quiet title california foreclosure defence

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OPPOSITION TO DEMMURER

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA

CIVIL DIVISION

P

Plaintiff,

vs.

DBNTC DEUTSCHE BANK NATIONAL TRUST COMPANY’S TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST MORTGAGE PASS THROUGH CERTIFICATES 2007-7 AND WESTERN PROGRESSIVE LLC ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE ,ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS TITLE OR ANY CLOUD ON PLAINTIFFS TITLE THERETO; AND JOHN DOES 1-20 INCLUSIVE

Defendant

))))))))))

PRELIMINARY STATEMENT

1 ) respectfully submits this Memorandum of Points and Authorities in opposition to

Deutsche Bank National Trust Corporation (DBNTC) and Western Progressive llc (Western)

collectively known as (defendants) demurrer to his Complaint. Plaintiff opposes Defendant’s

Demurrer on the ground it fails to raise any legal and reasonable factual basis opposing the

allegations of the complaint’ and is insufficient to support a cause of action on any available

legal theory (specifically Pled or not), the demurrer is without merit and must be denied, as set

forth more fully below. This case presents a classic example of the long-standing rule that. "in

passing upon the question of the sufficiency or insufficiency of a complaint to state a cause of

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OPPOSITION TO DEMMURER, MEMORANDUM OF POINT AND AUTHORITIES

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action, it is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true

or untrue" as "[t]hat is always the ultimate question to be determined by the evidence upon a trial

of the questions of fact.." (Colm v. Francis (1916) 30 Cal.App. 742, 752.)

2 The content of the March 29, 2012 Complaint speaks for itself. The Defendant continues

to look right at the paragraphs of the document that contain the elements required by law for

each cause of action and to falsely state that the required allegations are not there. Plaintiff relies

upon the Court to read the Complaint and comprehend it independently of the Defendant’s

misrepresentations.

3 Plaintiff alleges the Defendants have filed the original Deed of trust that names other parties,

a defective substitution of trustee, and a notice of default and are trying to finesse the court with

the appearance of proper documentation.

Plaintiff serves upon defendants and their attorneys of record his objection to the defendants

request for judicial notice of the (Exhibit 1 -4 of the Defendants Demurrer). While the official

acts of the recorders office of Santa Clara County, California may be the subject to Judicial

Notice, defendants recording of such acts and the rationale that they proffer in that regard renders

these defective documents inappropriate for judicial notice. There is no foundation as to the

qualifications of the persons making the compilation of the record, and the accuracy of the record

is the subject of plaintiff’s complaint. Without more these are just records of acts from which

nothing can be appropriately deduced, and they appear to be unauthenticated. When the

exhibits presented are contradicted by the allegations the content of the exhibits control over the

allegations, defendant allegations are contradictive.

4 The taking of judicial notice of official acts of a government entity, is not in and of itself

an acceptance of the truth of factual matters, which might be deduced from them. Since in many

instances what is being noticed and thereby established is no more than the existence of the act

and without supporting evidence there can be no factual association from them.

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(Citation) Mangini v. Reynolds tobacco co (1994) 7Cal 4th 1057,1062.)

Cal. Code Civ. Poc., Section 430.10, Subd. (e) The Demurrer is directed to Plaintiffs First

Verified Amended complaint, filed on March 29, 2012.

5 A demurrer must dispose of an entire cause of action to be sustained. (PH II,Inc. v.

Superior Court (1995) 33 Cal.App.4th 1680, its 1682.)

6 The following Memorandum of Points and Authorities in Support of his

Motion for Summary Judgment Against defendant " Deutsche (hereinafter “DNBTC”)

Western Progressive (Hereinafter) Western). Defendants are not proper parties

to take action, on the subject property. Further, Defendants failed to perform

conditions precedent mandated by the original Deed of Trust, Section (24) That

requires a Recorded trustee to file a notice of default with out exception

and to the procedure established by Cal. Civ. Code Sec 2924 thereby cancelling

the performance of Plaintiff, and they failed to assign the deed of Trust as

condition precedent to conducting a foreclosure sale, Defendants can not

prove that the non-judicial foreclosure which occurred, strictly complied with

the tenets of California Civil Code section 2924 the failure to assignee and

negotiate the note resulting in a failed securitization the ineffective

nonjudicial foreclosure in this matter before the bench it becomes pellucidly

clear that several fatal errors occurred, which when weighed together have the

effect of denying Defendants the necessary standing to seek possession.

7 When no or insufficient evidence is submitted to demonstrate the a

material facts in legal absence of issue of material fact the court may treat

motion as in legal effect one for a judgment on the pleadings White v. county

of Orange (1985) 166 Cal App. .3d 566 569.

8 Plaintiff adequately alleges grounds for bringing a quiet title action and “show me

the note” is not the premise of plaintiff’s case, nor does plaintiff rely on

Cal civ. Code of Proc. 2932.5. Plaintiff does not agree with the decisions in

Calvo regarding 2932.5 and does not think the Supreme Court will either.

Legislation is already passed to change the requirement.

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9 Compliance with California Universal Commercial Code cannot be waived merely

because an obligation is owed or a foreclosure may or may not take place. Plaintiff alleges

Legislative codes in California are authored interpreting common law and therefore should work

jointly in suite and not abandon logical coherence in an effort to enumerate regulation.

Jurisprudence would dictate that code also be construed in conjunction with relevant Universal

Commercial Code for applying a due process analysis. Law and precedent should not be a

doctrine under critical legal studies, where the court favors precedent over original meaning. The

natural and legal positivism as in constructive theory should be advanced and is especially

important where the court find the initial process of a precedent was corrupted, by poor

adjudication and application, Stare Decisis should be challenged Sua sponte for the sake of due

process and furtherance of justice.

10 The source of the difficulty is that equity, though just, is not legal justice, but a

rectification of legal justice. The reason for this is that law is always a general statement, yet

there are cases, which it is not possible to cover in a general statement. Aristotle in

Nichomachean Ethics (ca. 325 BC) Book

Statement of the case

11 Plaintiff adequately alleges grounds for bringing a quiet title action cancellation of

instruments (removal of a cloud on title); declaratory relief (declaration of rights under an

agreement or law);

Quit Title

12 The Santa Clara Count Recorders office names Downey Savings & Loan as current and

original lender and beneficiary under the Deed of trust, they have never been replaced by a

recorded interest. Downey saving & loan is currently the recorded lender under the Deed of trust.

13 Plaintiff asserts Deutsche is not a recorded interest, and has not alleged an interest in

plaintiff loan. Defendant’s demurrer to plaintiff VFAC dated 5/28/12 “they do not challenge

plaintiff’s title.” Prg 3 line 20-21. Documents judicially noticed IE: the Plaintiffs Note

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and Deed of trust certified 1/21/12 shows the note has not been endorsed to the trust.

Furthermore, there has been no mortgage assignment recorded or presented to establish

defendant standing as real-party-in-interest. Plaintiff alleges .Lack of proof in the record that the

party making the assignment had the authority to do so, the records do not contain any evidence

of the entire chain of mortgage (Herrera, supra ,196 Cal App . 4th at p. 1375.)

14 The Certified judicially noticed Note and deed of trust confirms a failed attempt at

securitization therefore DBNTC and Western, as a matter of record and a matter of law have no

standing to take action on Plaintiffs property, furthermore is no indication in the public records

of DBNTC authority to act.

15 Plaintiff alleges DBNTC lacked the power to foreclose because it is not the holder of the

underlying promissory note and the sale was void because the foreclosing parties did not have

the authority to proceed as a result of the irregularities in the documentation. As discussed above

Plaintiff alleges any assignment to DBNTC is invalid because they could not receive an

assignment of both the note and its security in any way. DBNTC did not receive a valid

assignment of the debt in any manner (. The note) The certified note and deed judicially noticed

before the court as memorializing the fact that DBNTC did not have the note in any way prior to

the cut off date that enabled the trust to legally acquire any assets or at the foreclosure sale As

more fully discussed below.

Breach of contract action

15 Western progressive LLc Declaring in a recorded statement to have possession of the

note and deed of trust did hereby record an unauthorized notice of default (DOT) against plaintiff

property on 2/21/12. The DOT was recorded prior to Westerns recording of their interest as

required by Cal Civ Code 2934a (a) (1) P The Foreclosure laws in California must be

STRICTLY FOLLOWED or the Foreclosure Sale is Void. We are inclined however, to believe

that with respect to real property the Murphy case was articulating a rule that has been applied in

other jurisdictions. The rule is that a trustee or mortgagee may be liable to the trust or mortgagor

for damages sustained, where there has been an illegal, fraudulent or willfully oppressive sale of

property under a power of sale contained in a mortgage or deed of trust,. this rule of liability is

also applicable in California, we believe, upon the basic principle of tort liability declared in the

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Civil Code that every person is bound by law not to injure the person or property of another or

infringe on any of his rights.” In assessing damages for the wrongful foreclosure, the Munger

Court held: “provides that the measure of damages for a wrong other than breach of contract will

be an amount sufficient to compensate the plaintiff for all detriment, foreseeable or otherwise,

proximately occasioned by the defendant’s wrong.” Civil Code Section 3333

16 In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court, in

calling the notice of default fatally defective stated:

California civil code 2924b (4) (b) 2924 b (4) (c), does not authorize the trustee to record a

notice of default before they have recorded their interest. It merely sets out the protocol for the

substitution of trustee after the previous trustee has filed the notice of default as set out code

itself) 2924 b (4) (c) stating” that a copy of the substitution shall be sent to the trustee then of

record, where 2924b (4) (b) does not contain this language.

2934a (1)(A) says “all beneficiaries” must execute the Substitution of Trustee (the applicable

California law when a lender seeks to substitute the trustee and pursue a foreclosure sale), and

the substitution of trustee document must be RECORDED to be effective, if not, the resulting

sale is VOID.

17 Plaintiff alleges the substitution ion of trustee was fraudulently notarized on 3/19/12

almost a month after the NOD was recorded the substitution was not recorded until almost four

month after the NOD was recorder on 6/13/12

18 Westerns had not perfected their substitution prior to recording the NOD furthermore

their authority comes from entities fraudulently assuming authority to authorize the substitution,

therefore Western lacked authority to record A NOD against plaintiff property.

19 Plaintiff alleges the notice of default is void for the following reasons

20 Plaintiff alleges a false and fraudulent assumption of authority in that a person without

authority signed the Substitution of trustee, 2) the servicer themselves did not have authority to

transfer what they did not have. 3) The substitution was notarized almost a full month after the

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http://law.onecle.com/california/civil/3333.html

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Notice of default was recorded. IE: Western recorded a notice of default although there was no

indication in the public records of Westerns authority to act with respect to the property at the

time.

21 Plaintiff further alleges that the notary public signature on the document is signed by an

individual other than the named notary. IE: The signature is not the signature from the notary

public commission application or the notary signature, card and does not even match the notary

stamp and seal. Plaintiff alleges the power of attorney listed for the substitution of trustee does

not exist or is for another entity other than that of the person signing, furthermore there was no

power of attorney attached to the substitution of trustee. Defective documents purporting to be

the Substitution of trustee, 1st document is the only document notarized and on its face has no

apparent relation ship with plaintiff or plaintiff’s property or the second document in any

manner. The second document purporting to substitute the trustee is not signed or notarized and

has no reference to the entity purporting to authorize the substitution, no reference to the first

document IE: there is no reference on either document that would tie them together, therefore the

document is paramount to hearsay and is void and ineffective to substitute a trustee

Conversion

22 Personal property is the subject of conversion if it is of a tangible nature or if it is

tangible evidence of title to intangible or real property, when an intangible obligation is

represented by the document, which is regarded as equivalent to the obligation. The property

affected must be some personal chattel and it has been decided that trover lies for title deeds and

for a copy of a record. Defendant, DBNTC exercised an illegal assumption of ownership over

plaintiff’s promissory note when they restricted plaintiff right to seek relief from his loan

servicer; the exercise of restriction over plaintiff’s servicer was a dominion over his title.

23 Plaintiff’s allegations are Conversion of intangible rights of a negotiable instrument merged

with real property. This conversion involves restrictions and or a dominion placed over

plaintiffs’ interest in a negotiable instrument by DNBTC. DBNTC strictly prohibited plaintiff

from loan modifications, Forbid plaintiffs loan servicer from implementing a HAMP loan

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modification, when Plaintiff was determined eligible. DBNTC forced restriction and dominion

over plaintiff’s promissory note in their act of restricting plaintiff’s loan servicer from modifying

plaintiff’s note per a pooling and service agreement this constituted a Conversion of intangible

rights of a negotiable instrument merged with real property.

Tender

24 Plaintiff’s first cause of action is to quiet title. Defendants argue that because plaintiff

has failed to tender payment of what is owed on his loan, this cause of action must fail. Plaintiff

argues that he falls within recently recognized exceptions to the tender rule. Lona v. Citibank,

N.A. (2011) 202 Cal.App.4th 89, 112. Here, as in Lona, plaintiff challenges the validity of the

underlying debt.

Plaintiff need not allege tender where they allege fraud with respect to defendants’’ asserted title

in the subject property"Equity does not wait upon precedent which exactly squares with the facts in controversy, but will

assert itself in those situations where right and justice would be defeated but for its intervention."

Bisno v. Sax (1959) 175 Cal. App. 2d 714, 728. Therefore, the tender rule does not apply.

25 there is no valid recorded substitution of Trustee before the Notice of default is filed then

the resulting foreclosure is VOID, and there is no obligation under California law to “ tender” the

loan balance to set aside the sale based on this technical violation and defendants failure to

strictly comply with 2934a(1)(A). Again, California courts have spoken loud and clear on this

issue. If a Substitution of Trustee is not valid, the resulting sale is VOID with no requirement for

“tender”. See Dimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000), fully discussed

below Prejudicial to the Plaintiffs interest.

26 Plaintiff alleges the original lender would have refrained from foreclosure under the

circumstanced presented and that they would suffer the unauthorized loss of the subject

promissory note.

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27 Plaintiffs allege that they were not in default, by the four corners interpretation of their

mortgage contract. The deed of trust section 23 page 13 of the deed of trust, and that the

purported irregularities and securitization restriction place on plaintiff by defendant DBNTC,

caused their inability to pay off the debt, and that multiple entities claiming to be the rightful

beneficiary or trustee caused confusion in the process.

28 Plaintiff alleges,” the initiation of foreclosure proceedings put the plaintiff’s interest in

his property sufficiently in jeopardy to allege an injury under section 17200…” (Rosenfeld v.

JPMorgan Chase Bank, N.A. (N.D.Cal. 2010) 732 F.Supp.2d 952, 973, citing Sullivan v. Wash.

Mut. Bank, FA (N.D.Cal. 2009) 2009 WL 3458300; see also Rabb v. BNC Mortgage, Inc.

(C.D.Cal. 2009) 2009 WL 3045812.)

DNBTC STANDING

NO GRANTOR/GRANTEE NAMES FOUND under the trustee deed in the Santa Clara

County Records

Quiet title is an appropriate remedy when a stranger publishes a Notice of Trustee's Sale and

declares that he will sell Plaintiffs home in less than a month. The right of sale provided by the

deed of trust is an interest in real property as stipulated in UCC Green point Mortg. Funding,Inc.,

2009 WL 2880393, *9 (E.D.Cal. 2009). The Cal. Code Civ. Procedure § 760.010(a) provides

that a lien may properly be the subject of a quiet title action. Yulaeva v. Greenpoint Mortg.

Funding, Inc., 2009 WL 2880393, *9.

29 Plaintiff argues the defendants do not have standing and are strangers to the mortgage

contract and to the county recorder office. This issue presented to the court is about standing,

Plaintiff challenges defendant standing to bring the tender issue, standing refers to a person legal

right in a judicial forum it may be raised as an issue at any stage of the judicial process by any

party or by the court Sue sponte.

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30 To commence a foreclosure one needs to demonstrate it has a right to enforce the note

and absent a showing of ownership one lacks standing. Being a person entitled to enforce the

note is an essential requirement to initiate a foreclosure.

31 Plaintiff alleges the certified document before the court is above reproach and from

resource that cannot reasonable be questioned. Plaintiff alleges and asserts the certified

documents are irrefutable evidence to DBNTC failure to securitize and evidences DBNTC lack

of standing. Plaintiff believes, a reasonable person could come to no other conclusion that in this

instant case e there is a no question of fact as to the failed securitization or lack of standing of

Defendants. DBNTC and Western because of the certified documents and unconscionable

conduct of defendant this Deed of trust is a nullity and quiet title is the remedy to that nullity.

32 Plaintiff alleges that the purported assignment did not comply with the timing

requirements of the trust documents, challenges DBNTC standing too based on attacking the

assignment as not complying with the trust documents.

33 The Santa Clara Count Recorders office names Downey Savings & Loan as current and

original lender and beneficiary under the Deed of trust, they have never been replaced by a

recorded interest. Downey saving & loan is currently the recorded lender under the Deed of trust.

Civil Code of Procedure 770.020 is appropriate to bring this action.

34 Plaintiff alleges DBNTC is not recorded interest, has not alleged an interest in plaintiff

loan. Defendant’s demurrer to plaintiff VFAC dated 5/28/12 “they do not challenge plaintiff’s

title.” Page 4 Prg 3 line 20-21. Plaintiff alleges documents judicially noticed IE: the Plaintiffs

Note and Deed of trust certified 1/21/12 shows the note has not been endorsed to the trust.

Furthermore, it shows there has been no mortgage assignment recorded or presented to establish

defendant standing as real-party-in-interest. Plaintiff alleges .Lack of proof in the record that the

party making the assignment had the authority to do so, the records do not contain evidence of

the entire chain of mortgage (Herrera, supra ,196 Cal App . 4th at p. 1375.)

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35 Plaintiff alleges the Certified judicially noticed Note and deed of trust confirms a failed

attempt at securitization therefore DBNTC and Western, as a matter of record and a matter of

law have no standing to take action on Plaintiffs property, furthermore there is no indication in

the public records of DBNTC authority to act.

36 Plaintiff alleges DBNTC lacked the power to foreclose because it is not the holder of the

underlying promissory note and the sale was void because the foreclosing parties did not have

the authority to proceed as a result of the irregularities in the documentation. As discussed above

Plaintiff alleges any assignment to DBNTC is invalid because they could not receive an

assignment of both the note and its security DBNTC did not receive a valid assignment of the

debt in any manner and the note IE the certified note and deed judicially noticed before the court

is proof of this fact. The Santa Clara Count Recorders office names Downey Savings & Loan as

current and original lender and beneficiary under the Deed of trust, they have never been

replaced by a recorded interest. Downey saving & loan is currently the recorded lender under the

Deed of trust.

37 Plaintiff asserts Deutsche is not a recorded interest, and has not alleged an interest in

plaintiff loan. Defendant’s demurrer to plaintiff VFAC dated 5/28/12 “they do not challenge

plaintiff’s title.” Page 4 line 20-21. Documents judicially noticed IE: the Plaintiffs Note and

Deed of trust certified 1/21/12 shows the note has not been endorsed to the trust. Furthermore,

there has been no mortgage assignment recorded or presented to establish defendant standing as

real-party-in-interest. Plaintiff alleges .Lack of proof in the record that the party making the

assignment had the authority to do so; the records do not contain evidence of the entire chain of

mortgage

(Herrera, supra ,196 Cal App . 4th at p. 1375.)

38 The Certified judicially noticed Note and deed of trust confirms a failed attempt at

securitization therefore DBNTC and Western, as a matter of record and a matter of law have no

standing to take action on Plaintiffs property, furthermore is no indication in the public records

of DBNTC authority to act. The Santa Clara Count Recorders office names Downey Savings &

Loan as current and original lender and beneficiary under the Deed of trust, they have never been

replaced by a recorded interest. Downey saving & loan is currently the recorded lender under the

Deed of trust. Civil Code of Procedure 770.020 is appropriate to request adjudication.

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39 In addition to authenticating the note DBNTC must show its entitled to enforce the note

only the holder of a negotiable promissory note (with minor exceptions not relevant in this

case)is entitled to enforce the note see Cal. Com. Code $3301. The holder enforces the note by

making a demand for payment See id. 3501(a) the person making a demand shows its right to

enforcement by showing the original note. See Id. 3501(b)(2) There is no evidence before the

court the court who is the owner of the promissory note and is entitled to enforce it DBNTC does

not purport to be the owner of the promissory note Plaintiff alleges the transfer must be proven

up to allow enforcement, or “ownership” must be demonstrated. The Veal loan was not

transferred to the Option One trust effective October 13, 2009, as represented on the Assignment.

Nemo dat quod non-habit

in Veal v. American Home Mortgage Servicing, BAP No. AZ-10-1055-MkKiJu. Plaintiff alleges

this did not occur The Depositor has no other functions, so it needs no more than a handful of

employees and officers. Nevertheless, it is essential for the “true sale” and “bankruptcy-

remote”/“FDIC-remote” analysis that the Depositor maintains its own corporate existence

separate from the Sponsor and the Trust and observes the formalities of this corporate

separateness at all times. The “Elephant in the Room” in all structured financial transactions is

the mandatory requirement to create at least two “true sales” of the notes and mortgages between

the Originator and the Trustee for the Trust so as to make the assets of the Trust both

“bankruptcy” and “FDIC” remote from the originator. These, “true sales” will be documented

by, representations and attestations signed by the parties.and by attorney opinion letters; by asset

purchase and sale agreements; by proof of adequate and reasonably equivalent consideration for

each purchase; by “true sale” reports from the three major “ratings agencies,” (Standard & Poors,

Moody’s, and Fitch), and by transfer and delivery receipts for mortgage notes endorsed in blank..

40 Plaintiff alleges that the foreclosing defendants “did not receive a valid assignment of the

debt in any manner.” Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 272, Plaintiff

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alleges that the assignment of the deed of trust was void because it was not completed by the date

required under the Pooling and Servicing Agreement (PSA) governing the transfer of the loan to

the trust. ,

41 Plaintive asserts there are documents before the court that demonstrate DBNTC could

not have taken possession of or was transferred plaintiffs promissory note in any way by the

closing of Harbor View Mortgage backed Loan trust 2007-7 (hereafter HVMLT-2007-7. These

documents would lead a reasonable person to the only viable conclusion, That US Bank had

plaintiffs note on 1/21/10 from that note US Bank certified a copy; the note shows no evidence

of movement. Plaintiff alleges these facts prove beyond a reasonable doubt that the note was not

negotiated transferred or in possession of DBNTC by the closing of HVMLT-2007-7 and

therefore the securitization of plaintiff note failed. 42 Plaintiff alleges these transfer and assignments did not occur : The Depositor has no

other functions, so it needs no more than a handful of employees and officers. Nevertheless, it is

essential for the “true sale” and “bankruptcy-remote”/“FDIC-remote” analysis that the Depositor

maintains its own corporate existence separate from the Sponsor and the Trust and observes the

formalities of this corporate separateness at all times. The “Elephant in the Room” in all

structured financial transactions is the mandatory requirement to create at least two “true sales”

of the notes and mortgages between the Originator and the Trustee for the Trust so as to make

the assets of the Trust both “bankruptcy” and “FDIC” remote from the originator. These “true

sales” will be documented by representations and attestations signed by the parties; by attorney

opinion letters; by asset purchase and sale agreements; by proof of adequate and reasonably

equivalent consideration for each purchase; by “true sale” reports from the three major “ratings

agencies” (Standard & Poors, Moody’s, and Fitch) and by transfer and delivery receipts for

mortgage notes endorsed in blank.

Defendents

Attested and Certified true and exact copy of the original promissory note certified on 2/21/12

Plaintiffs judicially noticed exhibit 1

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Attested and Certified copy of a certified copy of the true and exact original Deed of trust

Certified on 2/2112 Defendents judicially noticed exhibit 2

43 The concept of a “holder” is set out in detail in UCC § 1-201(b)(21)(A), providing that a

person is a holder if the person possesses the note and either (i) the note has been made payable

to the person who has it in his possession or (ii) the note is payable to the bearer of the note. This

determination requires physical examination not only of the face of the note but also of any

endorsements.

44 Under the common law generally, the transfer of a mortgage without the transfer of the

obligation it secures renders the mortgage ineffective and unenforceable in the hands of the

transferee. Restatement (Third) of Property (Mortgages) § 5.4 cmt. e (1997) (“in general a

mortgage is unenforceable if it is held by one who has no right to enforce the secured

obligation”)

45 As stated in a leading real property treatise: When a note is split from a deed of trust “the

note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgage) §

5.4 cmt. a (1997). Additionally, if the deed of trust was assigned without the note, then the

assignee, “having no interest in the underlying debt or obligation, has a worthless piece of

paper.” Plaintiff request that the DOT DBNTCb is using to allege authority should be destroyed.

To show a colorable claim against the Property, DBNTC had to show that either it had some

interest in the Note, as a holder, or as some other “person entitled to enforce,” or as that it was

someone who held some ownership or other interest in the Note. See In re Hwang, 438 B.R. 661,

665 (C.D. Cal. 2010) (finding that holder of note has real party in interest status). None of the

exhibits attached to DBNTC papers, however, establish its status as the holder, as a “person

entitled to enforce,” or as an entity with any ownership or other interest in the Note.

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46 There is no reason the court should ignore the meaning of certified, Plaintiff received

plaintiffs Attested and Certified to be a true and exact copy of the original promissory note, from

the custodian of record of plaintiff primary loan servicer. US Bank bought Downey saving from

receivership under the FDIC. Plaintiff original Promissory note was held in Downey savings

records years after the purported sale into securitization. There is no assignment, attached alonge

and no evidence of movement.

47 Plaintiff alleges this is prima facie evidence that the note never left Downey Savings

possession. The promissory note was not assigned or negotiated to DBNTC, even if DBNTC

acquired the note today DBNTC it would not have standing for HVMLT 2007-7 to foreclose on

plaintiff because they would not be able to accept the note as an asset according to the

documents that created DBNTC and gives DBNTC its power, the pooling, and service agreement

and the rules of the Internal revenue services REMIC laws that set the guild lines for the trust.

Holding would not cure standing.

48 Plaintiff alleges the chain of title is irretrievably broken, and a separation of note from the

Deed of trust has also occurred and is evidenced by plaintiffs request for judicial notice of the

NOTE and DOT certified by VP U.S. Bank. As further explain herein the DOT was a certified

from copy of a certified copy, the note was certified from the original document. A reasonable

person could come to no other conclusion, the DOT and NOTE have been separated, and

otherwise they would both be certified from the originals. Instead of the DOT is certified from a

certified copy. " a transfer of the mortgage without the debt is a nullity, and no interest is

acquired by it.

- in Bank of NY v. Silverberg, 2011

Such a mortgage has no separate existence, and when the note is paid the mortgage expires, as it

cannot survive the debt which the note represents.

- in Nat'l Live Stock Bank v. First Nat'l Bank, 1906

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As the United States Supreme Court so clearly explained approximately 140 years ago: The note

and mortgage are inseparable; the former as essential

- in McCarthy v. Bank of America, NA, 2011

Here there is a reference to a statement from the US Supreme Court that the debt is the principal

and the mortgage is the accessory. In Accessoriness and Security over Land March 31, 2009

University of Edinburgh - School of Law U. of Edinburgh School of Law Working Paper No.

2009/07. That a mortgage was such an incident to the note, which it was given to the maker to

secure that it passed, without assignment, to the bona fide endorsee of the note for value, as free

from equities as the note itself. - in The Federal reporter: cases argued and determined in the

circuit. Bifurcation and splitting of the not as reference in Plaintiff VFAC page 19

49 Plaintiff alleges ,DNBTC has offered no proof of assignment, no proof that DBNTC has

in fact obtained physical possession of the original note from Downey savings either voluntarily

or otherwise Under the U. C. C. requirements, DBNTC has therefore failed to show it is the

current holder of the note. Because DBNTC has failed to prove transfer of possession of the

original note it has failed to establish its status as a transferee.

50 Plaintiff claims that Neither Western or DBNTC had authority to initiate the foreclosure

sale at the time the notice of default was recorded. Under Cal Civ. code 2924(a)(1) the trustee

mortgagee. Or beneficiary or any of their authorized agents are authorized to file a notice of

default. Documents provided for judicial notice by defendant and plaintiff do not support a

finding that either DBNTC was the beneficiary or Western progressive was the trustee on

February 21 2012 when the notice of default was recorded. It is well settled that document

judicially noticed or from sources that cannot reasonably be questioned are governing when a

conflict occurs between statements and judicially noticed exhibits. Further more there is no

assignment to the entity purchasing the note prior to the failed securitization process this is

evidence that the chain of title is irretrievably broken and securitization fail has occurred,

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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1371139#%23

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1371139#%23

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1371139


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51 California is a first in state and Downey savings is the only beneficiary of record in the Santa

Clara county recorders office, as such Downey would be the only legal authority authorized

entity to request a NOD, as specified in plaintiff’s mortgage contract. To be legally entitled to

initiate and instruct the duly recorded trustee under the DOT. To request a NOD to be recorded

by the trustee in said Dot you must be the holder lender or beneficiary under the deed of trust and

note. Plaintiffs Deed of trust and Promissory note the governing bodies in this case.

52 Courts here and in other jurisdictions are now responding to the foreclosure crisis by

developing a body of case law recognizing borrowers' rights to assert claims to ensure that they

only pay the right parties In Ohlendorf v. Amer. Home Mort. Servicing, (E.D. Cal. 2010) 2010

WL 31098, the court, applying California law, ruled that non-judicial foreclosure proceedings

can only be instituted by parties who can "prove that they have the right to foreclose." In Kemp,

a bank that bought a note and mortgage as trustee under a pooling and servicing agreement, but

never had possession of note, could not enforce the note, and neither could its servicer. Note

Holder” definition: “who takes this Note by transfer AND”THIS added phrase implicates UCC-9

(see In Re Veal). Either the transfer must be proven up to allow enforcement, or “ownership”

must be demonstrated. If you think about it, it’s the same thing.

Saxon Mortgage v. Hillery, Case No. C-08-4357 Edward M. Chen, U.S. Magistrate, Northern District of California

Hillery obtained a home loan from New Century secured by a Deed of Trust, which named

MERS as nominee for New Century and its successors. MERS later attempted to assign the Deed

of Trust and the promissory note to Consumer. Consumer and the loan servicer then sued

Hillery. The court ruled that Consumer must demonstrate that it is the holder of the deed of trust

and the promissory note. In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007) held

that to show standing in a foreclosure action, the plaintiff must show that it is the holder of the

note and the mortgage at the time the complaint was filed. For there to be a valid assignment,

there must be more than just assignment of the deed alone; the note must also be assigned. "The

note and mortgage are inseparable; the former as essential, the latter as an incident...an

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assignment of the note carries the mortgage with it, while an assignment of the latter alone is a

nullity." Carpenter v. Longan, 83 U.S. 271, 274 (1872).

There is no evidence t DBNTC held the promissory note or was given the authority by Downey

to assign the note to Western. Without the note DBNTC lacked standing. If DBNTC did not have

standing, then Western also lacked standing. An entity cannot bring an action without the holder

of the note. In re Hwang, 393 B.R. 7 01, 712 (2008).

53 Plaintiff alleges that the chain of title is irretrievably broken; DBNTC never obtained a

valid assignment of the subject note and deed of trust from the original lender. Defendants have

not persuasively argued why, if these allegations are proved to be true, plaintiff should not be

able to dispute the defendants' claim to a security interest in plaintiff's real property. "The vital

allegation in this case is the assignment of the loan into the HMLT-2007-77 was not completed

as required by the Trust Agreement. This allegation gives rise to a plausible inference that the

subsequent assignment, substitution, and notice of default and election to sell would be improper

and void. Defendants wholly fail to address that issue. This reason alone is sufficient to deny

Defendants' motion with respect to this issue.

. Naranjo v. SBMC Mortgage, 2012 U.S. Dist. LEXIS 103735, Case No. 11-cv-2229-L(WVG)

M. James Lorenz, District Judge, U.S. District Court, Southern District of California Deborah

Gutierrez, Penelope Bergman, Los Angeles, CA, attorneys for Carmen Naranjo ." "The vital

allegation in this case is the assignment of the loan into the loan trust was not completed by May

30, 2006 as required by the Trust Agreement. This allegation gives rise to a plausible inference

that the subsequent assignment, substitution, and notice of default and election to sell may also

be improper. Defendants fail to address that issue. This reason alone is sufficient to deny

Defendants' motion with respect to this issue.

CHAIN OF TITLE

54 Plaintiff argues that the process of “securitizing” that loan was not carried out according

to the required procedures, and that is because the loan was improperly securitized, the Deed of

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Trust can no longer be enforced. Based on these two sets of alleged wrongs, plaintiff asserts a

quite title cause of action against DBNTC and Western as trustee.

55 Specifically, Plaintiff argues that there is documentation before the court by resort to

sources whose accuracy cannot reasonably be questioned" The true exact certified copy of

plaintiffs original note certified by US Bank VP of mortgage compliance dated January 22

2010 three years after the closing date of HMLT 2007-7. The Trust fraudulently claims title to

Plaintiff Promissory note (note) and Deed of trust (DOT) and did not take physical possession

thereof and therefore have no standing and no physical delivery of the note. Defendants never

obtained a valid assignment of the subject note and deed of trust from the original lender and in

any way, therefore the trustee is unable to accept assets into the trust under the Internal revenues

services Laws Of REMIC “real estate mortgage investment conduit” or the pooling and Service

agreement that created the trust that gives the trustee the restriction The PSA will not allow

acceptance of assets after the closing date of the trust. Irrefutable evidence that the defendant

DBNTC cannot be the holder or the trustee of plaintiff’s Promissory note and that plaintiff is not

indebted to DBNTC because they do not own the promissory note and did not have authority to

appoint Western Progressive as substitute trustees and, as a result, Western Progressive lacks

standing to foreclose on plaintiff’s property. DBNTC does not have a valid chain of title

transferring ownership of the Note from the original lender to the aggregator to the depositor

then to DBNTC as trustee... Evidenced by the certified documents before the court, the Note is a

certified copy of the original and the DOT is a certified copy of a certified copy this is not

conjecture or conclusion it is a certified fact before the court.

56 The certified fact of the matter is US Bank would not have sent a cop of a copy if they

had the original as with the promissory note is original copy of the DOT and US Bank would not

have sent a certified copy of a certified copy had they had the original. Whether DBNTC is in

possession of the DOT is irrelevant the DOT follows the Note and it is a certified fact DBNTC

did not have the note in the time line where they were legally able to accept it as an asset.

reasonable people could not reach different conclusions , reasonable people would conclude t the

DOT and Note are separated not mere speculation but a certified fact before the court and the

debt is unsecured and the note is no longer secured by the DOT so the DOT is void. Defendants

wholly fail to address that issue. This reason alone is sufficient to deny defendants demurrer with

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respect to this issue. . Plaintiff alleges given the certified copies before the court, for judicial

notice that any assignment that would be presented or any alonge presented at this late date will

be wholly fraudulent, fabricated and fraud a brought before the court. Under the common law

generally, the transfer of a mortgage without the transfer of the obligation it secures renders the

mortgage ineffective and unenforceable in the hands of the transferee. Restatement (Third) of

Property (Mortgages) § 5.4 cmt. e (1997) (“in general a mortgage is unenforceable if it is held by

one who has no right to enforce the secured obligation”)

56 As stated in a leading real property treatise: When a note is split from a deed of trust “the

note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgage) §

5.4 cmt. a (1997). Additionally, if the deed of trust was assigned without the note, then the

assignee, “having no interest in the underlying debt or obligation, has a worthless piece of

paper.” the law is very specific here. The Promissory note as well as the Deed 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, therefore according to the

Santa Clara county recorders office the chain of title is undecipherable.

57 Perfection of Chain of Title: In January 2011, Mass Supreme Court issued a decision in

US BANK NATIONAL ASSOCIATION VS ANTONIO IBANEZ in which all the justices’

unanimously agreed. In order for the bank to be able to foreclose, they must show a perfection of

chain of title both in the deed of trust /mortgage and in the promissory note. It was also ruled that

a blank assignment was not acceptable proof of perfection of title for the promissory note.

58 Mortgagors have standing wherever they allege facts indicating that financial institutions

are imposters who are not entitled to demand or collect payments on plaintiffs' mortgage. Such

facts may include the absence of endorsements evidencing transfers of the borrower's deed of

trust and mortgage note required by applicable state law” as in this instant case evidenced by the

certified copies of the DOT and NOTE” , under the PSA., The lack of endorsements is evidence

that the borrowers' documents were never properly transferred to the REMIC that was supposed

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to hold them in accordance with the strictures of the PSA and the law of the state selected in the

PSA's choice-of-law clause, most often New York. is evidence of securitization fail.

59 In late September, a federal court in Los Angeles ruled that borrowers state a claim under

the Declaratory Judgment Act, 22 U.S.C. Sections 2201, et seq., where they seek to determine

whether their servicer has authority to demand and collect monthly mortgage payments, given

the servicer's ostensible role as agent for a REMIC whose trustee allegedly never received the

mortgage note, and its failure to respond to the homeowners' demand that it produce evidence

that the REMIC received an assignment of the mortgage note.

See Mata v. Citi mortgage etc. et al., CV 10-9167 DSF (PLAx) (C.D. Cal., Sept. 26, 2011) . As

the Mata court noted, established California law holds that the burden of proving an assignment

falls on the servicer and investor asserting rights under the assignment. Strangers” to the Deed of

Trust Purporting to Be Beneficiaries: the entity that is claiming to be the Beneficiary of the Deed

of Trust when that entity is not the original Beneficiary and either (1) no Assignment of the Deed

of Trust was ever recorded granting a beneficial interest to that entity or in other words, a

"stranger" to the Deed of Trust purported to be the foreclosing Beneficiary of the subject

Property. This entity was not the original Beneficiary of the Deed of Trust and no assignment of

the Deed of Trust has been recorded assigning the beneficial interests of the Deed of Trust. This

is an issue without proof of the ownership of the beneficial interests in the Deed of Trust, to this

entity. How can there be good title to the subject property when an unauthorized “stranger is able

to take action on a deed of trust. The fact that an Assignment of the Deed of Trust was never

recorded indicates that the chain of title for the subject loan cannot be established. Further, only

beneficiaries have the right to initiate foreclosure.

60 The California foreclosure statutes state that only the Beneficiary of the Deed of Trust

can make a credit bid at a foreclosure auction. Without proof of the ownership of the beneficial

interests in the Deed of Trust, DBNTC was granted ownership of the subject property does not

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have good title to the property and the Trustee's Sale is unauthorized to a “stranger” and the deed

is invalid. The fact that an Assignment of the Deed of Trust was never recorded indicates that the

chain of title in this instant case cannot be established, the chain of title is irreparably broken.

61 Plaintiff requests that the Court “make a finding and issue appropriate orders stating that

none of the named Defendants have any right or interest in Plaintiff’s Note, Deed of Trust, or the

Property which authorizes DBNTC to collect Plaintiff’s mortgage payments or enforce the terms

of the Note or Deed of Trust in any manner whatsoever.” (Plaintiff’s alleges there is a cloud on

his title does not constitute an allegation of loss of money or property, and even Plaintiff alleges

damages resulting from Defendants’ collection of payments that they purportedly did not have

the legal right to collect. These injuries are monetary, but also may result in the loss of Plaintiff’s

property. Furthermore, these injuries are connected to Defendants’ conduct. Thus, Plaintiff has

standing to pursue a unclean hands claim against Defendants Deutsche Bank. National Trust Co.

v. Ramotar, (N.Y. Sup. 2011) 2011 WL 66041, held that allegation of robo-signing and other

concerns about the bank's standing were sufficient to raise triable issues of fact.

Failed securitization

62 Plaintiff’s primary contention is that DBNTC failed to securitize plaintiffs loan and

“are not plaintiffs true creditors and as such have no legal, equitable, or pecuniary right in this

debt obligation” in the loan..) Plaintiff contends that her promissory note and DOT were never

properly assigned to the HVMLT-2007-7 because the entities involved in the attempted transfer

failed to adhere to the requirements set forth in the Trust Agreement and thus the note and DOT

are not a part of the trust Downey sold plaintiffs loan to a currently unknown entity or entities.

Plaintiff alleges that these unknown entities and Defendants were involved in an attempt to

securitize the loan into the Harbor View Mortgage backed Loan trust 2007-7 hereafter HVMLT-

2007-7 ). However, these entities involved in the attempted securitization of the loan “failed to

adhere to the requirements of the Trust Agreement.

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63 A proper statutory standing analysis under 362(d): Plaintiff presents the merits

concerning defendants standing and the insufficiency of DBNTC showing concerning standing.

This is a legal issue in this case .and DBNTC has failed to demonstrate its standing as a party in

interest, noting the details surrounding the assignment to Deutsche are not part of the record.

The records submitted do not contain a copy of the note much less the original. Defendant

demurrer gives no statements discussing the adequacy of proof that DBNTC was in possession of

the original note and legal consequences thereof instead DBNTC relies on the tender requirement

as their sole defense.

64 Plaintiff alleges that the transfer of rights to the HVMLT-2007 is improper, thus

Defendants consequently lack the legal right to either collect on the debt or enforce the

underlying security interest. The vital allegation in this case is the assignment of the loan into

HVMLT-2007-7 was not completed by 10-30-2007 as required by the Trust Agreement. This

allegation gives rise to a plausible inference that the subsequent assignment, substitution, and

notice of default and election to sell may also be improper. Defendants wholly fail to address that

issue. This reason alone is sufficient to deny Defendants’ motion with respect to this issue.

65 Plaintiff states that the failure to assign the loan in the manner and timing set forth in the

“trust document” that the note and Deed of trust are not part of the trust and therefore the trustee

had no basis for asserting ownership, much less the right to enforce. [plus the fact that no

financial transaction occurred]

66 Plaintiff alleges the loan purported to be “sold” prior to the “alleged failed attempt at

securitization” to “currently unknown entity or entities.” This implicitly raises the question of

whether the loan was in fact actually sold more than once, and if so, to whom, for how much,

and raises the issues of whom Plaintiff was to direct their payments and whether the actual

creditor was receiving the money that Plaintiff paid.

67 The property was sold at auction to an entity that is claiming to be the beneficiary of the

deed of trust when that entity is not the original beneficiary and no assignment of the deed of

trust was ever recorded granting beneficial interest to that entity. Furthermore, there are no

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assignments to entities purporting to purchase plaintiffs property prior to securitization. Plaintiff

alleges this is evidence that the chain of title is irretrievably broken. These are facts confirmed by

the Santa Clara County recorders office. If the loan was securitized as defendants allege, prior to

the loan being placed in the defendants trust their would be several key sales involved before

the note being deposited with DBNTC, then by their own admissions and the documents

recorded at the Santa Clara county recorders office the chain of title cannot be established..

68 Is DBNTC a creditor of Plaintiffs with standing to receive payments from plaintiff? The

note in this instant case is payable to the order of lender: Downey s Savings, the U.C.C.

identifies the requirements for the “negotiation “of a note. The statue provides that if an

instrument is payable to an identified person, negotiation requires transfer of possession of the

instrument and its endorsement by the holder. U.C.C. 3-201 this official commentary to section

3-201 explains that negotiation “always requires change in possession of the instrument because

nobody can be a holder without possessing the instrument, either directly or through an agent. In

this case, , Physical possession is essential because it constitutes proof of ownership and

consequent right to payment.

60 Plaintiff further alleges that because of the failed attempt at securitization or the act of

attempting to securitization plaintiffs note, the original promissory note and deed of trust no

longer existed and the Bank's deed was invalid "as it is based solely upon purported copies which

have no force and effect." (Evid. Code, § 1271, subd. (d).)5

70 Plaintiff alleges that No timely or legal assignment to this entity has been done in the

land Title records to assign the mortgage. HVMLT -2007 "MBS" is formed under NEW YORK

Trust laws. As Such a Trust functioning under No corporate seal every mortgage assignments

into the [HMLT-2007] are required by the law to be publicly recorded in the County where the

property is located [Santa Clara County’s the case at bar]. It is to include an assignment in the

name of the "Trust" ["DBNTC HVMLT 2007. Under the pooling and servicing agreement dated

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7-10-2007 Plaintiff's "Deed of Trust Assignment" would have had to have been recorded under

the name of the trust in 2007 publicly recorded in the year 2007 and then physical delivered to

DBNTC for the trust to obtain any ownership rights. Under New York statutory law, any action

undertaken by a trust that is not within the authorized powers of a trust is void. In the context of

mortgage securitization trusts, the trust agreements ("Pooling and Service agreement (PSA")

expressly limits the trustees' authority to adherence with the provisions of the I.R.S. R.E.M.I.C.

Code, mortgage securitization trusts are not authorized to operate in violation of the I.R.S.

R.E.M.I.C. Code. A "qualified replacement mortgage" must be traded for a defective obligation

and may not be conducted more than two years after the startup date. U.S.C. 860G (a)(4)(B)(ii)

(2006). As "Trustee" for the Issuing Entity, "DBNTC." lacked the power to acquire or take

assignment of any mortgage outside of the 3-month period following the "REMIC Cut-Off Date"

of October 2007.

71 Plaintiff’s alleges his mortgage that was purportedly sold to DBNTC, would be

prohibited by Rules of REMIC and by the DBNTC . The PSA the trustee’s deed is void because

the trustee is prohibited from acquiring assets and the servicer would be the entity authorized to

acquire the asset only have been acquired by the servicer for sale and paid out when the trust

ends. Plaintiff also understand in Deutsche V. FDIC Case 1:09-cv-01656-RMC Document

55-1 Filed 11/22/10 that v DBNTC claim under oath that the loans sold into

securitization are sold without recourse meaning they are no longer secured , taker that

to the bank. Or negotiable.

Breach of a contract

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72 DBNTC if they had received plaintiff written mortgage contract for into the trust

would have been legally liable to follow they would be obligated to the contract.

73 Plaintiff alleges that DBNTC is not a beneficiary lender or trustee therefore DBNTC is

not authorized to substitute western as the trustee and to reco0rde a NOD, furthermore Western

claims to be the unrecorded trustee.

Defective notice of default74 Take notice of the “The Notice of default “filed on February 21, 2012. The notice of

default “The second page sixth paragraph Western provides a declaration stating they have been

issued the DOT and NOTE specifically in part” that by Reason thereof the beneficiary under the

deed of trust has executed and delivered to said duly appointed trustee, a written declaration of

default and demand for sale,

75 Plaintiff asserts that this is Westerns declaration that they are the unrecorded duly

appointed Trustee now recording a notice default; prior to the requirement of recording their

interest. this is in fact a declaration as stated, and is self impeaching. A reasonable person could

come to no other conclusion other than a Notice of default was recorded by the duly appointed

trustee prior to effecting their interest and prior to recording that interest. By the strictures of

California code 2934a and plaintiff mortgage contract, this is a fatally defective. The NOD in

this instant case is fatally defective therefore; the NOD, NTS, and trustee sale are invalid.

80 2934 (a)(d)(C) of the California civil code does not state that a trustee can initiate a

foreclosure when they are not yet the recorded trustee” this piece of legislature simply allows for

the substitution after the NOD and assumes that the original trustee of record initiated the

foreclosure. Western progressive role is intentionally misleading in that their use of use language

contained in the notice of default claiming that they are either the original trustee, the duly

appointed trustee or acting as an agent for the trustee or beneficiary. When in fact Western

Progressive is the only entity fully disclosed on the NOD and the beneficiary, under the deed of

trust has executed and assigned to said duly appointed trustee, a written declaration of default

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that by definition defines them as the unrecorded trustee. As a result, the deceptive business act

is an invalid notice of default and invalid substitution of trustee.

81 Defendant Western has breached the plaintiff written mortgage contract, when they

declared and purported that the beneficiary under the deed of trust had transferred the to the

duly appointed trustee the note and deed and the election to sell. Three weeks after the Nod Is

recorded Western causes to be notarized a substituting of trustee into their name.

Western had not properly substituted the then current trustee before they took action on a deed of

trust with out affecting their rights.

Take. When Western made the declaration, they were legally required to rerecord their interest

either prior or concurrently with the NOD. Recording an NOD before getting a proper

assignment notarized and preferably recorded they in not they violated plaintiffs mortgage

contract and California’s civil code 2934a 2924b defendants violated Civil Code section 2934

because there cannot be two trustees with a power of sale at the same time.

82 Western progressive LLc Declaring in a recorded statement to have possession of the

note and deed of trust which by law makes western the duly appointed unrecorded unperfected

nominal holder trustee did hereby record an unauthorized notice of default against plaintiff

property on 2/21/12. And was recorded prior to recording their interest as required.

83 Plaintiff alleges he is entitled to cancellation of the trustee’s deed upon sale because

defendants Western wrongfully foreclosed.; DSL cal Service corp. was not properly substituted

as trustee, thus rendering the sale in violation of Civil Code section 3934; and plaintiff has

adequately alleged claims for breach of contract based upon Cal Civ Code 2934a (a) (1).

84 The Foreclosure laws in California must be STRICTLY FOLLOWED or the

Foreclosure Sale is Void Western progressive LLc claiming to have possession of the note and

deed of trust filed a notice of default on 2/21/12. The substitution ion of trustee purportedly

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notarized on 3/19/12, almost a month after the NOD was recorded. The substitution was not

recorded until almost four month after the NOD was recorder on 6/13/12

85 Plaintiff alleges the NOD was recorded in violation of California civil code CCC 2934a

(a) (1) 2924b (4)(a) and is void . It is well settled there can not be a valid enforceable trustee sale

base on a void NOD. Westerns claiming to be the duly appointed trustee in possession of the

Deed and NOD had not perfected their substitution by recording it prior to recording the NOD

furthermore Plaintiff alleges their authority comes from entities fraudulently assuming authority

to authorize the substitution, therefore even with a recording, Western lacked authority to

record A NOD against plaintiff property. Exhibit (1)

86 Plaintiff alleges an unauthorized entity without authority filed a notice of default and it

is void the duly appointed trustee had not recorded or notarized the fact that’ the duly appointed

trustee as required by the California Civil code and it is hereby void. The substitution was

notarized almost a full month after the Notice of default was recorded. IE: Western recorded a

notice of default although there was no indication in the public records of Westerns authority to

act with respect to the property at the time.

The defective substitution of trustee

87 Plaintiff alleges the documents purporting to Substitute the trustee, are defective for the

following the first document purporting to substitute the trustee is not signed or notarized, and is

not dated. The second document purporting to support the transfer of trustee makes no reference

to Western whatsoever. Plaintiff mortgage contract or California civil code does not authorize a

loan servicer to authorize the substitution of trustee. Of the two documents, neither document

contains page numbers, nor do the documents make no reference to one another. The second

document purporting to substitute the trustee make a reference of the substitute trustee, the

plaintiff or the previous document. There is no apparent relationship to plaintiff, plaintiff Deed,

the note or property both document fail to mention the deed of trust or note and appear to assign

nothing. There is no reference on either document that would tie them together, therefore the

document is defective and cannot pass muster and must be classified as hearsay, void and

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ineffective to substitute a trustee. The documents do not claim to assign or transfer any rights in

the Deed or Note.


authority signed the Substitution of trustee, Plaintiff alleges the power of attorney listed for the

substitution of trustee does not exist or is for another entity other than that of the person signing.

Furthermore, there was no power of attorney attached to the substitution of trustee in the

recorders office as required. Exhibit (2)

89 Plaintiff asserts that the POA in this instant case 18509313 dated 2005 and the signer of

the substitution of trustee in this instant case under this power of attorney was not employed by

either company in 2005 therefore the power of attorney could not be issued for this signer.

Plaintiff alleges a power of attorney was issued before the signer was employed at the company

alleging to be the attorney in fact. The individual who sighed alleging authority to substitute a

trustee under plaintiff DOT was not employed with said company when the POA was issued in

2005 Plaintiff further alleges that the notary public signature on the document is signed by an

individual other than the named notary. IE: The signature is not the signature from the notary

public commission application or the notary signature card and the signature does note match the

notary stamp and seal..

90 In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court,

in calling the notice of default fatally defective stated:

California civil code 2924b (4) (b) 2924 b (4) (c) does not authorize the trustee to record a notice

of default before they have recorded their interest. Cal Civ. Code 2934a merely sets out the

protocol for the substitution of trustee after the previous trustee has filed the notice of default as

set out code itself ) 2924 b (4) (c) stating” that a copy of the substitution shall be sent to the

trustee then of record, where 2924b (4) (b) does not contain this language.

91 2934a (1)(A) says “all beneficiaries” must execute the Substitution of Trustee (the

applicable California law when a lender seeks to substitute the trustee and pursue a foreclosure

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sale), and the substitution of trustee document must be RECORDED to be effective, if not, the

resulting sale is VOID.

The Deed of trust is null and void quiet title is the remedy for that nullity.

102 There are safeguards in plaintiff’s contract that prohibit abuses by entities seeking to

record a notice of default, without first the holder of the note recording their interest., and a duly

recorded trustee filing the notice of default. The beneficial interest in the DOT to keep the title

chain intact and a recoded trustee must be adhered to per the plaintiffs mortgage contract the

governing documents in this instant case a financial contract consisting of a deed of trust and

promissory note .not even the most liberal reading of California Civil Code or plaintiffs

mortgagel contract would allow an unrecorded agent of an unknown entity or entities to legally

record a notice of default on plaintiffs recorded interest in real property,. It is not a legal

possibility, Thank you God. if the NOD is void, then the, notice of sale, substitution of trustee

and any foreclosure would have been totally void, 103 These provisions are safeguards clauses contractually built into the uniform

instrument used by FANNY MAE and FREDDIE MAC at issue in this instant case most if not

all lenders have adopted these uniform instruments and covenants. . They are designed so there

cannot be at any given time more than one person with the power to record a notice of default,

and conduct a sale under a Deed of Trust. Therefore, failure to execute or record a Substitution

of Trustee is a substantial defect, As such, any sale is void. In addition the substitution when

executed must also follow strict guidelines set forth in the Uniform instrument but also the

California Civil code 2934A 2a) (1) The trustee under a trust deed upon real property or an estate

for years therein given to secure an obligation to pay money and conferring no other duties upon

the trustee than those which are incidental to the exercise of the power of sale therein conferred,

may be substituted by the recording in the county in which the property is located of a

substitution executed and acknowledged by: (A) all of the beneficiaries under the trust deed, or

their successors in interest, and the substitution shall be effective notwithstanding any contrary

provision in any trust deed executed on or after January 1, 1968;

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104` 2934a (a)(1) (A) states very clearly the clause” not withstanding any contrary provisions

in any deed of trust executed after January 1 1968 There are contradictions

.There is a record before the court that a NOD was recorded by an entity with out authority

rendering the Sale void...A person authorized to record a notice of default under California civil

code is substantially different from plaintiffs mortgage contract, where only the duly appointed

recorded trustee is authorizes to record a notice of default. The lender is not the authorized t the

beneficiary is not authorized , the holder is not authorized to record a default , The duties of the

trustee are to act on behalf of these entities hence the name trustee and only one entity the duly

recorded trustee can have the authority to record a notice of default .. The uniform instrument

does not confer that the trustees agent is entitles to record a notice of default. Plaintiff mortgage

contracts are a Fannie / Freddie uniform instrument and these instruments have uniform

covenants and non uniform covenants t the California Civil code gives allowances for these

covenants t and in most all cases the financial contract is the governing document as you see in

2934a). A) All of the beneficiaries under the trust deed, or their successors in interest, and the

substitution shall be effective not withstanding any contrary provision in any trust deed executed

on or after January 1 1968. 2934a(,e). e) Notwithstanding any provision of this section or any

provision in any deed of trust, 2934a. A person authorized to record the notice of default is an

agent of the named trustee any person named in a executed substitution of trustee or an agent of

that substituted trustee an shall include and agent for the mortgagee or beneficiary

105 This procedure is contrary to provision in plaintiff security instrument and Dead of trust

as requested by defendant to be judicially noticed. VFAC exhibit (a)

Defendant judicially noticed exhibit 1

Feed of trust page 13 section 24 labeled “SUBSTITUTION OF TRUSTEE”, page 13 section 22

paragraph 2 lines 1-6 NON UNIFORM COVENENTS, page 28 3rd paragraph lines 4-11

EVENT IF DEFAULT REMIDIES. 3rd As stated in plaintiffs DOT and Note Neither the named

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beneficiary or the named lender under the DOT are authorized to record a notice of default nor

are their agents. The lender and or the beneficiary instruct the duly recorded trustee to record the

notice of default that is the purpose of the trustee.

106 Plaintiff deed of trust – page 13 paragraphs 24 Substitution of trustee the language clearly

states that the lender may appoint a successor trustee via an instrument acknowledged by the

lender and recorded in the county in which the property is located. This paragraph also state in

relevant part “that this procedure for substitution shall govern to the exclusion of all other

provision for substitution. This implies that only the lender can substitute a trustee. The alleged

lender as defined on page 1 of the Deed of trust is Downey Saving and loan.

California Civil code 2934a the language is very clear. 2934a (4) (b) If the substitution is

executed but not recorded prior to or concurrently with the recording of the notice of default the

beneficiary or their authorized agent shall cause notice of the substitution to be mailed prior to or

concurrently with the recording thereof. California civil Code 2934a (4)(b) when the notice of

default is filed the substitution must be effected and recorded before the notice of default is

recorded or concurrently.

California civil Code 2934a (4) (c) if the substitution is effected after the notice of default has

been recorded but prior to the recording of the notice of sale, the beneficiary or beneficiaries or

their authorized agents shall cause a copy of the substitution to be mailed prior to or

concurrently with the recording their of in the manner provided in section 2924b, (c)” to the

trustee then of record” ( this statement” to the trustee then of record “ implies that there was a

recorded trustee that filed the notice of default and now their is a e substitution of that trustee

and the new substituted trustee must notify that the old trustee the trustee that recorded the

notice of default.. trustee by sending a notice to that trustee) as you can see the statement” to the

trustee then of record” does not appear in the previous code California civil Code 2934a (4)(b)

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when the notice of default is filed the substitution must be effected and recorded before the

notice of default is recorded or concurrently..

107 The Substitution of Trustee was not executed in compliance with Cal. Civ.Code §2934a

(4) (b) (C) therefore the Substitution and any document filed by the new Trustee are void. The

Substitution of Trustee was recorded after the Notice of Default was recorded, but the required

Declaration of Mailing was not included as required by Cal. Civ. Code §2934a (b) and (c). The

Substitution of Trustee is defective and, therefore any documents signed by the new Trustee lack

proper authority and any sale of the underlying property is void. It’s worth noting that we are not

arguing that the Substitution was never actually mailed rather, we are concluding that a valid

Substitution of Trustee was not effectuated so the statutory mailing requirements were therefore

not met 2924b the power of sale can not be exercised until these notices are given for the time

and in the manner provided in CCC section 2924 any person desiring a copy of any notice of

default and any notice of sale ( In Pertinent) “may at any time “subsequent to recordation of the

deed of trust or mortgage” (emphasis added) and prior to recordation of the notice of default

there under cause to be filed for record in the office of the recorder of the county in which any

part of parcel of the real property is situated, a duly acknowledged request for a copy of the

notice of default and of sale.

California Civil Code section 2924b (a) this is straight forward; the power of sale can not be

exercised until the notices have been sent subsequent to the recordation of the deed of trust. This

requires the deed of trust to be recorded.

Plaintiff is making two arguments first in Cal Civ. Code 2924(b) The power of sale can not be

exercised until this mailing takes place when the notice of default is recorded by a effectuated

trustee, Second , you can not request the notice of mailing until,” after the recording of the Deed

of trust,”. The deed of trust must be recorded before the Notice of default to allow for the request

for the mailing of the notices. Of default that is exactly what 2924b says and that is what it

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means, a reasonable person would see it no other way. At some point, the deed needs to be

recorded to keep the chain of title we now know it must be recorded before the notice of default.

That fit in squarely with 2932.5 even though plaintiff is not claiming this and not because

legislation is currently active changing the regulation 2932.5 to include deeds of trust or that a

lien is and encumbrance and a dead of trust is a lean

108 Plaintiff asserts that Westerns declaration that they are the unrecorded duly appointed

Trustee now recording a notice default; prior to the requirement of recording their interest. this

is in fact a declaration as stated, and is self impeaching. A reasonable person could come to no

other conclusion other than a Notice of default was recorded by the duly appointed trustee prior

to effecting their interest and prior to recording that interest. By the strictures of California code

2934a and plaintiff mortgage contract, this is a fatally defective. The NOD in this instant case is

fatally defective therefore the NOD, NTS, and trustee sale are null and void..

109 2934 (a)(d)(C) of the California civil code does not state that a trustee can initiate a

foreclosure when they are not yet the recorded trustee” this piece of legislature simply allows for

the substitution after the NOD and assumes that the original trustee of record initiated the

foreclosure. Western progressive role is intentionally misleading in that their use of use language

contained in the notice of default claiming that they are either the original trustee, the duly

appointed trustee or acting as an agent for the trustee or beneficiary. When in fact Western

Progressive is the only entity fully disclosed on the NOD and they are allegedly in possession of

the Deed Of Trust and security instrument to effect the foreclosure, that by definition defines

them as the unrecorded trustee. As a result, the deceptive business act is an invalid notice of

default and invalid substitution of trustee.

110 Plaintiff alleges that on February 21 2012 Western recorded a NOD and in doing so

record a self impeaching statement, western therein declares they are the unrecorded trustee

recording a notice of Default. There is no opportunity in California Civ. Code of Procedure or

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plaintiff’s mortgage contract “the ruling authority in this case”” for an unrecorded trustee to file

a NOD. Under Cal. Civil Code section 2934b the NOD recorded February 21 2012, March 19

2012, 27 days later when Western effects the substitution of trustee by notary. Given the facts in

this matter a reasonable person could come to no other conclusion, other than Western was the

unrecorded substitute trustee when they recorded NOD and there fore did not comply with

2934a (4) (b) (c) or more importantly they did not comply with the mortgage contract.

111 Plaintiff alleges anomalies in the chronology of the foreclosure process that rendered the

notice of default “Void” and not merely voidable. Appellant contends that the contract language

in Plaintiffs contract, the Note and deed of trust must be followed,

112 The Foreclosure laws in California must be STRICTLY FOLLOWED or the Foreclosure

Sale is Void. In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the

Court, in calling the notice of default fatally defective stated:

113 These allegations have been confirmed by the defendants own request for Judicial Notice

of the same. Recorded Documents referred to by Plaintiff ( see defendants request for Judicial

Notice 2,3 and 4 in addition the defendants request for judicial notice of the notaries signatures

demonstrates that the substitution of trustee to western was not executed until 27 days after the

notice of default on March 19, 2012 and not recorded until four months after the notice of

default on June 13 2012 but they claim to have been transferred the DOT and NOTE as of

February 21 2012 this is an Invalid Substitutions after The Notice Of Default: and western is

now a nominal holder under UCC 3306 and the chain of title is irreparably broken

114 Plaintiff Deed of trust is a California Single Family Fannie Mae/Freddie Mack

Uniform instrument form 3005. Plaintiffs Note is a Fannie Mae /Freddie Mac uniform instrument

form 315 Fannie Mae/Freddie Mack has detailed the foreclosure process to servicers foreclosing

in California below. Fannie/Freddie “Note

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115 Fannie May Release 98-06 states the following)

(“A trustee that is not the original trustee named in the mortgage document must not

submit the “notice of default” for recordation in connection with a non –judicial foreclosure of a

California property until after a substitution has been recorded. When the “notice of default” is

recorded first it may carry the name of the trustee of record or the name of the new trustee. If the

“Notice of default” is recorded in the name of the trustee of record that trustee will have no

knowledge of the foreclosure and the power duties and authority of the trustee will actually be

exercised by a trustee not yet of record. If the “notice of default names the new trustee that

trustee is acting without power because (under section 2934a of the California Civil code) it is

filing of the substitution of trustee” that provides authority to the new trustee. When a “substitute

trustee” is required in connection with a non-judicial foreclosure in California a servicer should

make sure that the trustee it uses have the “substitution of trustee” recorded before the ”notice of

default” is recorded. The two documents can be submitted for recordation on the same day, as

long as the trustee request that the “substitution of trustee” be recorded immediately before the

“notice of default” A recorded assignment of note and deed of trust vests in the assignee all of

the rights, interests of the beneficiary (Musgrave v. Renkin, 180 Cal. 785 [183 P. 145]) including

authority to exercise any power of sale given the beneficiary (Civ. Code, § 858) The power of

sale here derived from the instrument itself. (Civ. Code, § 2932; McDonald v. Smoke Creek Live

Stock, 209 Cal. 231).”

116 Plaintiff has alleged, however, “The defendant DEUTSCHE and defendant Western

violated FANNIE MAE RELEASE 98-06 in regard to non-judicial foreclosures in California by

its failure to record a substitution of trustee prior to filing the Notice of Default.”

Second .Plaintiff further alleges that, “FANNIE MAE RELEASE 98-06 requires that any

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substitution of trustee must be recorded prior to the recordation of a default and that the Notice

of Default must not be prepared and recorded by a person or entity that was not the trustee of

record.

. . FANNIE MAE RELEASE 98-06 states in pertinent part: ‘When the ‘notice of default’ is

recorded first it may carry the name of the trustee of record or the new trustee. If the ‘notice of

default’ names the new trustee that trustee is acting without power because [under Section 2924a

of the California Civil Code] it is the filing of the ‘substitution of trustee’ that provides authority

to the new trustee.’” Based upon defendants’ alleged failure to comply with the Fannie Mae

release, plaintiff seeks cancellation of trustee’s deed upon sale. Providing the financial contracts

are legal, financial contracts covenants in general supersede other local requirements as set out in

both the California constitution and the constitution of the United States. Ex post facto meddling

with existing financial contracts is a triable offence. Page 13 paragraphs 24 of the deed of trust

under Substitution of trustee the language clearly states that the lender may appoint a successor

trustee the paragraph does not state that a successors, assignees, or nominees may appoint a

successor trustee. In addition, it surely does not say the undocumented agent of the servicer with

an unrecorded unattached alleged power of attorney can substitute a trustee.

117 California civil Code 2924.5 further substantiates Plaintiffs note and Deed are the ruling

authority in this case.

118 California Civil Code section 2924.5 No clause in any deed of trust or mortgage on

property containing four or fewer residential units or on which four or fewer residential units are

to be constructed or in any obligation secured by any deed of trust or mortgage on property

containing four or fewer residential units or on which four or fewer residential units are to be

constructed that provides for the acceleration of the due date of the obligation upon the sale,

conveyance, alienation, lease, succession, assignment or other transfer of the property subject to

the deed of trust or mortgage shall be valid “unless”(Emphasis added) the clause is set forth, in

its entirety in both the body of the deed of trust or mortgage and the promissory note or other

document evidencing the secured obligation. This section shall apply to all such deeds of trust,

mortgages, and obligations secured thereby executed on or after July 1, 197 again “” no

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clause in any mortgage or trust shall be valid “Unless the clause is set forth in its entirety in both

the Deed of trust or mortgage and the promissory note or other document evidencing a secured

obligation”.

119 As set forth in both plaintiffs Deed of trust and security instrument t as

required by California Civil Code section 2924.5 Defendants judicially noticed Exhibit 1 Rider

to promissory note and security instrument Events of default and remedies Exhibit 1 page 28 (in

pertinent) upon the occurrence of any event of default the note holder shall deliver unto trustee”.

Lender will execute or cause the trustee to execute a written notice of the occurrence of an event

of default and the lenders election to cause the property to be sold. Trustee shall cause this notice

to be recorded in each county in which any part of the property is located. Defendants judicially

noticed exhibit 1 Deed of Trust Page 13 section 22 paragraph 2 Lender invokes the power of

sale , lender shall execute or cause the trustee to execute a written notice of occurrence of an

event of default and of lenders election o cause the property to be sold trustee shall course the

notice of default to be recorded no where does is say an unnamed agent of an unrecorded

beneficiary or unknown holders of and unknown agent. The procedure is succinct and leaves no

room for interpretation.

120 This is an invalid substitution of trustee by the four corners interpretation of plaintiffs

Note and DOT even by the most liberal reading of Cal Civ Code 2934 would find the

substitution in this instant case to be invalid an invalid substitution of trustee in conjunction

with a void NOD and trustees sale is void. 121 The original Trustee DSL Service corporation (see deed of trust) Exhibit A of VFAC w

who was still the duly recorded trustee of record under the DOT when the notice of default was

recorded on February 21 2012 is unaware that a foreclosure has been initiated Deutsche and

Western claim that Plaintiffs’ first cause of action for quite title fails, as there has been no

foreclosure auction. Under Plaintiffs financial contracts” the deed trust and promissory note

dictate only the recorded lender beneficiary can substitute a trustee. Only the trustee of record

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can record a notice of default. There can be only one trustee of record that can record a notice of

default. There is only a lender or beneficiaries of record that can request the trustee to record a

notice of default on plaintiff’s deed of trust. Under the plaintiffs note and Deed of trust, only a

trustee of record or with a recorded interest can take action on plaintiff DOT. Only a trustee can

record a NOD “only a recorded Trustee can record a notice of default.” There is no mention of

unnamed agents legally taking action on plaintiff property rights, the parties to a mortgage

contact are responsible to adhering to the terms and covenants of the mortgage contract.

122 UCC and California civil codes gives guidelines for foreclosures for when contract are

obscure or incomplete but cannot override an existing legal contract between two parties.

Without a valid recorded interest, DBNTC and Western are strangers to these contacts and have

no legal standing to substitute a trustee or initiate a foreclosure.

123 California civil Code does not require a beneficiary to record its interest. One would

assume in a first in state it would be a matter of utmost importance and prudence and you would

not have to make it a requirement, but regardless, the four corners of plaintiff mortgage contract

Deed of trust and Note require a recorded interest to take action on plaintiffs note. Any trustee

under plaintiff’s contract would have had to have a recorded interest to become the trustee and

are contractually obligated to follow the mortgage contract and that requires recorded interest of

a substitute a trustee to take action on plaintiffs note. According to the four-corner

interpretation of plaintiffs DOT A trustee created by third parties to a pooling and service

agreement is not authorized to substitute the trustee, a loan servicer is not authorized to substitute

trustees. Only the lender beneficiary can substitute a new trustee. As spelled out in the four

corners of plaintiff Deed of Trust and promissory note that state

” The deed of trust: Section 24 “

124 The lender can appoint a successor trustee any trustee appointed hereunder by an

instrument executed and acknowledged by lender and recorded in the office of the recorder of

the county in which the property is located. The instrument shall contain the name of the original

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lender, trustee and borrower, the book and page where the security instrument is recorded and

the name and address of the successor trustee, with out conveyance of the property. The

successor trustee shall succeed to all the title power and duties conferred upon the trustee herein

and by applicable law. This procedure for substitution of trustee shall govern to the exclusion of

all other provisions for substitution

125 “This procedure for substitution of trustee shall govern to the exclusion of all other

provisions for substitution”

126 The Deed of Trust Section 22 relevant parts, provides,

“The lender invokes the power of sale, lender shall execute or cause the trustee to execute a

written notice of the occurrence of default, and trustee shall cause this notice to be recorded.

Rider to promissory not and security page two paragraph 3

Note Holder at its option may then or thereafter deliver to the trustee a written declaration of

default and demand to sell the property and shall cause to be filed for record a written notice of

default’s

127 The original trust deed naming Downey as lender beneficiary has been recorded

properly, and there has been no change of record to the Trust Deed. Under the terms of plaintiffs

note and deed of trust only the lender or beneficiary are authorized to take action on plaintiffs

note plaintiff alleges that defendants never obtained a valid assignment of the subject note and

deed of trust from the original lender.

128 Integrity of California’s record title system is also at stake because the validity of title for

subsequent purchasers is dependent on those that precede it.

129 Plaintiff alleges anomalies in the chronology of the foreclosure process that would appear

to render the notice of default "void," and not merely voidable: These allegations have been

confirmed by defendants' own request for judicial notice of the same documents plaintiff

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submitted as exhibits.1) The Deed of trust 2), Notice of Default 3) Notice of Sale 4) Substitution

of Trustee. (See defendants' Request for Judicial Notice, Exhibits 1,2,3,4, In addition,

defendants' request for judicial notice demonstrates that the duly recorded beneficiary, Lender

and trustee of the DOT on 2-21-20012 when NOD was recorded was Downey Savings and loan

whom defendants are not in privity or in agreement contractually or otherwise association with.

Further substantiations are made by Defendants claims that the documents are directly from the

Santa Clara County Recorders office. Western caused to have recorded a NOD on February 21

2012 with out authority. The notice of default was recorded by Western Progressive almost a full

month before Western effected and was appointed the foreclosure trustee (March 19 2012). And

three months before western was recorded as trustee June 13 2012. Recordation of a valid Notice

of Default is an indispensable condition precedent to any non-judicial foreclosure pursuant to

California Civil Code § 2924, et seq. Filing the notice of default is required under Civil Code §

2924, and the procedures requiring such filing are strictly construed. Miller v. Cote (1982) 127

Cal.App.3d 888, 894; Sweatt v. Foreclosure Co. (1985) 166 Cal.App.3d 273, 278; Wanger v.

EMC Mortgage Corporation (2002) 103 Cal.App.4th 1125. A foreclosure process predicated on

a statutorily defective notice of default is invalid as a matter of law. Miller v. Cote, supra, at 894

the alleged failure to comply with this statutory duty pleads negligence per se. See Evidence

Code § 669(a) (1). Additionally, whether a defendant has complied with a statutory mandate is a

question of fact that cannot be resolved on demurrer (see e.g., Daum v. SpineCare Medical

Group, Inc. (1997) 52 Cal.App.4th 1285, 1306 holding that the question whether a party has

complied with a statute is one of fact for the jury).

130 Plaintiff alleges a breach of contract by virtue of the statute’s implied incorporation of

certain statutes. See Nichols v. Greenpoint Mortg. Funding, Inc., 2008 WL 3891126 (C.D. Cal.

Aug. 19, 2008); Schulken v. Washington Mut. Bank, 2009 WL 4173525 (Nov. 19, 2009);

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Quintero Fam. Trust v. OneWest Bank, F.S.B., 2010 WL 392312 (S.D. Cal. Jan. 27, 2010). The

“expansion of liability” contemplated by the court in Berger is simply not present where, as here,

the express terms of the contract require compliance with all applicable statutes and regulations

prior to initiating a foreclosure. Indeed, such contract provision likely exists to preclude

Defendants from hiding behind the purported absence of a private right of action under code

provisions of the sort discussed supra. See Lincoln General Ins. Co. v. Access Claims Adm’rs,

Inc., 596 F. Supp. 2d 1351, 1367 (E.D. Cal. 2008) (rejecting argument that statute failed to create

private right of action on grounds that plaintiff “has not brought a cause of action under the

statute but rather alleges that the statute’s requirements were integrated into the contract and that,

by violating them, [defendant] breached the contract.”). The VFAC’s breach of contract claim is

on basis of violations section 2924 and that it imposes affirmative obligations upon mortgagees,

beneficiaries, and authorized agents prior to a non-judicial foreclosure. Failure to comply with

such obligations forms the gravamen of a cause of action for wrongful foreclosure, the code

provisions concern obligations that must be followed prior to the initiation of non-judicial

foreclosure proceedings against a borrower. See Cal. Civ. Code §§ 2924; see also Ortiz, 639 F.

Supp. 2d at 1166 (crediting argument that “the California legislature would not have enacted this

‘urgency’ legislation, intended to curb high foreclosure rates in the state, without any

accompanying enforcement mechanism.”). However, the Court notes that a cause of action based

on non-compliance with section 2924 is ordinarily pled as a cause of action to set aside trustee’s

sale as invalid, as section 2924 does not itself identify any statutory remedies. See, e.g., Gomez

v. Wachovia Mortg. Corp., 2010 WL 291817, at *5 (N.D. Cal. Jan. 19, 2010) (assessing cause

of action predicated on alleged violation of section 2924). Notwithstanding the accessibility of a

private right of action predicated on a violation of section 2924, the Plaintiff alleges violations of

section 2924., 2923.5 and section 2015.5 Plaintiff does allege that Defendants failed to comply

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with the express requirements in section 2924, including the requirement that a compliant notice

of default precede a non-judicial foreclosure.

The notice of default initiated d by An Entity Other Than the recorded Beneficiary, lender or

holder:, The NOD was recorded by an entity other than the recorded trustee

131 Further Plaintiff further asserts the substitution of trustee is void for its failure to comply

with plaintiffs loan contract requirements for the substitution of trustees, and notice of default,

when an unauthorized stranger to the deed of trust, with no effected or recorded interest in the

property recorded and Notice of default against plaintiff property and then proceeded to sell the

property after the defect was brought to their attention.. basis for an unlawful substitution of

trustee in direct conflict with the strict requirements for substitution of trustee and the

recordation of NOD at set forth in plaintiff DOT and NOTE render the notice of default and

trustee sale void. Pertinent points are found in defendants request for judicial notice exhibit 1

132 Defendants through their use of created documents IE: the substitution of trustee

looks good but do not meet the standards of proof required in a foreclosure. No Power of

attorney attached. Unite States V. Deutsche fraud -Federal Deposit Insurance Corporation v. LSI

& LSI Title LSI title fraud.

There are two entities involved with this case currently being sued for fraud this is a sign for

concern and in this instant case plaintiff alleges Deutsche is fraudulently claiming to hold title to

plaintiff note or to be the owner of the note.

Plaintiff specifically alleges that based on the fraudulent conduct of robo signers fraudulently

assuming authority the entity that initiated the foreclosure lacked the authority to proceeded with

the foreclosure


authority signed the Substitution of trustee, claiming to be assigned a power of attorney. Plaintiff

alleges that this alleged power of attorney does not name this individual as an approved signer

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and furthermore the POA was not recorded with the substitution, or represented in any way.

Plaintiff believes and alleges this substitution of trustee document was manufacture and robo

signed. When one executes an instrument purported on its face to have authority to sign and does

not the signers is fraudulently assuming authority. The employee of the servicer that signed the

substitution of trustee has been employed with the servicer, as a contract supplier for five years

the POA thet is referenced is from 2005 in another individual name.

135 Plaintiff further alleges that the notary public signature on the document is a signed by

an individual other than the named notary. The signature is not the signature from the notary

public commission application or the notary signature card and does not match the notary stamp

and seal. From the documentation sent to Plaintiff alleges the document show that they were sent

from Westerns office in Atlanta GA to LSI title in Los Angels. Defenders would like the court to

believe the substitution of trustee in this instant case was notarized in Florida, at Western office,

and then the documents were sent to westerns Atlanta GA office where they were then forwarded

to LSI title in Los Angeles. LSI title is currently in A law suit with the FDIC for fraudulent mis-

representation. The transaction in this case the substitution of trustee sent to plaintiff came with a

work order to LSI “request for the recording of the substitution is a work order to send “the

documents. The document could have been sent from Florida directly to LSI CA to be recorded,

but went to Georgia. Plaintiff alleges the document is a rudimentary fabrication of combinations

of three documents cut and pasted together from records available from the Santa Clara County

recorders office Defendants were in such a hurry to illegally foreclose they didn’t even take the

time to make a convincible photo shop document. The foreclosure crisis has spanned four years

and the bank believes they can create and fabricate and bringing fraud against the people and the

courts with impunity all they need is an affidavit and all the illicit activity goes away. The

Twenty five billion dollar fine was a drop in the bucket compared to the trillions made from

inventor borrower and retaining possession of the property

136 Plaintiff argues, It is well established that the owner of property cannot be divested

thereof by a forged instrument.” Shurger v. Demmel, 148 Cal.App.2d 307, 309 (1957). A forged

instrument is wholly void. Trout v. Taylor, 220 Cal. 652, 656 (1934). Plaintiffs allege that an

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actual forgery on the substitution of trustee and that the assignment is void and the trustee’s sale

is void. Plaintiffs alleges and believes and states a claim that the instruments on which the

foreclosure is based are void the forgery is the stamp and signature of the notary the signature

fails to match the signature card application for notary commission Therefore, it is a void

foreclosure the foreclosure sale, which has been concluded, is void. exhibit 3

137 SUBSTITUTION OF TRUSTEE LEGAL REQUIREMENTS UNDER CALIFORNIA

LAW

(i) The Foreclosure laws in California must be STRICTLY FOLLOWED or the Foreclosure Sale

is Void. In Miller v. Cote, 179 Cal.Rptr. 753, (Ct of App. Fourth Dist. Div. 2 1982), the Court, in

calling the notice of default fatally defective stated: “The procedure for foreclosing on security

by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924, et seq. The

statutory requirements must be strictly complied with, and a trustee’s sale based on a statutorily

deficient notice of default is invalid. (System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d

137, 152-153, 98 Cal.Rptr. 735; see California Mortgage and Deed of Trust Practice (Cont.Ed.

Bar 1979) s 6.40, p. 295; see also Bisno v. Sax (1959) 175 Cal.App.2d 714, 720, 346 P.2d. 138 2934a(1)(A) says “all beneficiaries” must execute the Substitution of Trustee (the

applicable California law when a lender seeks to substitute the trustee and pursue a foreclosure

sale), and the substitution of trustee document must be RECORDED to be effective, if not, the

resulting sale is VOID. (a) Only the beneficiary can substitute a Trustee under California Civil

Code Section 2934a(a)(1), and such document must be recorded: This section states: “(a) (1) The

trustee under a trust deed upon real property or an estate for years therein given to secure an

obligation to pay money and conferring no other duties upon the trustee than those which are

incidental to the exercise of the power of sale therein conferred, may be substituted by the

recording in the county in which the property is located of a substitution executed and

acknowledged by: (A) all of the beneficiaries under the trust deed, or their successors in

interest….” (Emphasis added). Thus, it is clear; there can be no valid non-judicial foreclosure

where the trustee under the original deed of trust is not properly substituted with a “recorded”

document. If the sale was wrongful, no rationale exists for overburdening the Plaintiff with a full

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debt tender where the sale has been a matter of paperwork rather than payment. Thus, this court

can impose the tender requirement on Plaintiff at judgment if the court deems it appropriate.

139 Plaintiffs argument is that DBNTC and Western sale of the subject property was

an is illegal because they were not the lender, beneficiary or authorized agents of the lender or

beneficiary, as required by the terms of appellants promissory note and deed of trust mortgage

contract

This is straight forward, the lender/beneficiary request the trustee to record the notice of default

again “the trustee at the request of the lender /beneficiary files the notice of default.

140 There are no legal avenues or opportunities for a notice of default to be recorded by an

unrecorded, unknown, stranger or an, unknown unrecorded an unassigned agent of unknown

unrecorded representing and unassigned beneficiary of plaintiff Note and DOT.

141 DBNTC does not claim to be a lender, a note holder or a beneficiary but an entity created

by a pooling and service agreement of which plaintiffs, Plaintiff note and deed are not legally a

party. A court cannot rewrite a contract and discard its procedural safeguards when ruling on a

motion to dismiss.

142 Plaintiff alleges that the subject notice of default is void, and not merely voidable, and

plaintiff thereby invokes a second recognized exception to the tender rule. And quiet title (See,

Lona, supra, 202 Cal.App.4th at 112; Dimock, supra, 81 Cal.App.4th at 878.Plaintiffs

specifically allege that based on the fraudulent conduct the entity that initiated the foreclosure

lacked the authority to precede with the foreclosure.

143 According to California case law, the so-called lender would lose the right to foreclose on

the security (real estate) if the obligation is unenforceable. Savings Bank v. Asbury (1897) 117 C

96, 48 P 1081; Trowbridge v. Love (1943) 58 CA 2d 746. As the theory goes, if the lender trying

to foreclose on a property cannot prove default by producing the original note and deed of trust

then they may not have the right to foreclose at all. Defendants have failed to make a persuasive

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argument why a deed of trust recorded by persons with no interest in the subject property should

not be deemed void (see, Cal. Civil code section 2924(a) (1) and 2924b subd (b)(4): dimock v.

Under California law , a substitution of trustee is valid in regards to a prior recorded notice of

default if the substitution is executed before the notice of default is executed The NOD was

recorded on February 21, 2012. The substitution of trustee was not executed until March 19,

2012, Since the NOD was recorded before the substitution of trustee was executed, and The

NOD was invalid. The notice of Trustee sale was invalid since it was recorded without a valid

NOD. The NTS was recorded on June 13, 2012 and set the date for the trustee sale July 7, 2012

Non Valid notice of default was recorded against Avenue because it was recorded prior to the

substitution of trustee. Accordingly, the notice of trustee sale for Ave was void and the trustee

sale of July 9, 2012.

144 The Civil code need not specify that the foreclosing party must posses the promissory

note because the terms of the mortgage contact spell out the process to be followed Cal civil

code e 2920(a) states that a mortgage is a contract A mortgage is a contract and under the

contract only the lender can make a decision to foreclose- regardless of who “initiates the

foreclosure they must be the owner of the note..

145 The comprehensive statutory framework established by Cal Civ. Cod 2924 to govern non

judicial foreclosure sales is intended to be exhaustive.

Moeller V. Lien (1994) 25 Cal. App. 4th822” moreover, the language of the statute is expressly

applicable on as between parties to a contract, DBNTC makes no claim that it is a party to a

contact with plaintiff.

Paragraph 16 of plaintiff Deed of Trust states, This Security instrument shall be governed by

federal law and the law of the jurisdiction in which the property is located. all rights and

obligations contained in this security instrument are subject to any requirements and limitations

of applicable law. Applicable law might explicitly or implicitly allows parties to agree by

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contract or it might be silent, but silence shall not be construed as prohibition against agreement

by contract. The contract consist of a promissory note and a security instrument that supports it,

in this case a deed of trust. These two instruments define the creation and termination of the

mortgage and in particular they determine the process of foreclosing on a mortgage.

Paragraph 22 of the Deed of trust empowers only the lender to initiate a foreclosure. “if the

lender invokes the power of sale , Lender shall execute or cause trustee to execute a written

notice of the occurrence of an event of default and the lender elects to cause the property to be

sold . DBNTC was never the lender and a trustee can not act without authority.

emerald properties(2000)81 Cal. App. 4th 868,876-877.)

Gomez v. countrywide home loans Inc. (2011) 192 Cal. App 4th 1149. is easily distinguishable

as MERs was named as the Beneficiary in the DOT.) Here defendants own request for judicial

notice confirms that the parties that initiated foreclosure proceedings DBNTC and Western did

so at a time when neither had an interest of any kind in the subject real property. The fact that

US BANK had Plaintiffs promissory note in January 21 2010 and has no assignment or alonge

attached, is evidence that the promissory note was not assigned or negotiated to DBNTC by the

closing date of HVMLT 2007-7 October 14, 2007. In addition, that DBNTC could not legally

accept the note into a trust that strictly prohibits acquiring assets after the closing date of the

trust. As evidenced by the certified true and exact copy of the original note. VFAC Exhibit H

The original Beneficiary never substituted another trustee to handle the foreclosure under a

Substitution of Trustee. Substitute trustees are typically firms that specializing in default

servicing and foreclosure processing. Where there is no successor Trustee, there can be no valid

non‐judicial foreclosure where the trustee under the original deed of trust is not properly

substituted with a “recorded” document prior to the notice of default 2934a (4) (b)

146 Substitution executed by An Entity Other Than the recorded Beneficiary, lender :, NOD

recorded by an entity other than the recorded trustee Substitution of Western was not executed

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by the Beneficiary of the loan. Therefore, the instrument is invalid unless it was signed with the

express authority of the Beneficiary, Specifically, the original lender.

147 A properly assigned beneficiary did not execute the Substitution of Trustee. Cal.Civ.

Code §2934a (a) (1) states that only the current Beneficiary of the loan has the authority to

execute a valid Substitution of Trustee. Therefore, a successor Trustee must be appointed by the

original Lender or a properly assigned Beneficiary. Western was not appointed by the original

lender or Beneficiary of the recorded Deed of Trust. Therefore western does not have the

authority to foreclose on the subject property or to execute the statutorily required notices. 2934a

(1) (A). Therefore essentially technically and as a matter of law Western was the duly appointed

trustee in possession purported to be in possession but p by the statute to make the declaration.

§2923.5 state that a notice of default "shall include a declaration from the mortgagee,

beneficiary, or authorized agent that it has contacted the borrower...Western never tried to

contact plaintiff

148 Under Plaintiff mortgage contract there are no authorized agents it is very

specific and succinct the lender or mortgage authorizes the trustee to file the notice, plaintiffs

mortgage contract I governing document.

149. Plaintiff alleges the Substitution of Trustee is important in California because all the

beneficiaries must sign the Substitution of Trustee OR >50% of the beneficiaries must sign the

Substitution of Trustee [in a securitized transaction], of which the servicer CANNOT sign.

Plaintiff alleges the servicer signed them (with power of attorney) this means the Substitution of

Trustee is ineffective (because the legislative INTENT was that the REAL beneficiaries would

sign). When there is an assignment of the deed of trust, the assignee is granted the authority

under California law to initiate the foreclosure process on behalf of the beneficiary and its

successors and assigns. See Civil Code §§’s 2924(a)(1)&(4) (where a power of sale is conferred

upon the mortgagee, trustee or any other person, the power shall not be exercised until the

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trustee, mortgagee, or beneficiary, or any of their authorized agents record a notice of default and

notice of sale. U

150 “Defendants’ reliance on Gomes is misguided. In Gomes, the California Court of Appeal

held that a plaintiff does not have a right to bring an action to determine a nominee’s

authorization to proceed with a non-judicial foreclosure on behalf of a note holder. 192 Cal. App.

4th at 1155. The nominee in Gomes was MERS. Id. at 1151. MER was nominee under the deed

of trust the beneficiary was not disputed Here, Plaintiff is not seeking such a determination.

Plaintiff alleges the defendants are strangers to the deed of trust

United States V. Deutsche fraud Federal Deposit Insurance Corporation v. LSI & LSI Title LSI

title fraud

There are two entities involved with this case currently being sued for fraud this is a sign for

concern in this instant case plaintiff alleges Deutsche is fraudulently claiming to hold title to

plaintiff note or to be the owner of the note.

Plaintiff specifically alleges that based on the fraudulent conduct of robo signers fraudulently

assuming authority the entity that initiated the foreclosure lacked the authority to proceeded with

the foreclosure

151 152 Plaintiff further alleges that the notary public signature on the document is a

signed by an individual other than the named notary. The signature is not the signature from the

notary public commission application or the notary signature card and does not match the notary

stamp and seal. From the documentation sent to Plaintiff alleges the document show that they

were sent from Westerns office in Atlanta GA to LSI title in Los Angels. Defenders would like

the court to believe the substitution of trustee in this instant case was notarized in Florida, at

Western office, then the documents were to sent to westerns Atlanta GA office where they were

then forwarded to LSI title in Los Angeles. LSI title is currently in a lawsuit with the FDIC for

fraudulent mis- representation. the substitution of trustee sent to plaintiff came with a work order

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to LSI. The request was for the recording of the substitution is a work order sent to LSI in

California, when they could have been sent from Florida to CA but instead were sent to Georgia

then to LSI Ca to be recorded. Plaintiff alleges the document is a rudimentary fabrication of

combinations of three documents cut and pasted together from records available from the Santa

Clara County recorders office. Defendants were in such a hurry to foreclose, that they did not

even take the time to make a convincible photo shop document. The foreclosure crisis has

spanned four years and banks believes they can create and fabricate and brig fraud against the

people nd the courts with impunity all they need is an affidavit and all the illicit activity goes

away Exibit 2

Conversion

157 Plaintiff argues DDNTC is representing the true undisclosed lender beneficiary by way of

a warehouse line of credit a prefunding account. As set forth in the HVMLT-2007-7

prospectuses report. Plaintiff alleges he is subject to undisclosed restriction and critical entities to

a legal contract undisclosed to plaintiff. Plaintiff was unaware of who he was dealing with and

therefore there was no meeting of the minds element critical for a legal binding contract. Plaintiff

alleges there was not valid contract or a true contract where plaintiff is the obligor. Plaintiff

argues if that DBNTC did fund plaintiffs loan and did not disclose themselves nor did they

incorporate the real terms of the payment to the plaintiff, under TILA and RESPA the loan

contact would be void is void for failure to disclose critical components of the contract. DNBTC

knew that they were funding loans but did not disclose it nor did they put forth the restriction that

would be involved once the loan was funded, either way the contract would be void.

158 Pre-Funding Account

http://www.sec.gov/Archives/edgar/data/826219/000114420407052883/v089298_424b5.htm

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Exert from HVMLT-2007 prospectus If so specified in the related prospectus supplement,

the pooling and servicing agreement or other agreement may provide for the transfer by the

Sellers of additional mortgage loans to the related issuing entity after the Closing Date. The

additional mortgage loans will be required to conform to the requirements set forth in the related

pooling and servicing agreement or other agreement providing for the transfer, and will be

underwritten to the same standards as the mortgage loans initially included in the issuing entity

as described in the prospectus supplement. The transfer may be funded by the establishment of a

pre-funding account established with the trustee. If a pre-funding account is established, all or a

portion of the proceeds of the sale of one or more classes of securities of the related series will be

deposited in the account to be released as additional mortgage loans are transferred. A pre-

funding account will be required to be maintained as an Eligible Account, the amounts therein

may be required to be invested in Permitted Investments and the amount held therein shall at no

time exceed 50% of the proceeds of the offering of the related securities. The related pooling

and servicing agreement or other agreements providing for the transfer of additional

mortgage loans generally will provide that the transfers must be made within up to three

months (with respect to any series of certificates) or up to, but not in excess of, one year

(with respect to any series of notes) after the Closing Date, and that amounts set aside to fund

the transfers (whether in a pre-funding account or otherwise) and not so applied within the

required period of time will be deemed to be principal prepayments and applied in the manner set

forth in the prospectus supplement.Amendment http://www.sec.gov/Archives/edgar/data/826219/000114420407052883/v089298_424b5.htm 160 The pooling and servicing agreement may be amended by the depositor, the seller, the

master servicer, the securities administrator and the trustee, with the consent of the NIMS Insurer

but without the consent of the holders of the certificates, for any of the purposes set forth under

“Operative Agreements—Amendment” in the prospectus. In addition, the pooling and servicing

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agreement may be amended by the depositor, the seller, the master servicer, the securities

administrator and the trustee, with the consent of the NIMS Insurer and the holders of a majority

in interest of each class of affected certificates, for the purpose of adding any provisions to, or

changing in any manner or eliminating any of the provisions of the pooling and servicing

agreement or of modifying in any manner the rights of the holders of any class of certificates.

However, in no event, may any amendment:

reduce in any manner the amount of, or delay the timing of, distributions required to be made on any class of offered certificates without the consent of the holders of all the affected certificates; or

affect adversely in any material respect the interests of the holders of any class of offered certificates in a manner other than as described in the clause above, without the consent of the holders of that class evidencing percentage interests aggregating at least 66⅔%; or

reduce the aforesaid percentages of the aggregate outstanding class principal balances of the offered certificates, the holders of which are required to consent to any such amendment, without the consent of the holders of all those certificates.

the amount on deposit in the pre-funding account on the closing date, the master servicer, with the prior written consent of the NIMS Insurer (which consent will not be reasonably withheld), will have the right to purchase all of the mortgage loans and REO properties remaining in the trust fund. We refer to the date on which this option may be exercised as the “optional termination date” of the trust fund.

It states NIMS insurer can purchase not the trustee.

161 This is the pooling and service prospectus for Harborview mortgage loan trust 2007-7. As

you can see does not allow any reduction in any manner with out the authorization from the

investors, as stated by US. Bank VFAC exhibit L it could be hundreds of investors that own a

portion of Plaintiff loan. Trying to get them all to agree Plaintiff believes it would be near

impossible. At any rate, it was not stipulated in plaintiff’s mortgage contract. This is all viewable

on the link below on the sec web site.

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Personal property is the subject of conversion if it is of a tangible nature or if it is tangible

evidence of title to intangible or real property, when an intangible obligation is represented by

the document, and is regarded as equivalent to the obligation. The property affected must be

some personal chattel and it has been decided that trover lies for title deeds and for a copy of a

record. Defendant, DBNTC exercised an illegal assumption of ownership over plaintiffs

promissory note when they restricted plaintiff right to seek relief from his loan servicer the

exercise of restriction over plaintiffs servicer was a dominion over his title.

162 It is well settled that an action based on implied-in-fact or quasi contract cannot lie

when there exist between to parties a valid contract covering the same subject matter. Where

defendant contract (PSA) interferes with plaintiff rights to apply and qualify for a loan

modification it is a tortuous interference.

163 Plaintiff’s allegations are Conversion of intangible rights of a negotiable instrument

merged with real property. This conversion involves restrictions and or a dominion placed over

plaintiffs’ interest in a negotiable instrument by DNBTC. Plaintiff alleges the that pooling and

service agreement for HVMLT 2007-7strictly prohibited plaintiff servicer from altering the

economics of plaintiff loan in any restricting plaintiff from qualifying for any financial assistance

in the way or forbearance , loan workout and or any modification of plaintiffs loan and strictly

forbid plaintiffs loan servicer from implementing a HAMP loan modification, as explicitly

detailed in the letter from plaintiff primary loan servicer in 2010 and an email from the SR.

0mbudman Specialist for the FDIC. Plaintiff was determined eligible. To qualify but DBNTC

forced restriction and dominion over plaintiff’s promissory note in their act of restricting

plaintiff’s loan servicer from modifying plaintiff’s note per a pooling and service agreement this

constituted a Conversion of intangible rights of a negotiable instrument merged with real

property. Plaintiff alleges the actions by DBNTC against plaintiff’s interest in his property

55

http://www.google.com/search?hl=en&biw=1360&bih=583&sa=X&ei=ILIXUJ-wH4Lp0gHr_IBQ&ved=0CEsQvwUoAQ&q=foreclosure+It+is+well+settled+that+an+action+based+on+implied-in-fact+or+quasi+contract+cannot+lie+when+there+exist+between+to+parties+a+valid+contract+covering+the+same+matter&spell=1

http://www.google.com/search?hl=en&biw=1360&bih=583&sa=X&ei=ILIXUJ-wH4Lp0gHr_IBQ&ved=0CEsQvwUoAQ&q=foreclosure+It+is+well+settled+that+an+action+based+on+implied-in-fact+or+quasi+contract+cannot+lie+when+there+exist+between+to+parties+a+valid+contract+covering+the+same+matter&spell=1

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prejudiced plaintiff exceedingly and in do so put plaintiff in jeopardy of loosing his home and to

allege an injury under section 17200…” (Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal.

2010) 732 F.Supp.2d 952, 973, citing Sullivan v. Wash. Mut. Bank, FA (N.D.Cal. 2009) 2009

WL 3458300; see also Rabb v. BNC Mortgage, Inc. (C.

Personal property is the subject of conversion if it is of a tangible nature or if it is tangible

evidence of title to intangible or real property, when an intangible obligation is represented by

the document, which is regarded as equivalent to the obligation. The property affected must be

some personal chattel and it has been decided that trover lies for title deeds and for a copy of a

record. Defendant, DBNTC exercised an illegal assumption of ownership over plaintiffs

promissory note when they restricted plaintiff right to seek relief from his loan servicer, and

restricted plaintiff loan servicer from performing in-house loan workouts or forbearance the

exercise of restriction over plaintiffs servicer was a unconscionable dominion over his title and

interest in plaintiffs personal property.

Plaintiff’s allegations are Conversion of intangible rights of a negotiable instrument merged with

real property. This conversion involves restrictions and or a dominion placed over plaintiffs’

interest in a negotiable instrument by DNBTC. DBNTC strictly prohibited plaintiff from loan

modifications, Forbid plaintiffs loan servicer from implementing a HAMP loan modification,

when he was deemed eligible. When DBNTC forced restriction and dominion over plaintiffs

promissory note in their act of restricting plaintiffs loan servicer from modifying plaintiffs loan it

constituted a Conversion of intangible rights of a negotiable instrument merged with real

property. Plaintiff alleges he was duly qualified and eligible for several different modification

and or forbearance programs offered by his loan servicer but DBNTC restricted plaintiff servicer

from implementing any of these modifications to plaintiff’s loan as evidence by

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Exhibit Judicially noticed exhibit C Stating from VP of Compliance US Bank US Bank the

primary servicer of plaintiffs loan is contractually precluded from modifying plaintiffs.. VFAC

Exhibit (L)

164 VP of Compliance US Bank Excerpt from letter “US Bank serviced your loan

pursuant to a servicing agreement that specifically prohibits the bank from modifying any terms

of your loan that would alter the economics of the loan.” VFAC page 27 paragraph 68 ln 7

165 VP of Compliance US Bank from US Bank” US Bank as well as the former Downey

Savings is contractually precluded from modifying your loan similarly Wells Fargo is not in a

position to provide a modification”. VFAC page 27 paragraph 68 ln 7

. 166 VP of Compliance US Bank : There are possibly hundreds of investors that own a

portion of the mortgage backed security, stated differently there is no one individual that owns

the rights to the note in its entirety””. End quote Exhibit (3)

167 Sr. Ombudsman Specialist for the FDIC “US Bank does not have the authority to modify

your loan, furthermore the pooling and service agreement (PSA) with substantiates the above.”

Exhibit (d) VFAC Page 4 paragraph 9 ln16

Plaintiff proffered three loan modification applications that took over two years, this is the norm,

and not the exception for what has become known as loan modification nightmare for millions of

Americans. Plaintiff believes PSA restriction are the primary reason President Obama’s HAMP

program failed. Investors unwittingly through their Trustees, PSA agreements and loan servicers

(owned and operated by banks) foreclosed on their assets, incurring further loses instead of

modifying loans and maintaining the cash stream and asset base by modifying loans. At this

time everyone is fully aware servicers and trustees have denied modifications and was told

investors would not modify each time over three years plaintiff applied for modification and or

in house forbearance programs offered by said servicer. Plaintiffs servicer asked defendant

DBNTC to agree to equity share and was also denied stating the investor won’t modify per the

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pooling and service agreement. A pooling and service agreements created DBNTC as trustee

and DBNTC enforces it on loan servicer as alleged in detail in Plaintiffs VFAC with supporting

emails from Sr. Ombudsman Specialist for the FDIC and corroborated in written letters to

plaintiff from VP of Compliance US Bank two individuals without question above reproach.

US BANK, Plaintiffs primary loan servicer stated in a written letter in pertinent that “a loan

modification is strictly prohibited by the servicing agreement.” See exhibits The Servicers’

collections procedures may affect the timing of collections on the mortgage loans

http://www.sec.gov/Archives/edgar/data/826219/000114420407052883/v089298_424b5.htm.

An excerpt for the HVMLT 2007-7 Prospectus

168 exert from The HVMLT-2007-7 prospectus report


The servicer can modify any term of the mortgage loan as long as the servicer doesn’t change

any economics of the loan. , it state the servicer as long as the modification or rather

postponement is not martially adverse the servicer can delay the payments but can not change

the payments meaning the interest rate or balance can no be effected. IE no modification

Conversion personal property title document evidencing or creating interest in real property

169 Plaintiff alleges The promissory note has been illegally converted in to digital format

without plaintiff consent and this was done before there fore it was incapable of being negotiated

to DBNTC and impossible for DBNTC to have possession that would entitle DBNTC to enforce

.

Plaintiff further alleges that the restriction put on the negotiable promissory not by defendant

pooling and service agreement and prospectus report would render the note non – negotiable.

Defendant cannot produce the original note and that Conversion of a Dead of Trust and

Promissory note representing real property into electronic format is not authorized is illegal

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and voids the note unless conversion into electronic format expressly agreed to in the contract

itself. Plaintiff third cause of action for conversion transmogrification of Plaintiffs promissory

note and deed of trust, plaintiff argues that the Note and the Deed of Trust have been rendered

void or there has been a transmogrification of the Note and Deed of Trust into something other

than a secured debt for which plaintiff deed of trust no longer secures. Plaintiff was aware his

mortgage could be sold one or more times as explained in the plaintiffs contact DOT. There is a

sale and then the notes is securitized , converted into electronic format and added restrictions

these are different action set apart you do not have to securitize a promissory note to sell a note

as authorized in plaintiffs mortgage contract the sale of the note is note predicated or contingent

on securitization its unauthorized action unto itself. There was no contractual disclosure or

contingency clause that plaintiff note could or would be securitized. The plaintiffs contract does

not authorize securitization had already sold plaintiffs mortgage into one or more securitization.

Plaintiff alleges DBNTC knew they had no standing and still restricted plaintiffs loan

modification options and with out negotiating the Note convert Plaintiff mortgage deed of trust

into an unauthorized security “to succeed, there must be a fantastic transformation of his Note (a

negotiable instrument) Plaintiffs alleges this is a fantastic transformation and plaintiffs DOT

became unsecured when plaintiffs DOT and Note were transmogrified was converted into an

equity participation interest of third-parties acquiring interests in the HVMLT 2007-7 Trust. See

US Banks explanation of ownership of Plaintiffs note. Stating” there are possibly hundreds of

investors that own a portion of your mortgage and there is no one individual that owns the right

to your note in its entirety Exhibits (D), (F.) For attorneys schooled in the Commercial Code and

transactions involving instruments, such a transformation is a grotesque distortion of the law. In

substantiation of the conversion transformation Plaintiff points to the Uniform Electronic

transaction Act (UETA) or the Federal Electronic signatures in global and national Commerce

act (E-Sign). The Provisions in E-sign are nearly identical to the equivalent provision in UETA,

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the most important difference between the two sections is that E-sign provision are more

narrowly drawn referring only to promissory notes secured by real property, where as UETA

provisions refer to promissory notes and documents without limitations . A transferable record

can only be created if the obligor expressly agrees to execute a negotiable instrument in

electronic form so the conversion of existing paper notes into electronic form is not authorized

by these statutes.. Plaintiff alleges anyone complying with the contractual obligation of plaintiffs

DEED and Note could not legally convert plaintiff’s financial documents into electronic format

with out plaintiffs expressed agreement. Plaintiff in this instant case has not expressly agreed to

execute their negotiable instrument into electronic format, or to state it differently the mortgage

was converted into a security and has changed the physical form as well as its contractual

logistics.

Defendant DBNTC has added restriction and enforced this restriction onto plaintiff’s loan

servicer service. Plaintiff was advised by the FDIC who was responsible for the liquidation of

Downey savings as set out in the email from the FDIC. Restriction placed on plaintiffs property

by the defends DBNTC’s pooling and service agreement. VFAC exhibits (E) (L) The altering of

or the contracting around of plaintiffs contract rights thereby altering the contractual

requirements and overall remedial logistics of plaintiff note to plaintiff detriment. The

restrictions imposed on plaintiffs intangible interest in a negotiable instrument merged with real

property. Transmogrification would be a more thorough classification of the wrongful action by

the defendants. The obligation was changed from a physical negotiable instrument with built in

options to qualify for modification and forbearance programs into an electronic based security

with unconscious able restrictions, These restriction were implemented by DBNTC without

plaintiffs consent or explicit consent for the documents and signatures to be securitized or

electronically formatted . The characteristics of the loan have been narrowed the term of the

contract have been changed without plaintiff approval or knowledge. Plaintiff asserts that the

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discourse of the contract has radically changed contractually. Restrictions the execution of said

note into electronic format and from a note to a security with out proper disclosure or plaintiffs

consent is a transmogrification of plaintiff Mortgage note a grotesque distortion of the law and

renders the transaction breached and Void. Under UCC-3106(a) our promise or order is

rendered conditional when the rights or obligation with respects to the promise or order are

stated in another writing IE” The HVNLT-2007-7 prospectus and pooling and service agreement

which adds numerous obligors to the transaction ion and further restriction , contrary to the

definition of a negotiable instrument,

unencumbered promise. UCC. § 3-106. UNCONDITIONAL PROMISE OR ORDER.

170 (a) Except as provided in this section, for the purposes of Section 3-104(a), a promise

or order is unconditional unless it states (i) an express condition to payment, (ii) that the promise

or order is subject to or governed by another writing, or (iii) that rights or obligations with

respect to the promise or order are stated in another writing. A reference to another writing does

not of itself make the promise or order conditional..

Plaintiff alleges the transmogrification, conversion of plaintiffs Deed of Trust as explained

above has rendered the Negotiable instrument non negotiable.. voide. The deed of trust is null

and void quite title is the remedy to that nullity

171 In assessing damages for the wrongful foreclosure, the Munger Court held: “Civil Code

Section 3333 provides that the measure of damages for a wrong other than breach of contract

will be an amount sufficient to compensate the plaintiff for all detriment, foreseeable or

otherwise, proximately occasioned by the defendant’s wrong.”

17 Plaintiff alleges damages resulting from Defendants’ restriction and dominion

placed on plaintiffs promissory note and by restricting his opportunity to obtain a loan

modification has cost plaintiff thousand of man hours, but also cost plaintiff hundreds of

thousand of dollars he would have realized over the life of the loan had he been given the

modification he was qualified and to which DBNTC restricted from plaintiffs options and for

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which DBNTC did not have the legal right to restrict. These injuries are monetary, but also may

result in the loss of Plaintiff’s property. Furthermore, these injuries are causally connected to

Defendants’ conduct.

TENDER

Plaintiff need not allege tender where they allege fraud with respect to defendants’’ asserted title

in the subject property. i

173 The cases known to counsel for Plaintiff which require tender are for maintaining

an action for irregularity in the procedure of a trustee’s sale. Here, Plaintiff alleges that the

foreclosure sale is VOID, not voidable. Additionally, California recognizes that: "Equity does

not wait upon precedent which exactly squares with the facts in controversy, but will assert itself

in those situations where right and justice would be defeated but for its intervention." Bisno v.

Sax (1959) 175 Cal. App. 2d 714, 728. Therefore, the tender rule does not apply.

174 Plaintiff alleges that Western Progressive Declaration by their own admissions had

acquired the Deed and Note on 2/21/12 see defendant judicial notice exhibit#3 last paragraphs.

According to California Civil code 2934a to make the NOD lawful and enforceable they were

required to record that interest before or concurrently with the recordation of the NOD. Western

in their rush to foreclose on Plaintiff did not record or effectuate their interest. There is a record

before the court that an illegal and defective notice of default was filed by the duly appointed

trustee before they recorded or affected their interest. The NOD is defective and therefore the

foreclosure sale is void, any other decision would be a conflict of law The substitution was

notarized As a matter of record the NOD was filed 2/21/12 before the substitution was

notarized 3/19 12 ands recorded 6/11/12

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175 If there is no valid recorded substitution of Trustee before the Notice of default is filed

then the resulting foreclosure is VOID, and there is no obligation under California law to “

tender” the loan balance to set aside the sale based on this technical violation and defendants

failure to strictly comply with 2934a(1)(A). Again, California courts have spoken loud and clear

on this issue. If a Substitution of Trustee is not valid, the resulting sale is VOID with no

requirement for “tender”. See Dimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000),

which held: “In particular, contrary to the defendants’ argument, he was not required to tender

any of the amounts due under the note” in order to attack a void trustee sale. The Court in

Dimrock further stated: “To avoid confusion and litigation, there cannot be at any given time

more than one person with the power to conduct a sale under a deed of trust” (emphasis added).

176 See also Pro Value Properties Quality Loan Service Corp., 170 Cal.App.4th 579 (2009).

Other California courts have also been willing to set aside foreclosure sales that violate the law

or otherwise have serious irregularities without the requirement of tender. In the case of

Whitman v. Translate Title Company, 165 Cal.App.3d 312, 211 Cal. Rptr. 582 (1985) the Court

dispensed with a tender requirement where a “substantial statutory right” was violated (the Trust

or’s one day right to extend the non-judicial foreclosure one business day pursuant to Cal. Civ.

Code Section 2924g(c)(1)) and thus the Court essentially treated the sale as “void” requiring no

tender. This is in line with the holding in the Little v. CFS Service Corp. 233 Cal.Rptr. 923,

(1987) which discussed the difference between “substantially defective sales” (which are VOID

and of no legal effect, - where no tender rule should apply), versus minor defects and

irregularity, which are “voidable” and where arguably the tender rule might apply). There, a

176 Notice of Sale defect was deemed substantial and prejudicial and thus the sale was

declared void even as to a bona fide purchaser for value. Here, failure to execute or record a

Substitution of Trustee, is a substantial defect and impacts a right afforded to borrowers to know

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who the trustee is that will sell their property at a foreclosure sale. As such, the sale is VOID and

not merely VOIDABLE, and no tender is required to seek to file a lawsuit to set aside the sale.

177 (DAMAGES: where a sale fails to strictly comply with 2934a (1)(A) the sale violates the

law and should be deemed an “illegal” sale under Munger v. Moore and all damages flowing

from the illegal sale may be properly recovered.

178 The landmark case in wrongful foreclosure is the case of Munger v. Moore, 89 Cal.Rptr.

323 (1970), in this case the Court held: “We are inclined however, to believe that with respect to

real property the Murphy case was articulating a rule that has been applied in other jurisdictions.

That rule is that a trustee or mortgagee may be liable to the Trustor or mortgagor for damages

sustained where there has been an illegal, fraudulent or willfully oppressive sale of property

under a power of sale contained in a mortgage or deed of trust.…..this rule of liability is also

applicable in California, we believe, upon the basic principle of tort liability declared in the Civil

Code that every person is bound by law not to injure the person or property of another or infringe

on any of his rights.” In assessing damages for the wrongful foreclosure, the Munger Court held:

179 The tender rule is not a defense, for two reasons. First, plaintiff is contesting the validity

of the underlying debt; to require plaintiff to tender the full amount of the underlying debt to the

defendants would be to require that plaintiff affirm the validity of the defendants' right to collect

that underlying debt. (See, Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112-113.)

180 Plaintiff alleges the notice of default void not merely voidable; plaintiff thereby invokes a

second recognized exception to the tender rule. See lona Supra,202 Cal. App. 4th at 112:

Dimock, supra, 81 Cal.App.,4that 878 There is no dispute that the tender rule only applies if the

foreclosure sale was voidable , not void.

181 Plaintiff does not allege a cause of action ‘implicitly integrated’ with a irregular sale

where plaintiff would be obliged as the Trustor to allege and establish a valid tender.” Nor is

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plaintiff claiming that defendants are mortgagees, beneficiaries, lenders, bank or creditor where

an alleged tender would be applicable, or an alleged tender would be required. Plaintiff as stated

the defendants ARE STANGERS TO THE Note and DOT and their authority is not appearing in

any documents presented. Accordingly, because Plaintiff alleges improprieties with the validity

0f the defendant’s claims of ownership interest and standing and because the trustee sale has not

taken place yet, the Court should decline to require Plaintiff to make or allege an actual tender at

this time. Deutsche and western asserts 17 time in the first four pages of their demurrer to

plaintiffs VFAC that plaintiff entire VFAC should be dismissed due to Plaintiff’s failure to or

make an actual tender. Defendants rely on an apparent maxim in the context of foreclosures

known as the “tender rule,” that before an action can be brought against the lender or beneficiary

pursuant to which a borrower who has defaulted must first do equity himself before requesting

the Court to stop or set aside the foreclosure proceedings. First Plaintiff argues that DBNTC and

Western are neither and the foreclosure sale has illegally taken place. This is the gravamen of

their entire defense while they have failed have failed to fully address or understand any of the

contention argued in the VFAC. Plaintiff requested a delay in the foreclosure sale to try and

work out an equitable arrangement a modification an undertaking but was summarily dispatched

and told it was over. However, a review of the cases cited by Defendants indicates that the

California “tender rule” applies only where the plaintiff is trying to set aside a foreclosure sale

due to some irregularity.

Nguyen v. Calhoun, 105 Cal. App. 4th 428, 439 (2003) (plaintiff’s purchase of the subject

property before the sale took place);

Abdallah v. United Sav. Bank, 43 Cal. App. 4th 1101, 1109 (1996) (irregularity in the sale

procedure);

U.S. Cold Storage v. Great Western Sav. & Loan Ass’n, 165 Cal. App. 3d 1214, 1225 (1985)

(irregularity in the sale notice);

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Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App. 3d 575, 578 (1984) (irregularity in the sale

notice);

Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 118 (1971) (voidable sale under a deed

of trust) In the present case, however, the trustee’s sale has not occurred , and Defendants have

failed to cite to any case that would establish a similar bright-line rule requiring tender where the

plaintiff is merely attempting to prevent a trustee sale from proceeding. Moreover, it is well-

established that “an offer to pay debt may not be required where doing so would be inequitable.”

See Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1184 (N.D. Cal. 2009) The California Supreme Court has stated: holding that, where a party has the right to avoid a sale,

he is not bound to tender, any payment in redemption.

55 Whatever may be the correct rule, viewing the question generally, it is certainly not the

law that an offer to pay the debt must be made, where it would be inequitable to exact such offer

of the party trying to determine the validity of the sale. Under the circumstances disclosed by this

record, the defendant would be subjected to very evident injustice and hardship if the right to

attack the sale were made dependent upon an offer by debtor, to pay the whole debt Humboldt

Sav. Bank v. McCleverty, 161 Cal. 285, 291 (1911) If the sale was wrongful, no rationale exists

for overburdening the Plaintiff with a full debt tender where the sale has been a matter of

paperwork rather than payment. Thus, this court can impose the tender requirement on Plaintiff

at judgment if the court deems it appropriate.

182 The only case that is somewhat relevant is Meetz v. Mohr, 141 Cal. 667, 673 (1904),

where the California Supreme Court concluded that tender was required before a sale under a

trust deed could be enjoined, In the present case however, Plaintiff is not requesting an

injunction or TRO or an order enjoining the trustee’s sale. No assignment of their interest has

been forthcoming. In Sutter St. R.R. Co. v. Baum, 66 Cal. 44, 52, 53 [4 P. 916], it is stated that

such a tender was not necessary where the plaintiff cannot determine in advance of the suit the

amount due because of the need to base the ascertainment of the sum due on facts independent of

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the terms of the contract. The defendants, in this instant case, have added in an excess of fifty

thousand dollars in fees and the servicer. A correct statement does not match what the trustee

183 claims is due and the notice of default says there are trustee fees , interest and advances ,

late charges, foreclosure fees , and cost that become payable The defendants have not replied to

Plaintiffs request for an accounting as according to CCC 2945. The interest rate on this contract

Is miscalculated as plaintiff loan interest rate is base on the libor rating and we now the rates

have been manipulated costing homeowners and investor hundred of billion s of dollars the

service company has added over fifty thousand dollars in undocumented fees and refuses to give

plaintiff and accurate account ,because of the libor and

184 Plaintiff’s first cause of action is to quiet title. Defendants argue that because

plaintiff has failed to tender payment of what is owed on his loan, this cause of action

must fail. Plaintiff argues that he falls within recently recognized exceptions to the

tender rule. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112. Here, as in

Lona, plaintiff challenges the validity of the underlying debt.

185 Plaintiff need not allege tender where they allege fraud with respect to

defendants’’ asserted title in the subject property"Equity does not wait upon precedent which exactly squares with the facts in controversy, but will

assert itself in those situations where right and justice would be defeated but for its intervention."

Bisno v. Sax (1959) 175 Cal. App. 2d 714, 728. Therefore, the tender rule does not apply.

186 Plaintiff alleges there is no valid recorded substitution of Trustee

before the Notice of default was filed then the resulting foreclosure is VOID,

and there is no obligation under California law to “ tender” the loan balance

to set aside the sale based on this technical violation and defendants

failure to strictly comply with 2934a(1)(A). Again, California courts have

spoken loud and clear on this issue. If a Substitution of Trustee is not

valid, the resulting sale is VOID with no requirement for “tender”. See

Dimrock v. Emerald Properties, 81 Cal.App.4th 868, 878 (2000), D.Cal. 2009)

2009 WL 3045812.) Prejudicial to the Plaintiffs interest laintiff alleges

that the loan was not in default because the loan is not subject to a

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perfected lien.188 Plaintiff further asserts, the loan was not in

default because the loan is subject to a Pooling and service agreement that

agreement stipulates that the master servicer the primary servicer, the

servicer or sub-servicers is required to make the payments, if plaintiff

does not. Plaintiff argues this falls under the deed of trust “lenders

acceptance of payments from third party entities,” lenders acceptance of

third party entities applied to plaintiffs loan amount, therefore Plaintiff

is not in default and these payments in conjunction with certain credit

enhancement stipulated in the pooling and service agreement gives plaintiff a

pecuniary interest in the pooling and service agreement as it is his

signature and loan receiving the payments. VFAC exhibit (a) DOT page 4 section

2 lines 1-6

189 Application of payments or proceeds All payments accepted by applied by lender will be

applied to interest then principal VFAC exhibit (a) DOT page 4 section 2 lines 1-6

190 Furthermore plaintiff DOT substantiates this by adding Miscellaneous proceeds shall be

applied to the sums secured by this security instrument VFAC exhibit (a) DOT section 10

therefore plaintiff has a right to question standing based upon that agreement.

191 Plaintiffs further allege that he is not in default, by the four corners interpretation of their

mortgage contract. The deed of trust section 23 page 13 of the deed of trust, VFAC page 13,14

par

192 Plaintiff argues that the purported irregularities and securitization restriction place on

plaintiff by defendant DBNTC, caused their inability to pay off the debt, and that multiple

entities claiming to be the rightful beneficiary or trustee caused confusion in the process.

193 Plaintiff alleges given the phrasing of the Note and DOT the original lender would have

refrained from foreclosure under the circumstanced presented and modified or refinances

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plaintiff’s loan rather to sell the house at current market value, suffer the cost of foreclosure only

adding additional losses to be incurred (75k average). The original lender was not under the

restriction of REMIC and a pooling and service agreement nor had the options of credit

enhancements and credit default swaps to undermine plaintiff ownership interest. The original

lender was not under oppressive dominion of servicers and trustees with agendas adverse to the

interest of the lender and borrower that would result in the unauthorized loss of the subject

promissory note.

194 DOT page 3 par 2 ln 2 modification of the note DOT Page 9 section 12 line 1

forbearance Page 9 section 12 line 2 modification Page 10 line 3 modify page 10 ln 5

Forbearance Modify

195 Technically adhering to plaintiff mortgage contract the loan is not in default. Page 10 of

plaintiffs DOT VFAC exibit (A)

196 Plaintiff alleges,” the initiation of foreclosure proceedings put the plaintiff’s interest in

his property sufficiently in jeopardy to allege an injury under section 17200…” (Rosenfeld v.

JPMorgan Chase Bank, N.A. (N.D.Cal. 2010) 732 F.Supp.2d 952, 973, citing Sullivan v. Wash.

Mut. Bank, FA (N.D.Cal. 2009) 2009 WL 3458300; see also Rabb v. BNC Mortgage, Inc.

(C.D.Cal. 2009) 2009 WL 3045812.)

197 Plaintiff alleges DBNTC intermeddling with plaintiff financial document rights and

interest obstructed plaintiff ability to pay his part of the obligation but asserts the pooling and

service agreement also required the master service and the primary and sub servers to pay

plaintiffs debt in case plaintiff could not, this raises two issues one concerning the Fair debt

collection act if the servicer was collecting for defendants or themselves and why was plaintiffs

account not credited for these third party payments , this is plaintiff pecuniary relationship to this

agreement as it is plaintiff note receiving payments. The fact be known being according to the

pooling and service agreements stipulations Plaintiff is not in default.

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198 WHEREFORE, plaintiff prays judgment against defendant and each of them, as follows:

. For an order, compelling said Defendants and each of them, to transfer legal title and

possession of the subject property to Plaintiff herein;

. For a declaration and determination that Plaintiff is the rightful holder of title to the property

and that Defendant Herein, and each of them, be declared to have no estate, right, title or interest

in said property; For a judgment forever enjoining said defendants, and each of them, from

claiming any estate, right, title or interest in the subject property; For costs of suit herein

incurred; For such other and further relief as the court may deem proper.

199 Plaintiff alleges facts which literally construed support legal claims under statute and that

raise issues of law whether pled or not are applicable to undisputed alleged facts, and would

requests a leave to amend any cause of action the honorable court deem amendable

200 I, William J Cutlip Plaintiff in the above-entitled action. I have read the foregoing _and

know the contents thereof. The same is true of my own knowledge, except as to those matters,

which are therein alleged on information and belief, and as to those matters, I believe it to be

true.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

was executed at San Jose, California

Dates

Signature

Plaintiff did not sign up for the securitization of his mortgage. Plaintiff alleges DBNTC

does not have the note or is, not holder, owners, beneficiary, or lender of the note and did not

receive the debt in any manner but they have and continue the illegal obstruction of plaintiff

ability to correctly be appraised for a loan modification .The negating clauses in DBNTCs

PSA. And the influence and dominion over plaintiffs ability to control his property is against

plaintiff rights and interest in said property through the conversion of the intangible rights of

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plaintiff personal property “the negotiable instrument in this instant case” representing the debt

merged with plaintiff real property..

Plaintiff cannot comprehend or believe that defendant, after foreclosing on tens of

thousand of mortgages in the great state of California did not know they were acting illegally and

committed traible criminal offences.

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