance ;laintiff IN!C=A" (!eutsche) and must have EstandingE to
bring this action+ lawyer responsible for false debt collection claim 8air !ebt
"ollection ;ractices Act, ' ?0"0 MM 7&/++7&/4,BeintL v+ <enkins, '. ?+0+ /&F
' 0+ "t+ .3&, $t l+ )d+ /d $&' (&&')+ and 8!";A 5itle ' ?0c+ sub section
7&/+ In determining whether the plaintiffs come before this "ourt with clean hands,
the primary factor to be considered is whether the plaintiffs sought to mislead or
deceive the other party, not whether that party relied upon plaintiffsI
misrepresentations+ 0tachnik v+ Dinkel, $&. =ich+ $%', $3%F /$4 N+D+/d '/&, '$.
www+consumerdefenseprogra ms+com 4' (&%')+ EIndeed, no more than (affidavits)
is necessary to make the prima facie case+E ?nited 0tates v+ Qis, 7'3 8+/d, '/7 (%th
ASIDE ORDER GRANTING SUMMARY JUDGMENT $/
"ir+ &3)+ "ert !enied, '4 ?+0+ loD+ /7&F 0+ "t+ =arch //, (&3/)+ E0ilence can
only be e*uated with fraud where there is a legal or moral duty to speak or when a n
in*uiry left unanswered would be intentionally misleading+E ?+0+ v+ 5weel, '04 8+/d
/&% (&%%)+ EIf any part of the consideration for a promise be illegal, or if there are
several considerations for an un6severable promise one of which is illegal, the
promise, whether written or oral, is wholly void, as it is impossible to say what part
or which one of the considerations induced the promise+E =enominee 2iver "o+ v+
Augustus 0pies l P " "o+, .% Dis+ ''& at p+ '%/F $/ ND 3 (&/)+ 8ederal
2ule of "ivil ;rocedure %(a)(l) which re*uires that EIaOn action must be prosecuted
in the name of the real party in interest+E 0ee also, In re <acobson, .4/ -+2+ $'&,
$7'^77 (-ankr+ D+A+ Dash+ /44&)F In re Bwang, $&7 -+2+ %'%, %7767% (-ankr+ "!+
"al+ /443)+ =ortgage )lectronic 2egistration 0ystems, Inc+ v+ "hong, 3/. N+,+0+/d
%7. (/447)+ =)20 did not have standing as a real party in interest under the 2ules to
file the motion +++ 5he declaration also failed to assert that =)20, 8=" "apital >l"
or Bomecomings 8inancial, ll" held the Note+ >andmark National -ank v+ Qesler,
/3& Qan+ '/3, /7 ;+$d '3 (/44&)+ EQan+ 0tat+ Ann+ M 746/74(b) allows relief from
a Gudgment based on mistake, inadvertence, surprise, or e9cusable neglectF newly
discovered evidence that could not have been timely discovered with due diligenceF
fraud or m isrepresentationF a void GudgmentF a Gudgment that has been satisfied,
released, discharged, or is no longer e*uitableF or any other reason Gustifying relief
from the operation of the Gudgment+ 5he relationship that the registry had to the bank
was more akin to that of a straw man than to a party possessing all the rights given a
buyer+E Also In 0eptember of /443, A "alifornia <udge ruling against =)20
concluded, E5here is no evidence before the court as to who is the present owner of
the Note+ 5he holder of the Note must Goin in the motion+E >a0alle -ank v+ Ahearn,
3%' N+,+0+/d '&' (/44&)+ !ismissed with preGudice+ lack of standing+ Novastar
=ortgage, Inc v+ 0nyder $#4%",.34 (/443)+ ;laintiff has the burden of establishing
its standing+ It has failed to do so+ www+consumerdefenseprograms+com 47 !?
ASIDE ORDER GRANTING SUMMARY JUDGMENT $$
"apital, Inc+ v+ ;arsons, "A0) NA+ 4%6=A6% (/443)+ A genuine issue of material
fact e9isted as to whether or not appellee was the real party in interest as there was no
evidence on the record of a n assignment+ 2eversed for lack of standing+ )verhome
=ortgage "ompany v+ 2owland, No+ 4%A;67' (Ahio /443)+ =ortgagee was not the
real party in interest pursuant to 2ule %(a)+ >ack of standing+ In lambert v+ 8irstar
-ank, 3$ Ark+ App+ /'&, /% 0+D+ $d '/$ (/44$), complying with the 0tatutory
8oreclosure Act does not insulate a financial institution from liability and does not
prevent a party from timely asserting any claims or defenses it may have concerning a
mortgage foreclosure A+"A+ M36046 7(d)_/` and violates honest services 5itle 3
8raud+ Notice to credit reporting agencies of overdue payments/foreclosure on a
fraudulent debt is defamation of character and a whole separate fraud+ A "ourt of
Appeals does not consider assertions of error that are unsupported by convincing
legal authority or argument, unless it is apparent without further research that the
argument is well taken+ 82A?! is a point well takenV lambert 0upra+ No lawful
consideration tendered by Ariginal >ender and/or 0ubse*uent =ortgage and/or
0ervicing "ompany to support the alleged debt+ EA lawful consideration must e9ist
and be tendered to support the NoteE and demand under 5I>A full disclosure of any
such consideration+ Anheuser6-usch -rewing "ompany v+ )mma =ason, .. =inn+
$3,.7 N+D+ ''3 (3&4)+ National -anks and/or subsidiary =ortgage
companies+cannot retain the note, EAmong the assets of the state bank were two
notes, secured by mortgage, which could not be transferred to the new bank as assets
under the National -anking laws+ National -ank Act, 0ect /3 P '7E National -ank
of "ommerce v+ Atkinson, 3 Qan+ App+ $4, '. ;+ 3 (3&3)+ EA bank can lend its
money, but not its credit+E 8irst NatIl -ank of 5allapoosa v+ =onroe, $' @a 7., 7&
0+)+ l/$ (&l)+ It is not necessary for rescission of a contract that the party making
the misrepresentation should have known that it was false, but recovery is allowed
even though misrepresentation is innocently made, because it would be unGust to
allow one who made false representations, even innocently, to retain the
ASIDE ORDER GRANTING SUMMARY JUDGMENT $.
fruits of a bargain induced by such representations+E Dhipp v+ Iverson, .$ Dis+
/d 77, 73 N+D+/d /4 (&7&)+ EA bank is not the holder in due course upon merely
crediting the depositors account+E 0ankers 5rust v+ Nagler, /$ A+!+/d 7.', /'%
N+C+0+/d /&3 (&7')+ EAny conduct capable of being turned into a statement of fact
is representation+ 5here is DND+consumerdefenseprograms+com 4% no distinction
between misrepresentations effected by words and misrepresentations effected by
other acts+E (5he seller or lender) EBe is liable, not upon any idea of benefit to
himself, but because of his wrongful act and the conse*uent inGury to the other party+E
>eonard v+ 0pringer, &% '$/+ 7. N) /&& (&4/)+ EIf any part of the
consideration for a promise be illegal, or if there are several considerations for an un6
severable promise one of which is illegal, the promise, whether written or oral, is
wholly void, as it is impossible to say what part or which one of the considerations
induced the promise+E =enominee 2iver "o+ v+ Augustus 0pies l P " "A+,.% Dis+
''& at p+ '%/F $/ ND 3 (&/)+ E5he contract is void if it is only in part
connected with the illegal transaction and the promise single or entire+E @uardian
Agency v+ @uardian =ut+ 0avings -ank, //% Dis+ ''4, /%& ND %& (&$3)+ =oore v+
=id6;enn "onsumer !iscount "o+, "ivil Action No+ &467.'/ ?+0+ !ist+ l)YI0
4$/. (;a+ &&)+ 5he court held that, under 5I>AIs 2egulation (, / "82 M//7+.
(a), a lender had to e9pressly notify a borrower that he had a choice of insurer+
=arshall v+ 0ecurity 0tate -ank of Bamilton, / -+2+ 3. (III+ &&4) violation of
8ederal 5ruth in lending ' ?0"0 M7$3(a`(&), and 2egulation (+ 5he bank took a
security interest in the vehicle without disclosing the security interest+ 0teinbrecher v+
=id6;enn "onsumer !iscount "o+, 4 -+2+ '' (;a+ &&4)+ =id6;enn violated
5I>A by not including in a finance charge the debtorsI purchase of fire insurance on
their home+ 5he purchase of such insurance was a condition imposed by the
company+ 5he cost of the insurance was added to the amount financed and not to the
finance charge+ Nichols v+ =id6;enn "onsumer !iscount "o+, &3& Dl .773/ (;a+
&3&)+ =id6;enn misinformed Nichols in the Notice of 2ight to "ancel =ortgage+
ASIDE ORDER GRANTING SUMMARY JUDGMENT $'
=c)lvany v+ Bousehold 8inance 2ealty "orp+, &3 3+2+ /$% (;a+ &3&)+ debtor filed
an application to remove the mortgage foreclosure proceedings to the ?nited 0tates
!istrict "ourt pursuant to /3 ?0"0 M.4&+ It is strict liability in the sense that
absolute compliance is re*uired and even technical violations will form the basis for
liability+ lauletta v+ ,alley -uick Inc+, ./ 8+ 0upp+ 4$7 at 4.4 (;a+ &%7)+
<ohnson6Allen v+ lomas and Nettleton "o+, 7% -+2+ &73 (;a+ &37)+ ,iolation of
5ruth6inlending Act re*uirements, ' ?0"0 M7$3(a)(4), re*uired mortgagee to
provide a statement containing a description of any security interest held or to be
retained or ac*uired+ 8ailure to disclose+ www+consumerdefensepro*rams+com 43
"ervantes v+ @eneral )lectric =ortgage "o+, 7% -+2+ 37 (;a+ &37)+ creditor failed
to meet disclosure re*uirements under the 5ruth in >ending Act, ' ?+0+"+0+ M 746
77%c and 2egulation ( of the 8ederal 2eserve -oard, / "82 M//7+ =c"ausland
v+ @=A" =ortgage "o+, 7$ -+2+ 77', (;a+ &37)+ @=A" failed to provide
information which must be disclosed as defined in the 5I>A and 2egulation (, /
"82 M//7+ ;erry v+ 8ederal National =ortgage "orp+, '& -+2+ &.% (;a+ &37) the
disclosure statement was deficient under the 5ruth In >ending Act, ' ?+0+"+0+ M
7$3(a)(&)+ !efendant =ortgage "o+ failed to reveal clearly what security interest
was retained+ 0chultL v+ "entral =ortgage "o+, '3 -+2+ &.' (;a+ &37)+ 5he court
determined creditor mortgagor violated the 5ruth In lending Act, ' ?+0+"+0+ M
7$3(a)($), by its failure to include the cost of mortgage insurance in calculating the
finance charge+ 5he court found creditor failed to meet any of the conditions for
e9cluding such costs and was liable for twice the amount of the true finance charge+
0olis v+ 8idelity "onsumer !iscount "o+, '3 -+2+ &3$ (;a+ &37)+ Any misgivings
creditors may have about the technical nature of the re*uirements should be
addressed to "ongress or the 8ederal 2eserve -oard, not the courts+ !isclosure
re*uirements for credit sales are governed by ' ?+s+"+0+ M 7$3 / "82 M //7+3_b),
(c)+ !isclosure re*uirements for consumer loans are governed by ' ?+s+"+0+ M 7$&
/ "82 M //7+3_b), (d)+ A violator of the disclosure re*uirements is held to a
standard of strict liability+ 5herefore, a plaintiff need not show that the creditor in fact
deceived him by making substandard disclosures+ 0ince 5ransworld 0ystems Inc+
have not cancelled the security interest and return all monies paid by =s+ 0herrie I+
>a8orce within the /4 days of receipt of the letter of rescission of Actober %, /44&,
the lenders named above are responsible for actual and statutory damages pursuant to
' ?+s+c+ 7.4(a)+ ;orter v+ =id6;enn "onsumer !iscount "o+, &7 8+/d 477 ($rd
eir+ &&/)+ ;orter filed an adversary proceeding against appellant under ' ?+0+c+
M7$', for failure to honor her re*uest to rescind a loan secured by a mortgage on her
home+ 2owland v+ =agna =illikin -ank of !ecatur, N+A+, 3/ 8+0upp+ 3%' (&&/)
)ven technical violations will form the basis for liability+ 5he mortgagors had a right
to rescind the contract in accordance with ' ? +s+c+ M7$'(c)+ New =aine Nat+ -ank
v+ @endron, %34 8+0upp+ '/ (l&&/)+ 5he court held that defendants were entitled to
rescind loan under strict liability terms of 5I>A because plaintiff violated 5I>AIs
provisions+ !i9on v+ 0 P 0 loan 0ervice of Daycross, Inc+, %'. 8 +0upp+ '7%
(&&4)F 5I>A is a remedial statute, and, hence+ is liberally construed in favor of
borrowers+ 5he remedial obGectives of 5I>A are achieved by imposing a system of
strict liability in favor of consumers when www+consumerdefenseprograms+com 4&
mandated disclosures have not been made+ 5hus, liability will flow from even minute
deviations from the re*uirements of the statute and the regulations promulgated
under it+ Doolfolk v+ ,an 2u "redit "orp+, %3$ 8+0upp+ %/. (l&&4) 5here was no
dispute as to the material facts that established that the debt collector violated the
8A";A+ 5he court granted the debtorsI motion for summary Gudgment and held that
() under ' ?+s+c+ M7&/(e), a debt collector could not use any false, deceptive, or
misleading representation or means in connection with the collection of any debtF
?nfair !ebt "ollection ;ractices Act+ <enkins v+ >andmark =ortg+ "orp+ of ,irginia,
7&7 8+0upp+ 43& (D+!+ ,a+ &33)+ ;laintiff was also misinformed regarding the
effects of a rescission+ 5he pertinent regulation states that Ewhen a consumer rescinds
a transaction, the security interest giving rise to the right of rescission becomes void
ASIDE ORDER GRANTING SUMMARY JUDGMENT $%
and the consumer shall not be liable for any amount, including any finance charge+E
/ "82 M//7+/$(d) ()+ >aubach v+ 8idelity "onsumer !iscount "o+, 737 8+'upp+
'4. ()+!+ ;a+ &33)+ monetary damages for the plaintiffs pursuant to the 2acketeer
Influenced and "orrupt ArganiLation Act, 3 ?0" M&7+ ("ount I)F the 5ruth6in6
lending Act, ' ?0" M74+ 0earles v+ "larion =ortg+ "o+, &3% D> 7&$/ ()+!+
;a+ &3%)F liability will flow from even minute deviations from re*uirements of the
statute and 2egulation (+ failure to accurately disclose the property in which a
security interest was taken in connection with a consumer credit transaction involving
the purchase of residential real estate in violation of ' ?0"s M7$3(a)(&)+ and /
"82 M//7+3(m)+ !i9on v+ ' P ' loan 0ervice of Daycross, Inc+, %'. 8+0upp+ '7%,
'%4 (0+!+ @a+ &&4)+ "ongressIs purpose in passing the 5ruth in >ending Act
(5I>A), ' ?0"s M74(a)+ was to assure a meaningful disclosure of credit terms so
that the consumer will be able to compare more readily the various credit terms
available to him+ ' ?0"s M74(a)+ 5I>A is a remedial statute, and, hence, is
liberally construed in favor of borrowers+F "ervantes v+ @eneral )lectric =ortgage
"o+, 7% -+2+ 37 ()+!+ ;a+ &37)+ 5he court found that the 5I>A violations were
governed by a strict liability standard, and defendantIs failure to reveal in the
disclosure statement the e9act nature of the security interest violated the 5I>A+ ;erry
v+ 8ederal National =ortgage, '& -+2+ &.% ()+!+ ;a+ &37)+ !efendant failed to
accurately disclose the security interest taken to secure the loan+ ;orter v+ =id6;enn
"onsumer !iscount "o+, &7 8 +/d 477 ($rd "ir+ &&/)+ Adversary proceeding
against appellant under ' ?0c+ M7$', for failure to honor her re*uest to
DIo/,II+consumerdefenseprograms+com 4 rescind a loan secured by a mortgage
on her home+ 0he was entitled to the e*uitable relief of rescission and the statutory
remedies under ' ?0c+ M7.4 for appellantIs failure to rescind upon re*uest+ 0olis v+
8idelity "onsumer !iscount "o+, '3 -+2+ &3$ (;a+ &37)+ Any misgivings creditors
may have about the technical nature of the re*uirements should be addressed to
"ongress or the 8ederal 2eserve -oard, not the courts+ !isclosure re*uirements for
credit sales are governed by ' ?+0+"+0+ M 7$3 / "82 M //7+3(b), (c)+ !isclosure
re*uirements for consumer loans are governed by ' ?+0+"+0+ M 7$& / "82 M
//7+3(b), (d)+ A violator of the disclosure re*uirements is held to a standard of strict
liability+ 5herefore, a plaintiff need not show that the creditor in fact deceived him by
making substandard disclosures+ 2owland v+ =agna =illikin -ank of !ecatur, N+A+,
3/ 8+0upp+ 3%' (&&/), )ven technical violations will form the basis for liability+
5he mortgagors had a right to rescind the contract in accordance with ' ?+0+c+
M7$'(c)+ New =aine Nat+ -ank v+ @endron, %34 8+0upp+ '/ (!+ =e+ &&/)+ 5he
court held that defendants were entitled to rescind loan under strict liability terms
of 5I>A because plaintiff violated 5I>AIs provisions+ @oogle# E5he -oyko
!ecisionE E2ickie Dalker "aseE+++"82 5itle /# -anks and -anking ;A25 //76
52?5B IN >)N!IN@ (2 )@?>A5IAN () M//7+$& =ortgage transfer disclosures+
>ink to an amendment pu blished at %' 82 '3'4, 0ept + /., /44+ (a) 0cope+ 5he
disclosure re*uirements of this section apply to any covered person e9cept as
otherwise provided in this section+ 8or purposes of this section# () A Ecovered
personE means any person, as defined in M//7+/(a)(//), that becomes the owner of an
e9isting mortgage loan by ac*uiring legal title to the debt obligation, whether through
a purchase, assignment, or other transfer, and who ac*uires more than one mortgage
loan in any twelve6month period+ 8or purposes of this section, a servicer of a
mortgage loan shall not be treated as the owner of the obligation if the servicer holds
title to the loan or it is assigned to the servicer solely for the administrative
convenience of the servicer in servicing the obligation+ (/) A Emortgage loanE means
any consumer credit transaction that is secured by the principal dwelling of a
consumer+ (b) !isclosure re*uired+ )9cept as provided in paragraph (c) of this
section, any person that becomes a covered person as defined in this section shall
mail or deliver the disclosures re*uired by this section to the consumer on or before
the $4th calendar day following the ac*uisition date+ If there is more than one
covered person, only one disclosure shall be given and the covered persons shall
ASIDE ORDER GRANTING SUMMARY JUDGMENT $&
agree among themselves which covered person shall comply with the re*uirements
that this section imposes on any or all of them+ () Ac*uisition date+ 8or purposes of
this sect ion, the date that the covered person ac*uired the mortgage loan shall be the
date of ac*uisition recog niLed in the books and records of the ac*uiring party+ (/)
=ultiple consumers+ If there is more than one consumer liable on the obligation, a
covered person may mail or deliver the disclosures to any consumer who is primarily
liable+ (c) )9ceptions+ Notwithsta nding paragraph (b) of this section, a covered
person is not subGect to the re*uirements of this section with respect to a particular
mortgage loan if# () 5he covered person sells or otherwise transfers or assigns legal
title to the mortgage loan on or before the $4th calendar day following the date that
the covered person ac*uired the mortgage loanF or (/) 5he mortgage loan is
transferred to the covered person in connection with a repurchase agreement and the
transferor that is obligated to repurchase the loan continues to recog niLe the loan as
an asset on its own books and records+ Bowever+ if the transferor does not repurchase
the mortgage loan, the ac*uiring party must make the disclosures re*uired by M//7+$&
within $4 days after the date that the transaction is recogniLed as an ac*uisition in its
books and records+ (d) "ontent of re*uired disclosures+ 5he disclosures re*uired by
this section shall identify the loan that was ac*uired or transferred and state the
following# ( ) 5he identity, address, and telephone number of the covered person
who owns the mortgage loan+ If there is more than one covered person, the
information re*uired by this paragraph shall be provided for each of them+ (/) 5he
ac*uisition date recogniLed by the covered person+ ($) Bow to reach an agent or party
having authority to act on behalf of the covered person (or persons), which shall
identify a person (or persons) authoriLed to receive legal notices on behalf of the
covered person and resolve issues concerning the consumerIs payments on the loan+
Bowever, no information is re*uired to be provided under this paragraph if the
consumer can use the information provided under paragraph (d)() of this section for
these purposes+ If multiple persons are identified under this paragraph, the disclosure
ASIDE ORDER GRANTING SUMMARY JUDGMENT .4
shall provide contact information for each and indicate the e9tent to which the
authority of each agent differs+ 8or purposes of this paragraph (d)($), it is sufficient if
the covered person provides only a telephone number provided that the consumer can
use the telephone number to obtain the address for the agent or other person
identified+ (.) 5he location where transfer of ownership of the debt to the covered
person is recorded+ Bowever, if the transfer of ownership has not been recorded in
public records at the time the disclosure is provided, the covered person complies
with this paragraph by stating this fact+ (e) Aptional disclosures+ In addition to the
information re*uired to be disclosed under paragraph (d) of this section, a covered
person may, at its option, provide any other information regarding the transaction+E
8erguson v+ Avelo =ortgage, >>" ("al+App+ / !ist+ <un+ , /4), "al+2ptr+$d
/4, D> /$&.$, 5his case involves another challenge to a non6Gudicial
foreclosure sale in "alifornia+ 5he basic facts of this case are that a borrower initially
took out a loan with New "entury =ortgage which loan was accompanied by a
=)20 deed of 5rust (=)20 was the nominee of the lender and its successors and
assigns under the deed of trust and also listed as the beneficiary)+ 5he 5rustee under
the !eed of 5rust was 8irst American 5itle "ompamy+ After a default of the
K744,444 purchase loan taken out by borrower BC?NB in /447, the following
se*uence of recorded documents occurred# () 3/$/4% a Notice of !efault was
recorded by Juality >oan 0ervice "orporation (J>0") W Note that the trustee under
the !eed of 5rust was 8irst American 5itleF (/) 3/$4/4% Assignment of !eed of 5rust
was recorded (=)20 assigned its beneficial interest to Avelo =ortgage) W Note the
typical assignment of the !eed of 5rust together with Rnotes thereinS (5he 8ontenot
case sees this as proper even though =)20 does not, and has never held any note in
its possession)+ ($) /&/4% Notice of 0ale by J>0"+ (.) /&/4% (same day but
after the Notice of 0ale was recorded) 0ubstitution of 5rustee was recorded
substituting J>0" for 8irst American 5itle (note, apparently this document was
e9ecuted on 3///4% prior to the notice of default being recorded by J>0")F
5hereafter, the property was sold at non6Gudicial foreclosure trustee sale on %/43+ 5he
purchaser at the foreclosure sale was Avelo =ortgage, allegedly paying .44k for the
property+ Avelo recorded the 5rustees !eed upon sale+ After the sale, BC?NB (the
original borrower), Juitclaimed his interest to 8erguson (the ;laintiff in this action)
on 7//%/4&+ 8erguson recorded his Juitclaim deed on %//4& and brought suit to
Juiet 5itle against Avelo =ortgage arguing the foreclosure sale was illegal as Avelo
received no valid interest from =)20 in the Assignment of !eed of 5rust since
=)20 had no note to assign, and thus Avelo had no authority to foreclose+ ?nder
this theory, 8erguson argued there was no re*uirement to tender the full amount of
the loan balance to try to set aside the foreclosure sale and claim the property as his
own since he was challenging the foreclosure RsaleS and not the foreclosure
RprocedureS+ In addition, 8erguson argued there can be no tender rule re*uirement
where Avelo is not the true beneficiary (since they never got the note+ 8erguson also
sued BC?NB for fraud+ 5he "ourt disagreed with the ;laintiff 8erguson, and held
that the tender rule applies whether or not Avelo had any note+ Bere is the relevant
language of the case# ($) 5he power of sale in a deed of trust allows a beneficiary
recourse to the security without the necessity of a Gudicial action+ (0ee =elendreL
v+ + + + Investment, Inc+ (/44') /% "al+App+.th /$3, /.& N/7 "al+2ptr+$d .$O+)
Absent any evidence to the contrary, a nonGudicial foreclosure sale is presumed to
have been conducted regularly and fairly+ ("iv+ "ode, M /&/.+) Bowever,
irregularities in a nonGudicial trusteeHs sale may be grounds for setting it aside if they
are preGudicial to the party challenging the sale+ (0ee >o v+ <ensen (/44) 33
"al+App+.th 4&$, 4&%64&3 N47 "al+2ptr+/d ..$OF see also Angell v+ 0uperior
"ourt (&&&) %$ "al+App+.th 7&, %44 N37 "al+2ptr+/d 7'%O NEaIn order to challenge
the sale successfully there must be evidence of a failure to comply with the
procedural re*uirements for the foreclosure sale that caused preGudice to the person
attacking the sale+IEO+) 0etting aside a nonGudicial foreclosure sale is an e*uitable
remedy+ (>o v+ <ensen, supra, 33 "al+App+.th at p+ 4&3 NEA debtor may apply to a
ASIDE ORDER GRANTING SUMMARY JUDGMENT ./
court of e*uity to set aside a trust deed foreclosure on allegations of unfairness or
irregularity that, coupled with the inade*uacy of price obtained at the sale, mean that
it is appropriate to invalidate the sale+EO+) A court will not grant e*uitable relief to a
plaintiff unless the plaintiff does e*uity+ (0ee Arnolds =anagement "orp+ v+ )ischen
(&3.) '3 "al+App+$d '%', '%36'%& N/4' "al+2ptr+ 'OF see also $ Ditkin,
0ummary of "al+ >aw (4th ed+ /44') )*uity, M 7, pp+ /376/3%+) 5hus, RNiOt is settled
that an action to set aside a trusteeHs sale for irregularities in sale notice or procedure
should be accompanied by an offer to pay the full amount of the debt for which the
property was security+S (Arnolds =anagement "orp+ v+ )ischen, supra, '3
"al+App+$d at p+ '%3F see also 8;"I 2)6BA- 4 v+ ) P @ Investments, >td+ (&3&)
/4% "al+App+$d 43, 4// N/'' "al+2ptr+ '%O Nrationale behind tender rule is that
irregularities in foreclosure sale do not damage plaintiff where plaintiff could not
redeem property had sale procedures been properO+) Bowever, a tender may not be
re*uired where it would be ine*uitable to do so+ (0ee Anofrio v+ 2ice (&&%) ''
"al+App+.th .$, ./. N7. "al+2ptr+/d %.OF see also !imock v+ )merald ;roperties
(/444) 3 "al+App+.th 373, 3%763%3 N&% "al+2ptr+/d /''O Nwhen new trustee has
been substituted, subse*uent sale by former trustee is void, not merely voidable, and
no tender needed to set aside saleO+) 0pecifically, Raif the NplaintiffIsO action attacks
the validity of the underlying debt, a tender is not re*uired since it would constitute
an affirmative of the debt+HS (Anofrio v+ 2ice, supra, '' "al+App+.th at p+ ./.+)
Appellants contend they are not challenging irregularities in the foreclosure
proceeding+ 2ather, they argue that respondent is not the holder of the underlying
promissory note and therefore cannot invoke the tender rule against them+ In their
complaint, appellants alleged that New "entury remains in possession of the
promissory note and that appellants owe no obligation to respondent+ An appeal,
appellants contend that whether respondent holds the promissory note is a factual
dispute, and sustaining respondentHs demurrer presupposes that respondent has
authority to enforce the loan obligation+ 5hey assert that while =)20 had the
ASIDE ORDER GRANTING SUMMARY JUDGMENT .$
authority to transfer its beneficial interest under the deed of trust, there is no evidence
that =)20, which was acting as a nominee of New "entury, held the promissory
note and was authoriLed to assign the note itself to respondent+ 5he role of =)20 is
central to the issues in this appeal+ Ra=)20 is a private corporation that administers
the =)20 0ystem, a national electronic registry that tracks the transfer of ownership
interests and servicing rights in mortgage loans+ 5hrough the =)20 0ystem, =)20
becomes the mortgagee of record for participating members through assignment of
the membersH interests to =)20+ =)20 is listed as the grantee in the official records
maintained at county register of deeds offices+ 5he lenders retain the promissory
notes, as well as the servicing rights to the mortgages+ 5he lenders can then sell these
interests to investors without having to record the transaction in the public record+
=)20 is compensated for its services through fees charged to participating =)20
members+HS (@omes v+ "ountrywide Bome >oans, Inc+ (/4) &/ "al+App+.th .&,
' N/ "al+2ptr+$d 3&O (@omes v+ "ountrywide), *uoting =ortgage )lectronic
2egistration 0ystems, Inc+ v+ Nebraska !ept+ of -anking P 8inance (/44') /%4 Neb+
'/& N%4. N+D+/d %3., %3'O+) (.) Appellants cite two federal cases for the proposition
that =)20, as the nominee of the lender under a deed of trust, does not possess the
underlying promissory note and cannot assign it, absent evidence of an e9plicit
authoriLation from the original lender+ (0ee 0a9on =ortgage 0ervices, Inc+ v+ Billery
(N+!+"al+, !ec+ &, /443, No+ "6436.$'%) /443 ?+0+!ist+ >e9is 444'7F see also In re
Agard (-ankr+ )+!+N+C+ /4) ... -+2+ /$+) Not all courts agree on this issue and
appellants do not distinguish nor address other cases that have upheld =)20Hs ability
to assign a mortgage+ (0ee ?0 -ank, N+A+ v+ 8lynn(N+C+0up+ /44) /% =isc+$d 34/
N3&% N+C+0+/d 3'', 3'&O Nassignee of =)20 has standing to initiate foreclosure
proceeding because where Ean entity such as =)20 is identified in the mortgage
indenture as the nominee of the lender and as the mortgagee of record and the
mortgage indenture confers upon such nominee all of the powers of such lender, its
successors and assigns, a written assignment of the note and mortgage by =)20, in
ASIDE ORDER GRANTING SUMMARY JUDGMENT ..
its capacity as nominee, confers good title to the assignee and is not defective for lack
of an ownership interest in the note at the time of the assignmentEOF see also "rum v+
>a0alle -ank, N+A+ (Ala+"iv+App+ /44&) '' 0o+$d /77, /7&+) De are not bound by
federal district and bankruptcy court decisions, and the cases cited by appellants are
in direct conflict with persuasive "alifornia case law+ In @omes v+ "ountrywide,
supra, &/ "al+App+.th .&, plaintiff @omes obtained a loan from Q- Bome
=ortgage "ompany (Q- Bome) to finance a real estate purchase+ Be e9ecuted a
promissory note secured by a deed of trust naming Q- Bome as the lender and
=)20 as Q- BomeHs nominee and beneficiary under the deed of trust+ (@omes v+
"ountrywide, supra, &/ "al+App+.th at p+ '+) 5he deed of trust contained a
provision granting =)20 the power to foreclose and sell the property in the event of
a default+ (Ibid+) @omes defaulted on his payments and was mailed a notice of default
by 2econ5rust, which identified itself as an agent for =)20+ Attached was a
declaration signed by "ountrywide Bome >oans, acting as the loan servicer+ (Ibid+)
@omes filed suit against "ountrywide Bome >oans, 2econ5rust and =)20 for
wrongful initiation of foreclosure, alleging =)20 did not have authority to initiate
the foreclosure because it did not possess the note and was not authoriLed by its
current owner to proceed with foreclosure+ (Id+ at p+ '/+) !efendants demurred,
arguing, among other things, that @omes was re*uired to plead tender
to maintain a cause of action for wrongful foreclosure and that the terms of the
deed of trust authoriLed =)20 to initiate a foreclosure proceeding+ 5he trial court
sustained the demurrer without leave to amend+ (Ibid+) An appeal, the court affirmed
the order, finding that @omes could not seek Gudicial intervention in a nonGudicial
foreclosure before the foreclosure has been completed+ (@omes v+ "ountrywide,
supra, &/ "al+App+.th at p+ '.+) Nonetheless, the appellate court reached the
merits of @omesHs claim as an independent ground for affirming the order sustaining
the demurrer+ 5he court reGected @omesHs argument that =)20 lacked authority to
initiate the foreclosure procedure because the deed of trust e9plicitly provided =)20
ASIDE ORDER GRANTING SUMMARY JUDGMENT .'
with the authority to do so+ 5he court found that the Rdeed of trust contains no
suggestion that the lender or its successors and assigns must provide @omes with
assurances that =)20 is authoriLed to proceed with a foreclosure at the time it is
initiated+S (Id+ at p+ '%+) 5hus, @omes acknowledged =)20Hs authority to
foreclose by entering into the deed of trust+ (Ibid+) <ust as in @omes v+ "ountrywide,
the deed of trust in this case specifically states# R-orrower understands and agrees
that =)20 holds only legal title to the interests granted by -orrower in this 0ecurity
Instrument, but, if necessary to comply with law or custom, =)20 (as nominee for
>ender and >enderHs successors and assigns) has the right# to e9ercise any or all of
those interests, including, but not limited to, the right to foreclose and sell the
;ropertyF and to take any action re*uired of >ender including, but not limited to,
releasing and canceling this 0ecurity Instrument+S (') Appellants concede that =)20
had the authority to assign its beneficial interest to respondent+Accordingly,
respondent had the same authority to initiate foreclosure proceedings+ And while
@omes v+ "ountrywide did not address the tender issue, it does not follow that a
beneficiary may initiate nonGudicial foreclosure proceedings under a deed of trust
without the original promissory note, but cannot seek tender from a defaulting
borrower attempting to set aside the foreclosure+ Although "alifornia courts have not
resolved this issue (see =iller P 0tarr, "al+ 2eal )state ($d ed+ /446/4 0upp+)
!eeds of 5rust and =ortgages, M 4#$&#4, p+ .), several federal district courts in this
state have upheld a beneficiaryHs authority to initiate foreclosure proceedings and
invoke the tender rule against a defaulting borrower, even when the beneficiary is not
the holder of the original promissory note+ 5hose courts have noted that R"alifornia
law adoes not re*uire possession of the note as a precondition to NnonGudicialO
foreclosure under a !eed of 5rust+HS (<ensen v+ Juality >oan 0ervice "orp+ ()+!+"al+
/44) %4/ 8+0upp+/d 3$, 3&F see also Adinma v+ Aurora >oan 0ervices
(N+!+"al+, =ar+ /$, /44, No+ "64&6.7%. )!>) /44 ?+0+ !ist+ >e9is /3$.%F see
also =orgera v+ "ountrywide Bome >oans, Inc+()+!+"al+, <an+ , /44, No+ /#4&6
cv64.%76=")6@@B) /44 ?+0+!ist+ >e9is /4$%, p+ b/ N=)20, as nominee of
lender, has authority to initiate nonGudicial foreclosure without underlying promissory
noteO+) =oreover, in cases involving an assignment of a deed of trust from =)20 to
a third party, courts have invoked the tender rule despite arguments that =)20 did
not have the authority to assign its interest under the deed of trust without the
promissory note+ (0ee >ai v+ Juality >oan 0ervice "orp+("+!+ "al+, Aug+ /7, /44,
No+ ", 46/$43 ;0@ (;>A9)) /44 ?+0+ !ist+ >e9is &%/+) Appellants offer no
authority, state or federal, to support the legal loophole they claim for defaulting
borrowers and their successors+ Appellants also argue that respondent was not
authoriLed to substitute Juality as the trustee prior to becoming the beneficiary under
the deed of trust+ Juality initiated the foreclosure proceedings when it was not the
trustee and therefore had no legal right to do so+ ?nder a deed of trust, the trustee
may be substituted by a Rsubstitution e9ecuted and acknowledged by# (A) all of the
beneficiaries under the trust deed, or their successors in interest+ + +F or (-) the holders
of more than '4 percent of the record beneficial interest of a series of notes secured
by the same real property or of undivided interests in a note secured by real property
e*uivalent to a series transaction, e9clusive of any notes or interests of a licensed real
estate broker that is the issuer or servicer of the notes or interests or of any affiliate of
that licensed real estate broker+S ("iv+ "ode, M /&$.a, subd+ (a)()+) (7) De agree
with appellants that respondent did not have the authority to e9ecute a substitution of
trustee until =)20 assigned the deed of trust to it+ 5hus, JualityHs August $, /44%
notice of default was defective+ Nonetheless, Buynh had more than three months to
satisfy his obligation before Juality e9ecuted a notice of sale+ 5he substitution of
trustee was effective when respondent became the beneficiary under the deed of trust
and when the substitution was recorded on November &, /44%+ ("iv+ "ode, M /&$.a,
subd+ (a)(.) NE8rom the time the substitution is filed for record, the new trustee shall
succeed to all the powers, duties, authority, and title granted and delegated to the
trustee named in the deed of trust+EO+) 5hus, the notice of sale was valid+Juality then
ASIDE ORDER GRANTING SUMMARY JUDGMENT .%
completed the foreclosure in <uly /443, long after its substitution as trustee took
effect+ 5his situation is distinct from other cases that have voided a nonGudicial
foreclosure sale when a party other than the trustee initiated the proceeding and
completed the sale without having been substituted in as the trustee+ (0ee ;ro ,alue
;roperties, Inc+ v+ Juality >oan 0ervice "orp+ (/44&) %4 "al+App+.th '%&, '3$ N33
"al+2ptr+$d $3OF see also !imock v+ )merald ;roperties, supra, 3 "al+App+.th at
pp+ 3%763%3 Nforeclosure sale void where original trustee completed foreclosure sale
after being replaced by new trusteeO+) Appellants offer no authority for the
proposition that the defective nature of the initial notice of default corrupted all
subse*uent steps in the nonGudicial foreclosure proceeding such that the sale was
void, not merely voidable+ 5hus, this ruling seems to leave open a tiny door for
situations where the wrong trustee sells the property at foreclosure sale+ In those
situations, the sale may be ,AI! with no obligation to tender+ 0o, looking for
grounds to challenge the 0ubstitution of 5rustee may be one of the few remaining
challenges in "alifornia to either enGoin or set aside a wrongful foreclosure sale
despite courts recogniLing the the foreclosure procedure must be valid+ 5he "ourt
cited 5ender statute in "alifornia# (3) A tender is an offer of performance made with
the intent to e9tinguish the obligation+ ("iv+ "ode, M .3'+) It must be unconditional
("iv+ "ode, M .&.) and offer full performance to be valid ("iv+ "ode, M .37)+ "ivil
"ode section '/ provides# RIf the performance of an obligation be prevented by the
creditor, the debtor is entitled to all the benefits which he would have obtained if it
had been performed by both parties+S NA5)# I do not believe the Rtender ruleS is a
hard and fast rule+ Cou have to look at what your facts are+ 0ome cases have held that
a tender may not be re*uired where it would be ine*uitable to do so+ (0ee Anofrio v+
2ice (&&%) '' "al+App+.th .$, ./.F see also !imock v+ )merald ;roperties (which
was actually cited by the 8erguson court) (/444) 3 "al+App+.th 373, 3%763%3
Nwhich held that there was no re*uirement to tender when the wrong trustee sells the
property, in these instances, the sale is ,AI!, not merely ,AI!A->), and no tender
was needed to challenge the ,AI! saleO+) 5here are other cases that talk about ,AI!
vs+ ,AI!A->)+ Bowever, you need to be aware of the rule, and there will be tender
challenges raised in almost every case of wrongful foreclosure so there has to be a
strategy, and cases to deal with that+ Also, where the ;laintiffHs lawsuit challenges the
validity of an alleged underlying debt, tender is not re*uired since it would constitute
an affirmation of the debt+S 0ee Anofrio v+ 2ice, supra, '' "al+App+.th at p+ ./.+
NA5)/# 5his case also discussed the re*uirements of a Juiet 5itle lawsuit in
"alifornia# (/) Bere, appellants sought to *uiet title against respondents and set aside
the trustee sale at which respondents purchased the property+ In order to state a viable
cause of action for *uiet title, a complaint must include# R(a) A description of the
property that is the subGect of the action+ + + + NcO (b) 5he title of the plaintiff as to
which a determination under this chapter is sought and the basis of the title+ + + + NcO
(c) 5he adverse claims to the title of the plaintiff against which a determination is
sought+ NcO (d) 5he date as of which the determination is sought+ + + + NcO (e) A prayer
for the determination of the title of the plaintiff against the adverse claims+S ("ode
"iv+ ;roc+, M %7+4/4+) 5o bring an action to *uiet title a plaintiff must allege he or
she has paid any debt owed on the property+ 0himpones v+ 0tickney (&$.) /& "al+
7$%, 7.& NENAO mortgagor cannot *uiet his title against the mortgagee without paying
the debt secured+SO+) 5he complaint must also be verified (sworn under oath)+
ASIDE ORDER GRANTING SUMMARY JUDGMENT .&
DECLARATION OF JAMES S CARPENTIER AND JOAN E: CARPENTIER:
IN SUPPORT OF MOTION TO SET ASIDE ORDER (nd REPLY TO
OPPOSITION TO MOTION TO SET ASIDE ORDER
+ 5his !eclaration is made pursuant to the provisions of N20 '$+4.', we are presently
in the 0tate of Nevada and I declare under penalty of perGury that the foregoing is true
and correct+
/+ !eclarants are the ;laintiffs in ",4364%4&+
$+ !eclarants aver that the factual statements set for above in this 2eply to Apposition
to ;laintiffIs =otion to 0et Aside and in the earlier filed ;laintiffIs =otion to 0et Aside
are are accurate+
.+ I, <A=)0 0 "A2;)N5I)2 and I, <AAN )+ "A2;)N5I)2 are available to testify, if
necessary, as to these matters+ I declare under penalty of perGury that the foregoing is
true and correct+
)9ecuted on <anuary , /4
T/s/ <ames 0+ "arpentierTTTTTTTTTTTTTTTTTTTTTT
<A=)0 0 "A2;)N5I)2
;>AIN5I88
/s/ <oan )+ "arpentierTTTTTTTTTTTTTTTTTTTTTTTT
<AAN ) "A2;)N5I)2
;>AIN5I88
ASIDE ORDER GRANTING SUMMARY JUDGMENT '4
A88I2=A5IAN ;ursuant to N20 /$&-+4$4
!A5)! this <anuary , /4/#
/s/ (ach "oughlin
(ach "oughlin, )s*+
Attorney for ;laintiffs <oni and <ames "arpentier
PROOF OF SERVICE
I, (ach "oughlin, declare, that on <anuary , /4/, I caused the forgoing to be
deliver to all named !efendantIs in this action, by electronic filing to#
Qristin A+ 0chuler6BintL, )s*+
"hristoper Bunter, )s*+
=c"arthy P Bolthus, >>;
&'4 D+ 0ahara Ave+, 0uite 4
>as ,egas , N, 3&%
;hone# %4/673'64$/&
8a9# 3776$$&6'7&
khintL:mccarthyholthus+com
Atty for !)85I0 2)0I!)N5IA> "2)!I5 0A>?5IAN0 IN", AN! J?A>I5C
>AAN 0)2,I") "A2;A2A5IANI0
And via delivering to their attorneyIs of record by efiling (if he is an efiler), fa9,
email and depositing a true and correct copy of this document in the ?0 mail on this
date addressed to#
)ric -+ (imbelman, )s*+
;eel -rimley, >>;
/4. )+ =adison, 0uite 44
0eattle , DA &3//
;hone# /476%%46$$$&
8a9# /476%%46$.&4
eLimbelman:peelbrimley+com
Atty for !)85I0DIN!0A2 =ANA@)=)5N "A+ AN! A""2)!I5)!
BA=) >)N!)20, IN"+ A0 0?"")00A2 IN IN5)2)05 5A AA=)0 8?N!IN@
"A2;A2A5IAN !-A AA=)0 BA=) >AAN
!A5)! this <anuary th, /4/
/s/ (ach "oughlin
(ach "oughlin, )s*+
Attorney for ;laintiffs <oni and <ames "arpentier
ASIDE ORDER GRANTING SUMMARY JUDGMENT '/
INDEK TO EKHIDITSF
+ )YBI-I5 # AA=)0 =A25@A@) IN,)05=)N5 52?05 /44'6/ which
would strongly indicated that the "arpentierIs loan was 0)"?2I5I()!+ It
appears the EpoolE can be found here#
http#//www+secinfo+com/K/0)"/8ilings+asp?
"IQU$/&4&7PAsU-8A"0PAs8ilerU8PAsAwnerU-APAsIssuerU"0 Aames
=ortgage Investment 5rust /44'6/F Ane () page+
/+ )YBI-I5 /# where the citiLens of Nevada get to have lifetime appointee
8ederal "ourt Gudges making, or seemingly making, Nevada >aw in
contravention of the doctrines of abstention, comity, etc+ something so
elo*uently argued against by the venerable @eof @iles, )s* (no connection or
affiliation to the undersigned, Gust a fan of his work) in his /3< letter in =avesF
5hree ($) pages+
ASIDE ORDER GRANTING SUMMARY JUDGMENT '$

1 11 12 CV08-01709-2643805 (Reply To in Opposition) 0204 62337 03628

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1 11 12 CV08-01709-2643805 (Reply To in Opposition) 0204 62337 03628

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REPLY TO OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION FOR

TRO/INJUNCTION; or PLED IN THE ALTERNATIVE; MOTION TO SET ASIDE

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