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Dwight A. Bennett
695-725 Hwy 36 W
Susanville, CA 96130
530-260-1189
renegaderemount@yahoo.com
In Pro Per

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LASSEN

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NORMAN W. ALLEN,
Plaintiff,

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vs.
SUMMIT FINANCIAL GROUP;
DANA CAPITOL CORP.; STEVE WEICH; ROD
HOSILYK; DWIGHT A. BENNETT; JUDITH A.
ST. JOHN; WILSHIRE CREDIT CORP.;
EVANS APPRAISAL SERVICES, INC.; and
DOES 1-10,
Defendants.

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WELLS FARGO BANK, N.A., as Trustee

for MLMI Trust Series 2005-HE3 and BAC
HOME LOANS SERVICING, LP, a Texas
limited partnership, successor by merger to
Wilshire Credit Corporation, erroneously
sued as BAC Home Loan Servicing, LLP,

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Cross-Complainants,
vs.

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NORMAN W. ALLEN, DWIGHT A.

BENNETT, JUDITH A. ST. JOHN,
EVANS APPRAISAL SERVICES, INC.,
AND ROES 1-10,
Cross-Defendant.

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Lead Case No.: 45679

(Consolidated with Case No. 50324)
(Related Cases Nos. 46190 & DV49327
[Appellate Case No. C072171])

DEFENDANT DWIGHT A. BENNETTS;

NOTICE OF MOTION AND MOTION
TO EXPUNGE NOTICE OF PENDENCY
(LIS PENDENS)
[Under CCP 405.30 et seq.]

Hearing: April 15, 2016

Time: 8:30 a.m.
Place: Lassen County Hall of Justice
Dept.: 3
Judge: The Honorable C. Anders Holmer

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 1

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Plaintiff,
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vs.
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T.D. SERVICE COMPANY; WELLS FARGO)
BANK, N.A. as Trustee for the MLMI Trust )
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Series 2005-HE3; and DOES 1-10,
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Defendants.
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JUDITH A. ST. JOHN
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Cross-Complainant,
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[Declaratory Relief
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Comparative Indemnity]
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vs.
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DWIGHT A. BENNETT
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and DOES 11 through 25,
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Cross-Defendants,
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AND OTHER RELATED CROSS-ACTIONS
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JUDITH A. ST. JOHN,
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Cross-Complainant,
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vs.
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WELLS FARGO BANK, N.A., WELLS
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FARGO BANK, N.A., AS TRUSTEE FOR
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MLMI TRUST SERIES 2005-HE3, BANK
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OF AMERICA, N.A., AS SUCCESSOR
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BY MERGER TO BAC HOME LOANS
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SERVICING, LP, VICKI LOZANO,
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VICKI LOZANO AS RECEIVER IN
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CASE #45679, COUNTY OF LASSEN,
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LARRY MILLAR, PETE HEIMBIGNER,
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DONNA HAS TIES, JUDY WALESCH,
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THE GRACE FOUNDATION OF
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NORTHERN CALIFORNIA, AND ROES
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11 thru 50,
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Defendants.
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NORMAN W. ALLEN

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 2

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TO THE ABOVE-ENTITLED COURT AND ALL INTERESTED PARTIES HEREIN:

PLEASE TAKE NOTICE THAT on April 15, 2016 at 8:30 a.m., or as soon thereafter as

the matter may be heard, in Department 3 of the above-entitled Court, located at 2610

Riverside Drive, Susanville, California 86130 Defendant DWIGHT BENNETT, (hereinafter

MOVING DEFENDANT), will and hereby does move to expunge Notice of Pendency of

Action (Lis Pendens) that was given in the above entitled action by Cross-Plaintiffs WELLS

FARGO BANK N. A. as Trustee etc., and NATIONSTAR MORTGAGE, dated February 18,

2016, a true and correct copy of which is attached hereto as Exhibit #1. The motion is made on

the grounds that the Notice of Pendency is without merit because the underlying c r o s s -

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a c t i o n is not an action for possession of real property, the cross-action is based in equitable

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remedies, for the Improvements, or alternatively, because claimant has not established by a

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preponderance of the evidence the probable validity of the real property claim. Further, the

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Cross-Plaintiffs have avoided any equitable determinations at hearings for equitable matters that

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were intended to establish equitable liabilities, setoffs, and equitable contributions. Instead banks

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have submitted three different summary adjudication orders for a single hearing.

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Further, all causes of action, that name this moving defendant in banks cross-action,

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specifically request remedies for misplaced Improvements. The improvements are not

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unique or irreplaceable real property, and the placement of the structures is insured under an

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American Land Title Association creditors policy. Cross-complainants cross-action is not for

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unique real property, it is for insured and replaceable Improvements that can be replaced with

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money. Further because, it is undisputed that the Certificate of Compliance conducted in 2004 by

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the acting Lassen County Surveyor James Eddie, central to this action, was flawed. All parties to

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the numerous actions at law that have arisen from the flawed Certificate of Compliance,

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acknowledge that this seminal event was a mutual mistake. That mutual mistake was necessarily

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between St. John, Bennett, the surveyor, Lassen County, the appraiser Chris Talley, Evans

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Appraisal Services, Summit Financial Group, Chicago Title, Option One, Merrill Lynch, Wells

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Fargo, Wilshire Credit, and Norman Allen. Accordingly, the fifth cause of action alleged for an

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equitable lien, is for a money judgment of unknown specifications, equities, and liabilities that

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 3

has not yet been adjudicated. The active complaints and cross-complainants do not allege that the

real property encumbered under the Allen to Option One Deed of Trust is less or different than

that real property offered for sale, and sold by movant. Allen purchased the correctly described

real property by contract with the correct legal description that is encumbered under the Option

One deed of trust. The cross-plaintiffs do not assert a cause of action for the recovery of unique

real property in their sixth cause of action for equitable mortgage. Their sixth cause of action is

for the right to establish a mortgage encumbering the Improvements based in equity. It is not a

real property claim; it seeks an equitable mortgage on the Improvements. The cross-

complainants cannot proceed to foreclosure on their sixth Cause of Action for equitable

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mortgage, because the fundamental terms for redemption, and reconveyance, have not been

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adjudicated, thus the requirements to establish and foreclose a mortgage under California law are

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not met. Moreover, movant has raised and reasserts now the one action rule, the banks have

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violated the one action rule, and the security first rule, sanctions are required that have not yet

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been adjudicated. The banks sixth cause of action does not state a claim for possession or title to

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real property. The banks first, third, and fourth causes of action for Declaratory Judgment,

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Equitable Subrogation, and Reformation respectively, each address the Improvements or the

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14-acres exclusively, and do not state real property claims. Given the failure to complete

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hearings in equity, damages created by illegal seizure, damages for conversion of unencumbered

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property, assumption of St. John liabilities and equities by settlement, and required sanctions for

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the security first rule they have not established by a preponderance of the evidence that the

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claims will afford any change of possession or title in real property. Cross-plaintiffs Cross-

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action does not state a real property claim. The July 1, 2013 Cross-complaint alleged by banks

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does not name movant in any cause of action and no jurisdiction over movant was acquired by it.

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This motion will be made pursuant to Code of Civil Procedure 405.30, 405.31, and

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405.32 et seq. The motion is based upon this notice, the accompanying memorandum of points

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and authorities, Movants Request for Judicial Notice in support, all pleadings and papers on file

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in the above-captioned actions, and other evidence that may be presented by MOVING

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DEFENDANT prior to or at the hearing on this motion to strike the notice of pendency.

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 4

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DATED: __3/14/16______

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Dwight A. Bennett, In pro per

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MEMORANDUM OF POINTS AND AUTHORITIES

The Court should GRANT the motion for the following reasons.
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1. Factual Background

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1)

This matter arises from discussions held (hereinafter the DISCUSSIONS) in

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late 2003, between Defendant Judith A. St. John (hereinafter ST. JOHN) and Defendant

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Steve Wei ch (hereinafter WEICH), who was a mortgage broker licensed in the State of

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Nevada to package loans for Nevada First Financial Corp. Weich in the process of seeding

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business prepared a flyer delivered to California Schools purporting he was authorized to

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broker Cal S.T.R.S. financing in Lassen County, (California State Teachers Retirement

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Services). That claim was also false. St. John and moving defendant Dwight Bennett

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(hereinafter BENNETT), had begun living as a couple in February 1996 and acting as business

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partners in registered Missouri Fox Trotting horses, and the purchase and rehabilitation of

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foreclosure properties then sold or put on line as income producing rentals with tax advantages.

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St. John had very good credit, a steady but modest income as an elementary school teacher and

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approximately $10,000.00 in savings from her career. Bennett had an established real estate

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services company conducting trash-outs, rehabilitation, and repairs for local realtors and property

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owners. St. John maintained her regular work hours and kept the business books, Bennett

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continued in his profession while using family contacts with Coldwell Banker he found

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investment properties, negotiated the purchase, provided materials, and completed the

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rehabilitation needed to convert the foreclosures into income producing properties. By 2004

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Bennett and St. John owned three rentals and had purchased Whispering Pines Stables removing

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it from bankruptcy and foreclosure. During early 2004 the couple had occasion to examine their

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 5

assets and debts. They determined that they each earned outside incomes and all properties were

operating at a profit with a loan to value ratio approximately $1.3 Mil. in Assets and $410,000.00

in mortgage debts. St. John was a meticulous record keeper and their partnership transactions

were reduced to writing. (See Declaration of Norman W. Allen, Exhibit #2 and Declaration of

Dwight A. Bennett). Steve Weich and Summit began acting as St. Johns financial advisors when

she undertook her first efforts at managing the asset mortgages while refinancing their rental

properties. 2004 represented the first year without exceptional tax advantages as the properties

required no investments for major improvements, only preparation for sale and Bennett was

remodeling 1 rental in preparation of selling it on the open market. When St. John explained a

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tax scheme to Bennett proposed by Weich; Bennett and St. John experienced their first deep

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divide over financial matters. There was ample cash on hand but Weich had suggested a money

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laundering/tax avoidance scheme using the rentals and ranch with their nine (9) bank accounts

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that would give the false impression of losses by each of the businesses, each business loaning

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the other businesses operating funds. Bennett adamantly refused and scheduled a conference

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with their tax preparer for explanation to St. John, for the penalties of tax fraud on a small

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business and individuals, and to determine the approximate amount of capital gains taxes

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required on the upcoming sale. Subsequently, on Weichs advice, St. John concealed partnership

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funds, stripped the ranch bank account, then removed their partnership accounts, bank records,

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and contracts from the premises. She reduced their vehicles and horses to her name only.

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Simultaneously, Weich presented a refinancing scheme to Bennett that were designed to reduce

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the deed of Whispering Pines to St. John name only. Presenting what he had discovered through

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historical Escrow Documents, alleging that Whispering Pines would benefit through a division

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by certificate of compliance, (hereinafter C of C). A division that Weich alleged would assure

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excellent interest rates and ease of financing by returning the consolidated parcels to a 40-acre

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bare parcel and a 14.03 Improved parcel. After the C of C was underway Weich suggested that

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following the C of C, St. John should quit claim off of the 14-acre parcel, wait 6 months to a year

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and then purchase the Ranch from Bennett, and upon their marriage, they would be reunited

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on title again. Bennett angrily refused and dismissed Weich.

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 6

2)

Unknown to Bennett, St. John continued refinancing the rental properties in her

name only, while Bennett prepared them for sale with labor intensive remodeling at the height of

the real estate market. In January of 2005 St. John left the ranch during a heavy snow but

returned numerous times until November 2005, to clean out their partnership and banking

records. Shortly after her departure Bennett learned that St. John had indeed quit claimed off of

the ranch deed and had stopped making the ranch mortgage payments from its missing proceeds,

she was borrowing ranch payments from Allen without Bennetts knowledge, she asked Allen

not to tell Bennett, after borrowing money from Allen but she did not use it to make the

mortgage payments. When the checkbook was returned to Bennett there was a balance of

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approximately $10,000, all funds borrowed from Allen. The ranch payment was in arrears

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approximately $12,000. Weich suddenly reentered with the ranch file, under his new broker,

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Summit Financial Group, Inc., and with a loan package all ready to go in time to avoid the

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imminent foreclosure scheduled in slightly over 100 days. Weich explained that he had advised

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St. John to not waste any more money by making the ranch payments until he had refinanced

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it. He also told Bennett that the lender wanted unique high value properties with substantial

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equity, that were difficult to finance. He suggested that these successful creditors were interested

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in helping borrowers, suggesting the creditors personal attention meant latitude in underwriting

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hence no pest inspections or other traditional reports were required. Bennett had three angry

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encounters with Weich as he reemerged. St. John and Weich pressured Allen into saving the

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ranch against Bennetts wishes. For the fiscal year of 2004 St. John filed federal income taxes

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claiming a $50,000 loss on Whispering Pines. Later an audit of the books showed the ranch

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earned $45,000 in net profits and she received a $29,000 federal income tax return perpetrating a

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$124,000 + or - tax fraud for 2004. St. John withdrew the partnership real property from the

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market, cancelling a sale for Exhibit #2. Then she changed the utilities into her name for six (6)

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months before selling the subject of Exhibit #2 for $175,000.00, unlawfully avoiding all capital

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gains taxes and avoiding the partnership split of the resulting taxable proceeds. By fraudulently

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avoiding capital gains taxes on the partnership property St. John absconded with $100,000 + or

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in tax free proceeds, rather than of the $85,000.00 projected after payment of capital gains

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 7

taxes with the partnership split. Bennett and McNeal shared these realities during negotiations in

2009 with St. Johns counsel of record, now the Honorable Judge Michele Verderosa, and a

wave of terror and death followed, engulfing the ranch and devastating the business, while

Verderosa withdrew as St. Johns Counsel. Each of these above matters are based on direct

personal knowledge, evidence, eye witness accounts and the records of Lassen 45679, 46190,

and DV49327.

ARGUMENT

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3)

Wells Fargo Bank, Bank of America, Judith St. John and their counsels of record

have engaged in conflicting allegations regarding the certificate of compliance procedure

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undertaken in 2003-4. Each above mentioned party acknowledges that the sale with misplaced

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improvements was a mutual mistake, and no one knew that the improvements were situated,

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on parcel no.: 099-260-69, not parcel no.: 099-260-70 as believed. The simple truth is that a state

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licensed surveyor conducted the certificate of compliance. Yet, these same parties allege that

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Bennett, St. John and Allen or variously Bennett, and Allen knew the C of C was errant at the

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time of the sale, and for unknown reasons, launched headfirst and fraudulently into the

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purchase/sale and subsequent encumbrance. As nonsensical as such a theory is, it imputes

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fraudulent conduct. There was no fraudulent conveyance and, a constructive trust isnt justified.

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It is not real property claim, the missing elements are only improvements resolved by money

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damages, if any. Wells Fargos conduct and unethical actions have manipulated the Courts,

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starting with the Ryan Firm, and continuing through Bryan Cave L.L.P. Wells Fargo Bank has so

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far claimed three (3) lis pendens (See Exhibit #3 and #4), to create and impose undue economic

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hardship and imply grounds for extreme acts, as in illegal seizure through their receiver.

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Nonetheless, as is clearly stated in Wells Fargo Bank N.A. as Trustee Etc., and BACs (B.of A.),

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cross-complaint at each cause of action, this instant case concerns only misplaced improvements,

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while the real property conveyed is exactly the same property promised. Although the Banks

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have never conducted a survey to ascertain how much more land they would receive, from aerial

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photographs it appears to be 15-20 more acres, if the Improvements and the land they sit on were

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to be given over to Wells Fargo as Trustee. It is moot because the banks want even more, and

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 8

seek to control and foreclose all 54.03-acres. There was no precedent for Wells Fargo Bank to

seize the 54.03-acres in 2011, and no precedent for their efforts to foreclose 40-acres more than

is encumbered under the Option One Deed of Trust. (There is no WFB Deed of Trust as claimed

in the banks cross-action, motion for summary adjudication, and application for ex parte

receiver).

(i) A lis pendens is a document recorded with the county recorder's office
that gives constructive notice that a "real property claim" has been filed
that may "affect . . . title to, or the right to possession of, specific real
property . . . ." (Code Civ. Proc., 405.4.) (Campbell v. Superior Court
(La Barrie) (2005) 132 Cal.App.4th 904 [34 Cal.Rptr.3d 68]).

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4)

While a mutual mistake occurred beyond the knowledge or control of the parties

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to the transaction, here the same is alleged as fraudulent conduct by parties litigant. Examination

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of conduct during the transaction, to identify the frauds alleged was needed, all parties

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acknowledge the mutual mistake, and the allegations being unfounded, were set forth to gain

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tactical advantage at litigation. Fraud was practiced by some of the parties prior to the transaction

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or subsequent to the transaction, in litigation, and on the court by its officers and parties litigant.

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Without seeking to identify where the fraud arises the Court abrogates equity and will reinforce

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misconduct and injustice should that determination forgo the examination of historical conduct

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by the parties with unclean hands. Wells Fargo has attacked Bennett and others relentlessly

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alleging mortgage fraud, conspiracy, fraud, foreclosure avoidance schemes, ill-conceived

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partition efforts and more. The ex parte receiver was appointed in part based on allegations of

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fraudulent conveyance and the recovery of fraudulently transferred or stolen real and private

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property that did not exist. The banks completely misrepresented the truth of matters to achieve

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their litigation goals. It is the core requirement of matters in equity that the litigants enter with

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clean hands at the source event and at litigation before the court to resolve equitable issues. As to

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the actual duties and motivations during the transaction, and the behavior and integrity during

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litigation the courts have stated:

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ii) B. The fraudulent conveyance statute requires actual, subjective

knowledge by the alleged fraudulent transferee. The fiction of
constructive knowledge is not enough.

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a. (1) The requirements of the fraudulent conveyance statute are:

b. "the term `good faith,' as used in this subdivision and subdivision (d)
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[of Civ. Code 3439.08] means that the transferee did not collude
with the debtor or otherwise actively participate in (any) [f]raudulent
scheme." (See legis. committee com., 12 West's Ann. Civ. Code
(1994 pocket supp.) 3439.03, p. 161.)

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c. "Fraudulent intent," "collusion," "active participation," "fraudulent

scheme" this is the language of deliberate wrongful conduct. It belies

any notion that one can become a fraudulent transferee by accident, or
even negligently. It certainly belies the notion that guilty knowledge can
be created by the fiction of constructive notice.
(See Richardson v. White (1861) 18 Cal. 102, 106 [recognizing that
constructive notice is a "fiction"].) (Lewis v. Superior Court of Los Angeles
County (1994) 30 Cal.App.4th 1850 at Pg. 1859 [37 Cal. Rptr.2d 63]).

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5)

Bennett followed the exact procedures required of a property owner in the

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conduct of a Certificate of Compliance under the California Subdivision Map Act. Those

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procedures entail the use of a licensed land surveyor, whether a private surveyor or by

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compensating the county for the work performed by the county surveyor. Bennett had no way of

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knowing that the temporary county surveyor James Eddy, would not conduct the required site

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inspections to determine the placement of improvements. Bennett and Allen had no way of

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knowing that the appraiser hired by Summit Financial was the son-in-law of that surveyor and

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that he would only confirm the details of the certificate of compliance privately, through his

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family member and not by the use of county agencies and records. Moreover, Bennett and Allen

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did not know until after the errors had been discovered, that St. John had provided Summit and

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Weich, (who were all 3 pushing to expedite the procedure in 2003-4), with surveyor James

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Eddys contact information. Bennett and Allen still do not know what conversation transpired

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that induced Eddy to forego his professional responsibilities. It is a matter of sworn deposition

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testimony that Bennett was completely forthcoming with the defendant appraiser, informing him

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of the completed C of C, and that St. John, on Weichs advise had deeded off of the subject

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property and then withdrew, while both induced Allen to stand in her position. St. John would

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have been a straw buyer. Allen was a buyer in good faith. Moreover, Bennett and Allen ordered

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title reports, purchased extended and exceptional title insurance C.L.T.A. and A.L.T.A. to insure

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 10

the transaction, themselves, and the creditor. James Eddy, the acting Lassen County Surveyor,

fouled the procedure designed to avoid just that possibility, submitted incorrectly drawn

elevation maps of the parcels in the approval process and to the state offices in Sacramento. Thus

at the time of the transaction the parcels incorrectly rendered, had aged over a year in the Big

Book, the errors were not discovered at the time of the sale and the title insurers policies were

obligated to indemnify the true Creditor for the title errors. Both Bennett and Allen were

transparent during the transaction and made exactly the kind of good faith efforts and reasonable

inquiries the Legislature envisioned a reasonably prudent person would do, there was no

fraudulent scheme on the part of Allen or Bennett:

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i)

But that is nevertheless what the trial court concluded, rejecting the Legislature's
clear mandate in the name of "common sense": "[C]ommon sense suggests that the
test cannot be a purely subjective one which allows the transferee to preserve good
faith by hiding his head in the sand and making no reasonable inquiry. The extensive
case authorities cited at pages 5-6 of Folksam's reply brief confirm that `good faith'
includes doing the sort of reasonable inquiry that a reasonably prudent person would
do under the circumstances." The problem with this reasoning, aside from the fact
that the cited authorities do not support it, is that in the very next breath the trial court
concluded that the Lewises did make what the court itself believed was a
"reasonable inquiry"! The court said: "reasonable inquiry includes getting a title
report and title insurance.... The Lewises themselves by their conduct evidence this
to be so: they obtained title reports and title insurance." (Original italics.)
Unfortunately, the Lewises' reasonable inquiry still left them in ignorance, because
the federal lis pendens was not disclosed in the preliminary reports and title policies.
ii) Since the Lewises had made precisely the inquiry that the trial court thought they
should have made and still knew nothing about the claims against Shipley, the trial
court erred in holding that they "colluded" or "actively participated" in the claimed
fraudulent conveyance. Instead, the court stripped the Lewises of their good faith
status by imputing to them knowledge supposedly (but not actually) held by their title
insurer (Lewis v. Superior Court of Los Angeles County (1994) 30 Cal.App.4th
1850, See at Pg. 1860 [37 Cal. Rptr.2d 63])

5)

In Lewis v. Superior Court, the offending title event was an unindexed Lis

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Pendens misfiled in the federal court. The good faith effort was the same as here; reasonable

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inquiry, title reports, and title insurance. In La Paglia v. The Superior Court of San Diego County, the

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Court of Appeals followed the legislatures consistent narrowing of the lis pendens statutes, the 4th

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District Court refused to allow a lis pendens by creditors, as a tool to bludgeon litigants into unfair

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 11

settlement and financial ruin, citing as follows:

a) In California, a notice of lis pendens gives constructive notice that an action has
been filed affecting title or right to possession of the real property described in
the notice. ( 409.) Any taker of a subsequently created interest in that property
takes his interest subject to the outcome of that litigation. (Urez
Corp. v. Superior Court (1987) 190 Cal. App.3d 1141, 1144 [235 Cal. Rptr.
837].)

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b) While the lis pendens statute was designed to give notice to third parties and
not to aid plaintiffs in pursuing claims, the practical effect of a recorded lis
pendens is to render a defendant's property unmarketable and unsuitable as
security for a loan. The financial pressure exerted on the property owner may
be considerable, forcing him to settle not due to the merits of the suit but to rid
himself of the cloud upon his title. The potential for abuse is obvious.
(See Nash v. Superior Court (1978) 86 Cal. App.3d 690, 700 [150 Cal. Rptr.
394] [disapproved on other grounds in Malcolm v. Superior Court (1981) 29
Cal.3d 518, 528 (174 Cal. Rptr. 694, 629 P.2d 495)]; Comment, The Use of Lis
Pendens in Actions Alleging Constructive Trusts or Equitable Liens: Due
Process Considerations (1984) 24 Santa Clara L.Rev. 137, 140.) In light of its
history as a device designed to protect third parties rather than provide
plaintiffs with an unfair advantage in litigation, courts have (La Paglia at Pg.
1327) restricted rather than broadened application of this potentially
devastating pretrial remedy. (See, e.g., Urez Corp. v. Superior Court,
supra, 190 Cal. App.3d at p. 1145; Moseley v. Superior Court (1986) 177 Cal.
App.3d 672, 678 [223 Cal. Rptr. 116].) (La Paglia v. The Superior Court of San
Diego County, (1989) 215 Cal. App. 3d 1322 [264 Cal. Rptr. 63]).

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6)

Wells Fargo Bank N.A. as Trustee through the current lis pendens is continuing

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its practice of law in the manner of true Lassen County good ol boys, free of ethical restraints,

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unshackled from legal requirements for factual pleadings, and with complete disregard for

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judicial oversight. Why would they expect to be protected by litigation immunity while

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perpetrating fraud after fraud upon the courts? Is it because a court that has no integrity sacrifices

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nothing in the abuses of process that defile the significance of meaningful due process? Integrity

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and ethics are required for the flames of indignity to rise up at the abolition of equal justice under

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the law. The practice that has been applied by the Banks and others is for attorneys to cast

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aspersions with hearsay, alleging fraudulent and/or improper schemes and partitions, while

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alleging a mutual mistake by all parties. To attack and blame the victims least able to defend

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themselves with vindictive but empty hearsay allegations that will not be adjudicated works

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because it foments prejudices that replace fact finding procedures. In this instant case there is a

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 12

historical pattern of unethical deferral of inquiry into routinely false allegations in the banks

pleadings at the expense of meaningful due process, statutory requirements, equities, and

established doctrines of law. Notably, judicial estoppel, equitable estoppel, and the preclusion of

inconsistent positions should have drawn serious sanctions long ago, and prevented the banks

and counsel for banks from continuing the use of such tactics. By this current notice of lis

pendens the banks are attempting to diminish and obscure a fraud practiced upon the United

States Bankruptcy Court. The banks falsely claimed on September 2, 2011 and October 17, 2011

that they had already recorded and filed a lis pendens on Bennetts real property, after the lien

had been fully litigated in Lassen. Further misleading the federal court by allegations that

10

Lassen 46190 is Wells Fargos complaint for mortgage fraud against Bennett consolidated

11

with Lassen 45679 in 2011. The banks through their counsel were able to completely mystify

12

and defraud the bankruptcy court by falsely misrepresenting events in the Lassen Superior Court.

13

Using the lis pendens process:

14

1) CREDITORS WELLS FARGO BANK, N.A. AND BAC HOME LOANS SERVICING,

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LP'S REPLY TO THE U.S. TRUSTEE'S OPPOSITION TO MOTION FOR RELIEF

FROM STAY AND TO EXCUSE TURNOVER BY RECEIVER PURSUANT TO 11
U.S.C. 362 (d) AND 543 (d). Filed October 7, 2011, in which Wells Fargo and BAC
fraudulently alleged the following:
(i) Trustee's analysis and conclusion, however, are incorrect. Specifically,
Creditors' interest in the Subject Property is not subject to a trustee's power
under section 544. First, Creditors' interest in the Subject Property is not
subject to section 544 because there is a lis pendens giving notice of
Creditors' claims against the Subject Property. (Exhibit 3 Pg. 2 2)
(ii) Pursuant to controlling California law, Creditors' interest in the
Subject Property is not subject to the "strong arm" power of section 544
if a trustee or debtor in possession has been put on constructive or
inquiry notice. (In re Deuel, (9th Cir. BAP (Cal.) 2006) 361 B.R. 509, 514,
quoting In re Professional Investment Properties of America , (9th Cir.
1992) 955 F.2d 623 at 627). Here, the chapter 11 debtor in possession
had constructive notice of Creditors' claims against the Subject Property
on the date the Petition was filed because Creditors' claims could
reasonably have been discovered from a lis pendens recorded against
the Subject Property (Exhibit 3 Pg. 3, 2).

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NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 13

(iii) Pursuant to California law, a lis pendens provides constructive

notice of claims against the real property to all parties who may
subsequently obtain an interest in that property. (In re Gurs, (9th Cir. BAP
(Cal.) 1983) 27 B.R. 163, 165). Additionally, the lis pendens gives
constructive notice not only of the facts apparent on the face of the
pleadings in the action, but of all facts that could have been ascertained
by proper inquiry. (Id). Therefore, a bankruptcy trustee or debtor in
possession is bound by facts disclosed by the lis pendens, the pleadings
on file with the superior court and any facts to which a reasonable inquiry
in light of the foregoing items would necessarily lead. (Id at 165-166).
(Exhibit 3 Pg. 3 4 Pg. 4 1).

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3
4
5
6
7
8

(iv) In this case, a lis pendens (the "Lis Pendens") was

recorded on December 14, 2007, in case number 46190 in
Lassen County Superior Court. (Exhibit 3 Pg. 4 2). (Emphasis
added in each of the above).

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10
11

7)

Much like this Lassen Court, the United States Bankruptcy Court accepted the

12

complete fabrications of Bank Attorneys Beardsley and Ryan over the vehement and absolutely

13

truthful objections of debtor in pro se. Obviously, the bankruptcy Judge didnt bother to read the

14

misrepresented lis pendens and falsified submission by banks counsel, merely assuming that his

15

fellow attorneys must be honest and ethical in the court. Astonishingly, the Hon. Judge

16

McManus then incorporated Wells Fargos fraudulent misrepresentations into his ruling and

17

alleged that Bennetts bankruptcy petition must have been filed in bad faith, in part because

18

Bennett alleged that the banks had no lis pendens recorded in Lassen case no.: 45679. After 4

19

years of abusive fraud in the courts, the banks casually file a lis pendens, (See Exhibits 1 & 4).

20

Now, for the first time openly alleging that their equitable remedies are actually real property

21

claims after decimating or buying out virtually all resistance.

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a) The Supreme Court outlined the law governing the statutory scheme pertaining to the
recording of a lis pendens and the procedure applicable to expunging an improperly
recorded notice in Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642,
647, 15 Cal.Rptr.3d 805, 93 P.3d 395 (Kirkeby):
(i) A lis pendens may be filed by any party in an action who asserts a "real property
claim." (Code Civ. Proc., 405.20.) [1] Section 405.4 defines a "`Real property
claim'" as "the cause or causes of action in a pleading which would, if
meritorious, affect (a) title to, or the right to possession of, specific real
property...." "If the pleading filed by the claimant does not properly plead a real
property claim, the lis pendens must be expunged upon motion under CCP
NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 14

405.31." (Code com., 14A West's Ann. Code Civ. Proc. (2004) foll. 405.4, p.
239.)
(ii) Section 405.30 allows the property owner to remove an improperly recorded lis
pendens by bringing a motion to expunge. There are several statutory bases for
expungement of a lis pendens, including the claim at issue here: claimant's
pleadings, on which the lis pendens is based, do not contain a real property
claim. (See 405.31.) [2] Unlike most other motions, when a motion to expunge
is brought, the burden is on the party opposing the motion to show the existence
of a real property claim. (See 405.30.) (Campbell v. Superior Court, (2005)
132 Cal.App.4th 904 [34 Cal. Rptr. 3d 68].)

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b) (Accord BGJ Associates, LLC v. Superior Court (1999) 75 Cal.App.4th 952, 957, 89
Cal.Rptr.2d 693 (BGJ Associates) [applying "demurrer-like review pursuant to section
405.31 of whether the pleading states a `real property claim'"].)
i)

A request for the imposition of an equitable lien does not support the recording of a
lis pendens
a. Existing case law
(i) "An equitable lien is a right to subject property not in the possession of
the lienor to the payment of a debt as a charge against that property.
[Citation.] It may arise from a contract [34 Cal. Rptr. 3d at Pg.78] which
reveals an intent to charge particular property with a debt or out of
general considerations of right and justice as applied to the relations of
the parties and the circumstances of their dealings.' [Citation.]

15

(ii) A number of California courts have considered whether a complaint

seeking the imposition of an equitable lien or other equitable security
interest in real property constitutes a real property claim under the lis
pendens statutes. The majority of these courts have concluded that a
claim that seeks an interest in real property merely for the purpose of
securing a money damage judgment does not support the recording of a
lis pendens. (E.g., Lewis v. Superior Court (1994) 30 Cal.App.4th 1850,
1862, 37 Cal.Rptr.2d 63 (Lewis); La Paglia, supra, 215 Cal.App.3d at p.
1329, 264 Cal.Rptr. 63;Wardley Development Inc. v. Superior
Court (1989) 213 Cal.App.3d 391, 394, 262 Cal.Rptr. 87 (Wardley); Urez
Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149, 235 Cal.Rptr.
837 (Urez); but see Okuda v. Superior Court (1983) 144 Cal.App.3d 135,
141, 192 Cal.Rptr. 388 (Okuda); Coppinger v. Superior Court (1982) 134
Cal.App.3d 883, 891, 185 Cal.Rptr. 24 (Coppinger).) (Campbell v.
Superior Court, (2005) 132 Cal.App.4th 904 [34 Cal. Rptr. 3d 68].).

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8)

In examining the Banks Cross-action (Attached in Exhibit 3, for the

25

convenience of the Court), The causes of action involving Bennett are 1, 3, 4, 5, & 6. The first

26

cause of action for declaratory relief, states in pertinent part:

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a) 23. If the allegations of the Complaint are true, there exists a real
controversy between Cross-Complainants and Cross-Defendants, namely
the intent of all parties to convey the Improvements, concerning their
respective rights and duties under the WFB Deed of Trust and Contract,

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 15

requiring a judicial determination, interpretation, and declaration of the

parties' respective rights and duties under the WFB Deed of Trust and
Contract. (Cross-complaint 1st Cause of Action Pg. 5:14-19).
(Emphasis added).

1
2
3

9)

a) 31. Wells Fargo and BAC are informed and believe, and based thereon allege,
that Bennett intended to convey the Improvements to Allen when they entered
into the Contract for the sale of the 14 acres. (Cross-complaint 3rd cause of
action Pg. 6:16-18). (Emphasis added).

5
6
7

The Third cause of action for reformation, states in pertinent part:

10)

The Fourth cause of action for equitable subrogation, states:

a) ("Lender,") paid off the Existing Mortgage in order to secure the 14 acres and
Improvements. (Cross-complaint 4th cause of action Pg. 7:12-13).

b) Subrogating the current mortgage on the 14 acres with the Existing

Mortgage will re-align the interests of each party with the interests each party
intended to give and receive. (Cross-complaint 4th cause of action Pg. 7:17-19).
(Emphasis added in each of the above)

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11)

The Fifth cause of action for equitable lien, states in pertinent part:

12

a) 49. Therefore, Wells Fargo and BAC are entitled to the imposition of an
equitable lien on the improvements. Imposition of an equitable lien will put all
parties in their intended positions, and will afford all parties the benefits sought
by entering into these transactions. (Cross-complaint 5th cause of action Pg.
8:13-16). (Emphasis added).

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12)

The Sixth cause of action for equitable mortgage, states in pertinent part:
a) 57. Therefore, Wells Fargo and BAC are entitled to imposition of an equitable
mortgage on the Improvements.

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b) 58. This mortgage will be enforceable against any party adjudged to hold
title to the Improvements because the mortgage was intended by all parties
to encumber the improvements, and the loan proceeds were used to pay off
the existing loan on the Improvements. (Cross-complaint 6th cause of action
Pg. 9: 9-14). (Emphasis added). (From aerial photographs it appears that the
banks would reap the profit of 15 - 20 more acres than are encumbered if the
banks were to be gifted the land situated under the improvements).

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13)

It could not be clearer; each cause of action seeks redress for the missing

23

improvements. Moreover, the banks cross-action speaks to the 14.03-acres encumbered without
24

complaint, nor does the cross-action mention any further land sought, only equitable remedies
25

for the Improvements. Establishing that the 14.03-acres in real property encumbered by the
26

Option One Deed of Trust was the amount bargained for and received. The cross-action of Wells
27

Fargo Bank N.A. and BAC does not state a claim for real property and Wells Fargo Bank erred
28

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 16

in seizing and controlling the 40-acre parcel vested in Bennetts name, the act for which Bennett

has a reasonable belief Wells Fargo will soon find themselves exposed to liabilities that far

exceed the value of Bennetts vested lands. Mr. Greenes theory that Bennett sold Allen the

wrong parcel carries as much weight at law as his announcement to the Bankruptcy Court that

Lassen Superior Court already ruled, placing a lien in excess of $640,000.00 against the

Whispering Pines Ranch property. (Generally speaking, the U.S.B.C.E.D.C. hearing transcript

is not yet in hand).

14)

The Banks misrepresented claim that they purchased Bennetts post-petition

litigation rights would seem to be the underlying cause or complaint for which they now seek

10

to impose a lis pendens. Two factors that should be weighed in that determination are as follows:

11

1) Regardless of the excesses afforded the Banks in Lassen Superior Court, the Banks were very,

12

very careful to conceal the settlement with St. John from the Bankruptcy Court that afforded

13

them the backdoor purchase of her vested interest in the 40-acre parcel. Their caution was very

14

understandable because even as they were attempting to unlawfully close out Bennetts

15

bankruptcy estate they violated the Automatic Stay and due process requirements. Bennett is

16

currently in discussions with an attorney that practices in the United States Bankruptcy Court,

17

Eastern District of California and anticipates that the Banks will be facing a renewal of the

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Bankruptcy case with R.I.C.O. charges, and for multiple violations of the automatic stay, with

19

motions to void each and every act that followed a violation of the stay. Reopening the

20

adversarial and penalty phase of the bankruptcy procedure back to August 19, 2011. 2) Given the

21

collusion and culpability between St. John and the Banks in 45679 there is little doubt that their

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settlement will be recognized for what it really was, conspiracy between joint tortfeasors to reach

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a settlement that reduced liability for both to avoid damages with a collusive and unlawful

24

settlement. It is important to remember that Bennett was not allowed to oppose that settlement

25

despite being a victim of their tortious conduct.

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15)

As stated supra, Wells Fargo openly violated the one action rule when it moved

27

the court to appoint an ex parte receiver to seize Bennetts and Allens personal property,

28

business property, and Bennetts chattel, then disposed of it while he was deprived of his home

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 17

for three years and not allowed by the receiver to claim any of his own property. He was also

denied the due process briefing schedule promised by the court in 2013 when the receivers

counsel ignored the courts instruction, without repercussions, and proceeded to move by

stipulated order to dispose of Bennetts personal and business property before he was even

served with the stipulated order, doubly violating his due process protections. To be perfectly

clear; that personal and business property was unencumbered. The banks have repeatedly stated

that they held no interest or rights in the converted property. Moreover, as trespassers they had

no standing and no statutory right to seize and dispose of it. While this Court considers Bennetts

vindication of criminal charges by a verdict of not guilty, reached by a jury after a trial with

10

meaningful due process and examination of the evidence: Not really exonerated, but more like

11

the O. J. Simpson Trial, not guilty because of a few problems with the evidence. In other words,

12

guilty anyway, providing a clear example of the prejudicial bias inherent in this instant case

13

that apparently cannot be overcome. The falsified allegations and end runs around procedural

14

due process practiced here do not justify allowing a lis pendens to remain lodged when the

15

equitable remedies requested by Wells Fargo do not state a claim for real property. Especially, in

16

that the Allen sale and subsequent note and deed of trust was for 14.03-acres plus improvements,

17

not for 54.03-acres plus improvements. Where the seminal event was indisputably a mistake by

18

all parties caused by the overzealous unlicensed mortgage broker and failed procedures by the

19

acting County Surveyor. Moreover, a mistake that was fully insured by an A. L. T. A. title policy

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if Wells Fargo Bank had been able to produce the note for Chicago Title Insurance Co.

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a) (5a) Having concluded that the parties intended a secured transaction and
that an equitable mortgage was created, it follows that respondent must
follow the procedure specified in Code of Civil Procedure section 726; that is,
foreclose on the security. This section provides that "There can be but one
form of action for the recovery of any debt, or the enforcement of any right
secured by mortgage upon real or personal property, which action must be in
accordance with the provisions of this chapter...." (See Real Property and
Real Property Security: The Well-Being of the Law by John R. Hetland, 53
Cal.L.Rev., p.151.)
b) If there is in fact an equitable mortgage, the choice of which remedy to
pursue is not open to the creditor. The cases cited by respondent do not hold
otherwise. (7) It is true that the debtor may waive the rule by not affirmatively
pleading Code of Civil Procedure section 726 as a bar to an action on the
underlying obligation. Then the one action rule will operate to bar the creditor
from bringing a second action to foreclose the mortgage (Roseleaf Corp. v.
Chierighino, 59 Cal.2d 35, 38 [27 Cal. Rptr. 873, 378 P.2d 97]; James v.

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 18

1
2
3
4
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6
7
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P.C.S. Ginning Co., 276 Cal. App.2d 19, 22 [80 Cal. Rptr. 457]), but he may
proceed as he started and sue on the debt. The election, however, is only with
the borrower who may raise the defense of section 726 or waive the defense
by failing to raise it. (See Salter v. Ulrich, 22 Cal.2d 263 [138 P.2d 7, 146
A.L.R. 1344].) (Kaiser Industries Corp. v. Taylor, (1971) 17 Cal. App. 3d [346,
94 Cal. Rptr. 773].). (Emphasis in original).
c) "In operation, the `one form of action' rule `applies to any proceedings or
action by the beneficiary for the recovery of the debt, or enforcement of any
right, secured by a mortgage or deed of trust. The only "action" that is
permitted is foreclosure; any other "action" is a violation of the rule that
invokes severe sanctions.' [Citation.]" (Shin v. Superior Court (1994) 26 Cal.
App.4th 542, 545 [31 Cal. Rptr.2d 587].) If the secured creditor seeks a
personal money judgment against the debtor without first seeking foreclosure
of the mortgage or deed of trust, this is an election of remedies, and the
creditor thereby waives the right to foreclose on the security or sell the
security under a power of sale. (See Walker v. Community Bank (1974) 10
Cal.3d 729, 733 [111 Cal. Rptr. 897, 518 P.2d 329].)

CONCLUSION
10
11

Wells Fargo Bank N.A. as Trustee and BAC/Bank of Americas cross-complaint in

12

Lassen 45679 does not state a claim for real property and while avoiding lawful procedure has

13

been no real obstacle for the banks in Lassen Superior Court, Bennett requests that the Court

14

weigh constitutional property law. It is significant that Bennett was immobilized without any

15

available method to resolve the clouded title from discovery of the errant certificate of

16

compliance in 2005 until today, eleven (11) years. The Banks avoided suit for 4 years and four

17

months, while alleging no financial interests in the outcome as agents of the beneficial owner.

18

Then reversing 180 degrees in late 2010 and suddenly alleging; Wells Fargo as Trustee is the

19

beneficiary. With that contradiction in terms, WFB entered calling for equitable remedies while

20

using fraud and brutality to destroy equity. Both acts are perfect examples of the doctrine of

21

unclean hands. Recently, the California Supreme Court explained in Yvanova v. New Century

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Mortgage, Sup. Ct. S218973, that a deed of trust generally requires 3 parties; the mortgagee, the

23

trustee, and the mortgagor. The Trustee under the deed of trust may not initiate foreclosure

24

proceedings or otherwise act without direct orders from the beneficiary or holder of the note.

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When Bennett asked that simple question in 2011, the only answer he received was devastating

26

loss, unbearable pain and debilitating grief. Nonetheless, the answer is mandatory, thus: Since

27

Wells Fargo Bank as Trustee acknowledges its legal authority sounds by an assignment of the

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Deed of Trust, who then is the real party in interest in possession of the endorsed promissory

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 19

note? Wells Fargo Bank N.A. as Trustee alleges themselves the beneficiary, but the assignment

of a deed of trust does not convey beneficial ownership of the Note under Californias Civil

Code or Commercial Code. So that claim is simply not possible. It is a rather interesting

phenomena that although there is much reference to the promissory note in the banks many

requests for judicial notice, pleadings, and declarations, after eight and one half years of

litigation, and demands for prove up, discovery requests, and sanctions for abuse of discovery for

failure to produce the documentation, nowhere in the entire court file can the promissory note be

found. It is important to remember that this matter did not arise as a foreclosure case, in fact the

primary purpose of the Allen suit was to force the beneficiary or holder of the note to identify

10

themselves so that the title issues could be resolved and the bleeding stopped. From inception the

11

banks have refused to provide evidence of the note or the identity of the beneficiary. Before this

12

Court affords any more latitude for the Banks it may wish to ponder why the promissory note

13

remains missing after so many years of litigation, and how the banks managed to impose

14

summary adjudication forcing partial assignment of the debt on a third party by summary

15

procedures without first proving up ownership of the debt? Why the banks were willing to pay

16

over $6000.00 in discovery sanctions in 2012 rather than providing in camera viewing of the

17

endorsed Note? Since Mr. Ryan stated flatly, responding to a motion to compel, in a writing filed

18

into this official court record, that: Wells Fargo does not have the note, Wilshire did not have the

19

note, BAC/B of A does not have the note and his office as counsel for the banks had the

20

origination file but also did not have the note. The Note required under U. S. Bankruptcy Law for

21

any motion by a creditor to lift the automatic stay. Ryan stated by email, I dont have the

22

grounds but if we can make this Judge hate him enough, we can get it anyway. Why did

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Nationsstar provide Mr. Allen with an Allonge unattached and endorsed in blank purporting to

24

transfer the note when allonges must be attached and fully endorsed to transfer the note? Last, in

25

California when defendants raise even a reasonable doubt as to the standing of a plaintiff the

26

burden of establishing standing turns to the plaintiff to prove up standing, there are no grounds or

27

technicalities that can prevent the prove up of standing when standing is reasonably in doubt.

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Wells Fargo Bank, who admittedly cannot produce the note, has enjoyed the benefits of 4.33

NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 20

years as non-monetary agent for the beneficiary and 4.15 years as beneficiary, for the same loan,

on the same property, in the same litigation, with the same publicly recorded documentation.

That doesnt seem even a little odd to the court? This motion to expunge the lis pendens places

the burden on the party filing the lis pendens to prove that the seminal complaint or in this case,

cross-complaint states a claim for real property, or despite the violations of seizure, ejectment,

conversion, in addition to the security first and one action rules the preponderance of

evidence will afford transfer of title or possession. Again, the Allen suit arose because the

alleged creditor/beneficiary, was unable to prove up and collect on the A.L.T.A. title policy for

the misplaced improvements. The title company requires evidence of possession of the Note,

10

Wells Fargo was unable to provide that and the truth remains hidden in the weeds. There is

11

significant evidence of what happened to the note, why Wells Fargo is not the beneficiary and

12

does not act for the beneficiary, but the banks will stop at nothing to prevent that evidence from

13

being presented. This Court at every juncture supports their wish to keep the truth from being

14

revealed.

15

The Banks have not stated a claim for real property in their cross-action and despite

16

contentions otherwise the St. John Cross-action for comparative indemnity was precisely written

17

by St. Johns attorney Michelle Verderosa to vest responsibility for wrongs in the party

18

committing those wrongs, it is not a blanket indemnification. For the reasons stated above

19

Moving Defendant respectfully requests that this Court order that Wells Fargo Banks lis

20

pendens be expunged.

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Dated: March 14, 2016

Respectfully Submitted,

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__________________________________
Dwight A. Bennett, in pro per

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NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS - 21