Appl Prel Inj Verified

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Notce and Order to Show Cause – Preliminary Injunction

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Nancy Duffy McCarron, CBN 164780 Law Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93103 805-450-0450 fax 805-965-3492 [email protected] Real Estate Broker Lic. 853086 Notary Public Lic. 1791117 Certified Arbitrator for BBB 30329 Attorney for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)

DAVID W. GATES, Trustee for the DAVID W. GATES Trust dated August 5, 1996 Plaintiff, vs. MGC Mortgage, Inc., Texas Corporation LPP Mortgage Ltd., LP, Texas Corporation Loan Acquisition Corporation, Texas Corporation Cal-Western Reconveyance Corporation, Texas CorporationDB Structured Products, Inc., Delaware Corporation Deutsche Bank National Trust Company, as trustee Washington Mutual Bank, a national banking association Wamu Asset Acceptance Corporation, SPV vehicle bank Washington Mutual Mortgage Securities Corporation, bank JP Morgan Chase Bank., National Association, a bank DOES 1 through 50, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No: 1384851

NOTICE of/and ORDER TO SHOW CAUSE why PRELIMINARY INJUNCTION should not issue and application for Preliminary Injunction Declarations of David Gates & Nancy D. McCarron Filed concurrently with Request for Judicial Notice case filed: 2-1-2012 CMC: not yet set MSC: not set Trial : not set DATE: March 12, 2012 TIME: 9:30 a.m. DEPT: 5 Honorable Colleen K. Sterne CCP §§ 527, 187

TO: DEFENDANTS AND ATTORNEY(S) OF RECORD

PLEASE NOTE that on March 12, 2012 at 9:30 a.m. in Dept. 5 of the Santa Barbara Superior Court, at 1100

Anacapa St., Santa Barbara plaintiff will move the court on his verified application for preliminary injunction.

The motion is based on CCP §§527, 187, P&A, affidavits, file, Judicial Notice request, any evidence presented.

The court ordered moving papers filed 2-6-2012; responsive papers filed 2-21-2012; reply, if any filed 3-5-2012.

Plaintiff has served this notice on defendants as shown on the attached proof of service, although no defendant has

made an appearance. All named defendants have been served with summons, verified complaint, ADR packet,

notice of lis pendens, and Notice of Entry of TRO with setting of Preliminary Injunction Hearing by personal

delivery (process server) as of 2-6—2012. (3 defendants on 2-3-2012) and (7 defendants on 2-6-2012).

Dated: 2-6-2012 Nancy Duffy McCarron

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POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

SUMMARY OF ARGUMENTS:

The theme of the case which the court should apply is: NO TICKEE …NO LAUNDRY!!!

No ORIGINAL note & TD--no relief! This rule must be applied under UCC Art. 3

All Exhibits cited below are to the verified complaint on file, unless identified as being attached herein.

(see Request for Judicial Notice filed concurrently. --- Exh. K to verified complaint). Plaintiff asks the court to

re-read his 8-page application for TRO which contains arguments on balancing the hardships and equities.

I. UCC Article 3 GOVERNS BECAUSE A NOTE IS A NEGOTIABLE INSTRUMENT

The beneficiary of a note must be an oblige of the secured obligation (usually the payee on the note)

because otherwise the deed of trust in its favor has no purpose. UCC 3-104 (e) (Exh. K -page 2) see also

Watkins v. Bryant (1891) 91 C 492; Nagle v. Macy (1858) 9 C 426 [on the need for an underlying obligation].

A deed of trust is merely an incident of the debt, Id.

The COPY OF A NOTE produced by defendants in its response to plaintiff’s QWR indicates that Gates’

debt is payable to “DB Structured Products, Inc.” (Exh. A-10). The NOTE wasn’t endorsed by any human signor.

It is stamped with the name Cynthia Riley, purported VP of Washington Mutual Bank, NA (already defunct bank)

purportedly notarized by CF Carney. Riley has already been identified as a known “robosigner” as noted in

Obama’s Task Force on Fraud (see Exh. E-12) and a class action filed this month on robosigners. (see Exh. M)

Attached to this motion is Exh.1 – a few samples from other loans with Riley’s name (cut & pasted thereon)

Cynthia Riley’s name is on every published list on the internet (re: fraudulent foreclosures) of known robosigners.

Plaintiff’s note and recorded trust deed recited that Washington Mutual Bank, FA is the lender and Fidelity

Title is the “Trustee.” on 9-25-05 (see Exh A–valid chain of title – A6 et seq). The promissory note was made

payable to DB Structured Products, Inc. (DBSPI) . There is no recorded document (nor has one been produced)

which suggests the note was ever endorsed to MGC or any other bankster. The Deed of Trust (DOT) recites that

Washington Mutual Bank, FA is the beneficiary. No valid instrument was ever recorded or produced which

indicates that DB Structured Products, Inc. ever transferred the beneficial interest on the NOTE to MGC.

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Transfer of mortgage paper may be made outright (sale) or by pledge (as security for a loan to the transferor.)

In either event, to perfect the transfer, the transferor must physically deliver the NOTE to the transferee. Without

a physical transfer, a sale of the NOTE could be invalidated as a fraudulent conveyance under Civil Code §3440.

A transfer in pledge could be invalidated as an unperfected transfer under Com Code § 9313-9314. California

Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, section 1.26.

One without a pecuniary interest in the Mortgage Loan (NOTE) is not an oblige under the debt and, thus,

has no legal standing to foreclose ab initio. Watkins v. Bryant (1981) 91 C 492. 27 P 77 this is hornbook law)

Gates’ note is not a bearer instrument, but is an instrument made payable to a specifically identified person;

to wit: DB Structured Products, Inc.UCC §3-109. A promissory note which is payable to a specifically identified

person is not transferred merely by possession; instead, transfer requires a transferor to endorse it UCC §3-201,

“’Negotiation’ means a transfer of possession… if an instrument is payable to an identified person, negotiation

requires transfer of possession of the instrument and its endorsement by the holder. If an instrument is payable to

bearer, it may be negotiated by transfer of possession alone.” An endorsement is not made by merely purchasing a

note or a debt, or by an assignment; instead an endorsement is made by the signature of the specifically identified

person to whom the NOTE is owed. The relevant section of UCC §3-204 recites as follows:

“Endorsement” means the signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for purpose of (1) negotiating the instrument, (2) restricting payment of the instrument, or (3) incurring endorser’s liability on the instrument… UCC §3-204 [emphasis added]

If one bought a NOTE and intends to enforce it, but the NOTE does not carry the endorsement of the payee

that person’s remedy is to bring an action in court to compel the transferor to endorse the note to the transferee.

Once that is done, the transferee creditor can enforce the NOTE against its maker (debtor/trustor). §3-203 states:

“(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.

(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

http://www.law.cornell.edu/ucc/3/3-104.html#Instrument_3-104

http://www.law.cornell.edu/ucc/3/3-204.html#Indorsement_3-204

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(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of endorsement by the transferor, the transferee has a specifically enforceable right to the unqualified endorsement of the transferor, but negotiation of the instrument does not occur until the endorsement is made.

(d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee. UCC §3-203 [emphasis added]

An action must be prosecuted by the real party in interest. This standing doctrine involves constitutional

and prudential limitations. Kowalski v. Tesmer 543 US 125, 128-129, (2004) (quoting Warth v. Seldin, 422 US

490, 498. Constitutional standing under Article III requires, at a minimum, that a party must have suffered some

actual or threatened injury as a result of the other party’s conduct, that the injury be traced to the challenged

action, and that it is likely to be redressed by a favorable decision. Valley Forge Christian College v. Am. United

for Separation of Church and State, 454 US, 464, 472. Beyond the Article III requirements of injury in fact,

causation, and redressibility, the creditor must also have prudential standing, which is a judicially-carved set of

principles that places limits on the class of persons who may invoke the court’s powers. Warth, Id. @ 499.

As a prudential matter, a party must assert, “his own legal interest as the real party in interest.”

Dunmore v. US, 358 F.3d. 1107, 1112 (9th. Cir. 2004.) Neither CWRC or LPP has standing to foreclose.

In the bankruptcy of In re Mitchell, BK-S-07-16226-LBR (Bankr.Nev. 3-31-09, p.10) the Court found

MERS did not have standing merely because it alleged that it was the beneficiary under a deed of trust. It was

insufficient to enforce the obligation. Only an oblige under a note has a beneficial interest in the promise to pay.

“Where the mortgagee has ‘transferred’ only the mortgage, and not the underlying note, the transaction is a nullity

and his “assignee” having received no interest in the underlying debt or obligation, has a worthless piece of paper.

(4 Richard R. Powell, on Real Property §37.27[2] (2000).” In re Mitchell, supra @ page 12. In re Foreclosure

Cases, 521 F. Supp. 2D 650, (S.D. Oh. 2007). No documents were recorded in Santa Barbara County Recorder’s

Office relating to the promissory note, which debtor has not seen since it was executed. A review of the recorded

documents (Exh.A–valid chain of title; A6) recites that Washington Mutual Bank FN is the beneficiary of Gates’

NOTE. A second recorded document (Exh B-fraudulent recorded documents, B1) recites that DB Structured

Products, Inc. is the beneficiary. A third recorded document recites that LLP Mortgage Limited, LP is the

beneficiary (B2). A fourth document recites that Loan Acquisition Corporation (B3) is the beneficiary, and then

recites LLP Mortgage Limited, LP is the beneficiary (B4).

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Bottom line is: any one of the above-cited four entities could claim to be the beneficiary of Gates’ note.

Additionally, some other person or entity who actually HOLDS the original note could claim it is the beneficiary.

If the court were to order any one of the above banksters to be a holder in due course, entitled to payment on the

underlying obligation, based upon only a COPY of a purported assignment of trust deed, the actual HOLDER

could produce the NOTE and then sue Gates’ on the underlying obligation and prevail under governing UCC.

THIS HAS HAPPENED IN OTHER CASES. IN AN EASTERN COURT A JUDGE REPORTED THAT

THREE DIFFERENT ENTITIES FILED CASES CLAIMING TO BE LENDER ON THE SAME PARCEL!

A court may not speculate under Article 3 of the UCC as to which one of the four banksters could be a

holder in due course. The only way to identify the true beneficiary (HOLDER in due course of NOTE) is to

make the foreclosing trustee produce the ORIGINAL NOTE to ascertain who the beneficiary actually is.

This is what a court is required to do in California under UCC, Art.3. Absent applying UCC the court would have

to speculate as to who the holder might be and could possibly guess wrong. This would be completely inequitable

to Gates as it exposes him to subsequent liability if the actual beneficiary sued him to collect on the original note.

The court must apply UCC here and order that defendants must produce ORIGINAL NOTE and TRUST DEED.

NO TICKEE …NO LAUNDRY!!! NO ORIGINAL NOTE/TD – no relief!!!

That is the bottom line!!! That is what is required to be applied under UCC Art. 3

The court can expect defendants to produce a conveniently drafted “affidavit of lost note and trust deed”

because this is exactly what the banksters are doing across the nation. This is why the class action was filed.

(Exh. M) Defendants can not risk prosecution under Penal Codes §§115, 132-135 by offering the original note.

Even if they did there would be no endorsements in the chain of title. An original “assignment” is impossible as

the recorded one is a cut & paste fabrication using a robosigner and photoshop software. In 50 states, district and

bankruptcy courts the banksters are filing in most cases are perjured affidavits reciting that the “original note and

trust deed has been lost.” Defendants across the nation are ingenious in creating an array of reasons why they can

not produce the original note or trust deed, usually blaming it on some one else in the purported chain of title, and

gambling that the court will be naïve enough to believe these concoctions just because they are signed under oath.

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PLAINTIFF PRAYS THE COURT NOT TO ACCEPT ANY CONCOCTED STORY ABOUT A LOST NOTE!

NO TICKEE …NO LAUNDRY!!! If trustee can’t produce an endorsed original note he can’t foreclose.

That is the bottom line! That is required under UCC Art. 3, Negotiable Instruments

In Carpenter v. Longan, 16 Wall. 271, 83 US 271, 274 (1872) the USSC held “the note and mortgage

are inseparable; the former as essential, the latter as an incidental. An assignment of the note carries the mortgage

with it, while and assignment of the latter alone is a nullity. An obligation can exist with or without security.

With no security, the obligation is unsecured but still valid. A security interest, however, cannot exist without an

underlying existing obligation. Hensley v. Hotaling (1871) 41 C 22. Turner v. Gosden (1932) 121CA 20, 8 P.2d

505. Lee v. Joseph (1968) 267 CA2d 30, 72 CR 471. (no note, no standing) Civil Codes §2872, 2909, 2920.

California Mortages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, §1.11.

The obligation and the security are commonly drafted as separate documents – typically a promissory

note and a deed of trust. If the creditor transfers the note but not the deed of trust, the transferee receives a

secured note; the security follows the note, legally if not physically. Civ. §2936. Scidell v. Tuxedo Land Co.

(1932) 216 C 165, 13 P2d 686. Lewis v. Booth (1935) 3 C.2d.345 If the transferee is given the deed of trust

without the note accompanying it, the transferee has no meaningful rights except the possibility of leg

action to compel the transferor to transfer the note as well, f such was the agreement. Kelley v. Upshaw

(1952) 39 Cal. 2d. 179. Polhemus v. Trainer (1866) 30 C. 685. The holdings are codified at UCC, Art. 3.

Consequently, when one transferee receives the note and another receives the deed of trust, the one holding

the note prevails, regardless of who first received a transfer. Adler v. Sargent (1895) 109 C. 42, 41. CA

Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Ed., §§1.25. Where the

mortgagee has ‘transferred’ only the mortgage, and not the underlying note, the transaction is a nullity and his

“assignee” having received no interest in the underlying debt or obligation, has a worthless piece of paper. (4

Richard R. Powell, on Real Property §37.27[2] (2000).; In re Mitchell, supra @ p.12. In re Foreclosure Cases,

521 F. Supp. 2D 650. see Landmark National Bank v Kesler, 216 P.3d.158 (KS, 2009). The Kansas Supreme

court held the foreclosing entity had no standing to bring the foreclosure action a debtor. MERS v. Southwest

Homes of Arkansas, 08-1299 (Ark. 3-19-2009). Gates can tender amount due---but to the lender--not banksters!

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II. PRELIMINARY INJUNCTION ANALYSIS (Civil Code §527)

Plaintiff is disabled and a senior as defined in Civil Code §1761(f)(g). CRC 1.100 requires accommodations

which may include making reasonable modifications in policies, practices, and procedures. CRC 1.100 (a)3.

Gates, a widower faces losing his home of 30 years Exh. B is a chart showing the incestuous relationships of the

banksters who created the pretext of an “arms length sale.” The train is driven by Six-Billionaire Andrew Beal,

who owns and controls all 3 entities recited in the purportedly “arms length” “assignment” at Exh. B-3.

Andrew Beal is worth over $6 billion dollars. Perhaps converting homes nationwide is how he got so rich!

A. Plaintiff has no adequate remedy; hardship will occur if a sale is not enjoined; balance tips in his favor

The court may grant a preliminary injunction under CCP §527. Plaintiff must show 1) inadequate remedy

at law, i.e. compensation would be insufficient; 2) a serious risk of irreparable harm absent injunctive relief; 3)

a likelihood plaintiff will prevail on the merits of the underlying controversy; 4) comparison of harm to defendant

in issuing an injunction versus the harm to plaintiff in withholding it. The balance tips in plaintiff’s favor herein.

It is conclusively presumed the loss of real property which is a single family residence can not be compensated

with pecuniary damages. Civ. §3387. Demarist v. Quickloan Funding, Inc. 2009 WL 940377 at 9 (Cal.2009).

Plaintiff will lose his home if trustee conducts the sale. GATES would be homeless after 30 years in his home.

The stress of losing his home and having to move his personal belongings could cause him to have a heart attack.

In contrast, defendants will suffer no hardship if granted. They will retain a security interest as recorded

can liquidate the asset if they prevail. The property is not marketable as it is only 80% finished and can not be

sold without an occupancy permit. A down market, coupled with unfinished construction makes it hard to sell.

A vacant property would be subject to vandalism. Defendants can only gain by delaying the foreclosure until the

market picks back up, the construction is finished and the ongoing landscape repairs are completed.

Since hardship tips heavily to plaintiff he need only establish a serious question going to the merits upon

which he has a better than fair chance of prevailing. Miller v. Ca Pad. Med. 19 F.3d. 449, 456 (9th. Cir. 1994).

Plaintiff does not need to prove he will win. GATES alleged, and can establish prima facie violations of the law,

and at the very least has a fair chance of prevailing on the merits.

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B. Plaintiff will prevail on the merits; he raises serious questions going to the merit.

Foreclosures are governed by CCP §2924 et seq. which requires that non-judicial foreclosure sale shall not

take place unless it is done on behalf of the beneficiary of the note secured by the trust deed. Therefore, only a

beneficiary has standing to foreclose. The Notice of Default fails to identify any beneficiary. (Exh. B-5)

It merely lists “LPP Mortgage LTD, LP” as the contact to find out how much must be paid to avoid foreclosure.

At no time has LPP ever held any beneficial interest in the note, nor could LPP have acquired any beneficial

interest in the NOTE because the NOTE was assigned to DB Structured Products Inc. on September 25, 2005.

(Exh. A-10) Defendants failed to identify the beneficiary as mandated by 15 USC §1641g.

The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of property

and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute.

Miller & Starr, CA Real Estate (3rd. Ed.) Deeds of Trust & Nort. Ch. 10, §10.179. Miller v. Cote, 127 C.C.3d.

888, 894 (1982). It has been the cornerstone of foreclosure law that the statutory requirements, intending to

protect the trustor from a wrongful or unfair loss of property must be complied with strictly. Id, §10.18.

“Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one

of them being that the notice of default will be strictly construed and must correctly set forth the amounts

required to cure the default.” Sweatt v. The Foreclosure Co., Inc., 166 C.A.3d 273, 278 (1985). The Notice of

Trustee’s Sale (NOS) must contain “A description of the security instrument and an identification of the parties to

the instrument. Civil §2924f (b)(1). The notice must also include an accurate statement of the total amount of

unpaid balance of the obligation secured by the real property to be sold as well as a statement of the costs,

expenses, and advances incurred at the time of the initial publication of the notice of sale. Civ. Code §2924f(b)(1);

Miller & Star California Real Estate (3rd. Ed.);. Deeds of Trust and Mortgages, Chapter 10 §198

As shown by the declaration of Plaintiff and his verified complaint Defendants undeniably failed to perform any

of the steps required by §2923.5 before they recorded the Notice of Default and issued a Notice of Trustee’s Sale.

There is a stamp under Gates signature which recites, “Pay to the order of DB Structured Products, Inc

Without Recourse Washington Mutual Bank, FA By Cynthia Riley Vice President.” DB was the trustee on the

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P&S agreement which securitized the note. (Exh. D2). The offering including Gates’ loan closed Oct. 1, 2005.

(Exh. D2). Once the note was assigned to DB on 9-25-05 it became an asset of the DB/WaMu sponsored trust.

Pursuant to governing documents of the P&S and IRS code, all loans had to be added 90 days after closing.

Thus, Gates’ loan became a trust asset no later than Dec. 29, 2005 (90 days after the securities offering closed).

Accordingly, there could be no further assignment to anyone. It would defeat the REMIC trust

Once in the trust, the trustee could not split the trust deed from the NOTE. The trustee was required to hold

the original note and trust deed. (Exh. D-7) Additionally the trustee must hold originals of all assignments on

the note as part of the mortgage file (D-7). The P&S defines the “beneficial holder” as a person holding a

beneficial interest in a certificate. (D-7) Power of Sale is voluntarily granted by the trusstor; a trustee may

only foreclose as set forth in the power granted. The trustee may not exceed its limited scope of the grant.

The GATES note recites in par. 7 (Exh. A-7) “If I am in default, the Note Holder may send me a written

notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to

pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount.”

The Note Holder is defined in the P&S as any person holding a certificate. LPP is not/was not a note holder.

A loan servicer is not a Note Holder or a lender and lacks the power or authority to foreclose. Even if a servicer

could foreclose on the property it would not be LPP because LPP it is not the loan servicer. MGC is the servicer.

The Gates’ trust deed, at par. 24 authorizes only a lender to substitute the trustee. (Exh. A-26) The Substitution

of Trustee recorded against Gates’ property on 11-15-11 was executed by LPP. (Exh. B-10) LPP is not/was not a

lender. A lender is the person(s) who funded Gates’ escrow/loan; i.e. certificate holders who purchased RMBS’s

in the WaMu/DB AR-13 offering. LPP is not one of them. LPP is nothing more than a fraudulent pretend lender.

C. Equity Supports Issuance of An Injunction The principles of equity apply to foreclosure sales. Equity does not allow one to take advantage of his own

wrong nor will it assist in perpetration of fraud on another or the public. Courts can set aside a foreclosure sale

when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there

has been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Assn v.

Reidy, 15 Cal.2d. 243, 248 (1940). Whitman v. Transtate Title Co. (1985) 165 C. A.3d. 312, 322-323.

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D. The Relative Hardships Favor Plaintiff In this matter, the relative hardship to plaintiff—losing his home—represents irreparable injury and harm,

diminishing plaintiff’s requirement of showing probability of success on the merits. The loss of one’s property

due to foreclosure constitutes an irreparable injury. Demarest v. Quick Loan Fund, In. (2009) West Law 940377

(CD. Cal. Wrobel v. Sl. Pope & Assoc., 2007 WL 2345036 at 1 (S.C. Cal. 2007).

Numerous courts have found this injury enough by itself to mandate preliminary injunctive relief.

Nichols v. Deutsche Bank Natl. Trust 2007 WL 418111, at 2 (S.D. Cal. 2007). United Church of Med. Ctr. v.

Med Ct. Com. 689 F.2d. 693, 701 (7th. Cir. 1982. If defendants are allowed to foreclose, plaintiff will lose his

home of 30 years, while disabled at 69. A harsher outcome could scarcely be imagined. The balance of harm

clearly weighs in favor of plaintiff, both as a matter of law and common decency.

E. No Bond Should be Required Courts have broad discretion in determining the amount of bond, or can waive the bond where it is equitable.

Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d. 878, 882 (9th. Cir. 2003). CRC 1:100

The court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the

defendant from enjoining his or her conduct. Jorgensen v. Cassidy, 320 F.2d. 906, 919 (9th Cir. 2003)

Here, there is no realistic harm to defendants from a restraint of the foreclosure proceedings and trustee’s sale.

If the Defendants position that the loans were valid is correct, then the loans are adequately secured by the very

property in question, which is worth more than a million. Additional security is neither appropriate nor

warranted. Phleger v. Countrywide Home Loans, Inc. 2007 WL 4105672 at 6. (N.D. Cal. 2007. Moreover, MGC

still holds $88, 925 of GATES insurance proceeds which exceeds the $71,000 default listed on the NOD. Exh. B

In this case the court should accommodate GATES not only because it is the equitable thing to do but also

because the court has a duty to make special accommodations for an elderly, disabled person. CRC 1:100. (a) (3).

CONCLUSION

Defendants should not benefit from fabricating assignments and recording them in violation of Pen. §115.

Plaintiff should permitted to conduct discovery and prove to recorded “assignments of trust deed” are fraudulent,

invalid, and void ab initio. The court should require production of the ORIGINAL NOTE and TRUST DEED.

late: February 6,2012 By:

VERIFICATION

I, DAVID GATES, as trustee for the David W. Gates Trust dated August 5, 1996 declare:

I am plaintiff. I have read this application for preliminary injunction in its entirety and declare, under

jenalty of perjury and the laws of California, the allegations set forth herein are based on personal knowledge,

:xcept as to allegations made on f and as to those allegations I believe them to be true.

!xecoted Feb 6, 2012 in S.B. W. Gates Trust dated August 5, 1996

DECLARATION OF DAVID W. GATES IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUCTION

I, DAVID W. GATES, trustee make the following statements based on personal knowledge.

1. I completely read the entire contents and every page of the verified complaint filed in this action.

2. Although I do not understand the complexities of securitization and legalese I understood the facts.

3. 1 hereby authenticate the documents at Exh. F of the complaint. On 11-19-08 my wife died and less

than 6 months later our home which I have owned since 1977 burned in the Jesusita fire on 5-6-09.

Within months my health deteriorated from the stress resulting in the need for heart surgety. I am 69.

4. I submitted a claim to Farmers Fire Exchange who approved my claim, but said I had to rebuild before

they would issue a pay-out. I lost all rental income from my tenants because there were no rooms to rent

5. I was forced to use high interest credit cards to buy materials to rebuild so I would have a place to live.

I stayed with friends. Some friends helped me rebuild. Materials were very expensive so I ran up over

$100,000 in credit card debts. I spent approximately $50,000 in cash on materials where vendors would

not take credit cards because my credit was destroyed after I was unable to make mortgage payments.

I was stuck between a rock and a bard place because Farmers would not pay out my fire claim benefit

until I rebuilt and I bad very little cash as my tenants had to relocate to other places until I could rebuild.

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Notce and Order to Show Cause - P r e l i m i n a r y I n j u n c t i o n

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6. Farmers said I had to complete 80%. When I did Farmers sent an agent to certify it was 80% finished.

7. Farmers sent 3 checks for a total of $202,548.64. (Exh. F1) I was shocked when I saw the checks were

made payable to MGC Mortgage, Inc. and myself. I never asked for that. I never told Farmers about it.

However, I had called MGC to tell them about the fire and that I would not be able to make payments.

What I believed happened is that MGC called Farmers and convinced them to put its name on the check.

This was not fair because I paid the premiums and was the beneficiary under that policy of fire insurance.

8. I called MGC. Their staff told me to mail them the checks, they would sign off and return them to me.

I relied on that representation and mailed them to MGC. They did not keep their promise. I kept calling.

I wrote to them several times pleading to release my funds. My letters and numerous calls were ignored.

9. I continued to go further into debt having to use all of my social security funds to buy materials and eat.

Eventually my credit cards were cancelled by the vendors for non-payment and filed claims and lawsuits.

10. I was at the point of a nervous breakdown in April when five months had passed and MGC was still

ignoring my phone calls, letters and threats. I went to my friend Nancy Duffy McCarron for help, whom

my wife and I had known for 15 years as she used to attend our annual Christmas parties. I was broken.

I was at times suicidal. Nancy Duffy McCarron saved my life. She immediately contacted MGC and

threatened to sue them for a racketeering enterprise. In 2 weeks she got half of my money from MGC.

They released $113, 622.96 (about half the money) to my attorney and I could continue to rebuild and eat.

11. I used a large amount of those funds to settle the $100,000 in claims against me by the creditors. The

remainder was used to continue buying materials to rebuild the home. MGC kept $88,925.68 as they

insist I must finish the home 100% before they will release the rest of Farmers proceeds they hold (F2,F3)

12. I was again caught between a rock and a hard place because I had no funds to buy materials and I am

required to replace the landscaping by Farmers before they will release funds for those improvements.

Fortunately I discovered that West Flower Growers in Point Magu was suffering from the recession and

had a surplus of palm trees they can not sell. Due to my hardship they agreed to sell them to me at

various prices between $11 - $100. These trees are worth thousands as they are full grown. I am using a

backhoe to install them.

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13. Now MGC is trying to foreclose and take my home while keeping $88,925.68. I came to my attorney

when I returned from Idaho and discovered the notices posted on my door. My attorney researched my

entire case and discovered the assignment to MGC and the prior assignment were void and invalid. She

said she had a lot of experience with fraudulent real estate documents and “knows it when she sees it.”

14. At the end of the 2010 year I received the 1099 form shown at Exhibit F4 of my verified complaint.

Because I do not know tax law I brought it to my attorney. She said this meant the purported “lender”

had charged-off the loan as a vehicle to get a tax break against significant income during the tax year.

Although I do not understand tax law I could see the form recited that my debt was cancelled.

15. I now suspect that MGC may have put in a claim to their own ALTA insurer and collected in full.

16. If MGC collected in full from an insurer who had issued an insurance policy they have been paid already

Taking my home worth a million + would be unjust enrichment and a fraud upon me and the insurer.

MGC would be unjustly enriched if they now confiscate my home, as they kept my insurance proceeds

while I accrued $100,000 in credit card debt, and used more than $50,000 of my cash on materials.

MGC would get at least $300,000 in improvements I paid for plus all the funds they wrongfully converted.

17. We decided to file the within action to seek justice for all of the frauds and torts committed against me.

The last three years of my life have been devastating and have caused me severe stress and anxiety.

Had it not been for my attorney who saved my life I would probably not be here today.

18. My attorney intends to do vigorous discovery in this case and bring to justice the persons who fabricated

the assignments of trust deed and who have defrauded me throughout the past 3 years.

19. Defendants never contacted my attorney to effect a workout agreement whereby the payments could be

suspended, or at least reduced until I can finish my home, get an occupancy permit issued, and collect

the final pay-off from Farmers Insurance. I was not aware that I had the right to meet with MGC and my

attorney to explore options to avoid foreclosure, and that they had to meet with me if we requested it.

I was never given the toll-free number for HUD or told that I could seek HUD intervention & counseling.

I just discovered today that Civil Code §2923.5 required MGC to contact us before filing a Notice of

Default. I never received any counseling as required. My attorney told me MGC never contacted her.

11 which should be happening in the very near future. I 1

21. I declare the above statements to be true under penalty of perjury. Executed on February 6,2012.

20. If it is determined that MGC's claim is valid I can tender payments when Fanners pays off the final 20%

dmJa* GATES. as trustzfor the D a 9 W . Gates Trust

DECLARATION OF NANCY DUFFY MCCARRON IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION

I, NANCY DUFFY MCCARRON, make these statements based on personal knowledge

l2 II 1. During the last week of April, 201 0 David Gates arrived at my home nearly hysterical. He was crying. I 13 I I I had known David Gates and his wife for 15 years and had never seen him with such anxiety. David explained I l4 /I that he had received 3 checks from Farmers Insurance the last week of January 2010 for $202,548.64 (Exh. F ) I 15 I I after he completed 8 0 b of the rebuilding of his home after it burned in the Jesusita fire. David said Parmen made1

l6 1 1 the checks payable jointly to MGC and himself. David was desperate for money as he had been living on credit I cards in the past and ran up $100,000 buying materials to rebuild as Farmers would not pay his claim until he

18 I II rebuilt. David said MGC told him to sign the checks, mail them to him and MGC would sign them and mail them

i 9 I 20 11 back. David said he had been trying for 5 months to get them to release his insurance proceeds. David said he I 21 /I had made hundreds of phone calls, and sent various demands. I immediately contacted MGC and threatened to

2 2 II sue them for racketeering if they did not send the proceeds. They agreed only to send about half of the proceeds, I 2 3 / I claiming that David owed back payments, interest, and various "late fees, penalties, and assessments,'' I I I Rather than sue we agreed to take halfthe proceeds. MGC still retains the remainder of David's proceeds. I 2 5 1 ( 2. The UPS label shows the shipping information to my office. (Exh. F2) The return address shows it was I

shipped from "Dovenmuehle Mortgage Inc., 1 Corporate Drive, Lake Zurich, IL. 60047 which is noteworthy 2 2 6 7 1 1 I I I since the maker of the check was MGC Mortgage, although both corporations shared the same address. (Exh F3) I 2 8

II This evidence proves these two corporations are related. The check was made on 5-12-2010 which is noteworthy.

Notce and order t o Show Cause - P r e l i m i n a r y Injunction I

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The next year (2011) David returned to my office to bring me a copy of a 1099 form he received. (Exh. F4)

This was quite interesting since as it shows Dovenmuele Mortgage Inc., recites the same form was sent to ITR.

Amazingly it recites that David’s loan (same loan no. as on all the correspondence from MGC) was cancelled.

A corporation is required to notify the IRS, with a copy to the debtor, if it cancels the debt. This could only

happened in one of two ways; either the debt was paid off, or the debt was “charged-off” by the lender. (see F4).

If a lender submits a claim for the amount of its loan (which was insured) and a house burns down, it can submit

a claim to its insurer for the full amount due on the home. I believe this is what happened in this case. (see F4).

3. There was an entry under creditor’s federal identification number. It was 36-2435132. I googled it. (Exh F5)

Low and behold a document popped up showing that ID number belonging to Dovenmuele Mortgage,Inc. (Ex.F5)

Savings and Retirement Plan, with the beneficiaries being the employees of Dovenmuehle. This was interesting.

Why would this retirement fund be sending David Gates an IRS 1099 form? David had not paid the debt.

Yet, the implications of this form being filed with the IRS is that such “foregiveness” or “cancellation” of a debt

is a taxable event for the taxpayer. David would then owe TAX as if he had received $1.2 million as income----

the outstanding amount of the debt when cancelled. Since we know that David did not pay the debt (or MGC

would not be foreclosing). the only feasible explanation is Dovenmuele received $1.2 million from someone?

The only conceivable someone would be an insurer who paid out on the claim. MGC could not make a deposit

on its books because if they were audited they would have to explain where they got that money. Accordingly

they laundered the $1.2 million over into their own employee retirement fund. These banksters are very creative!

I had a hunch that although the Dovenmuehle entity was in Zurich Illinois they were probably registered in Texas.

The reason I had this hunch is I had traced all 3 companies listed on the fabricated assignment of trust deed

(MGC Mortgage, Loan Acquisition Corporation, and LPP Mortgage Ltd.) to Plano Texas to the same address.

I was right! I also suspected that Cal-Western Reconveyance Corporation (the foreclosing “trustee”) although it

is registered in California at El Cajon, CA, that it would somehow be tied to this same incestuous trio. I was right

again! Sure enough Cal-Western was traced back to Plano Texas. The “Cal-Western” was given to that entity to

trick the courts into thinking it is a California entity. NOT TRUE!! It is a Texas entity traced right back to the trio

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4. I knew there must be a common thread to this incestuous group all tracing back to the same address in Texas.

Sure enough I discovered the link. They are all controlled by Andrew Beal, a BILLIONAIRE from Plano, TX.

One must wonder if this is how BEAL became a BILLIONAIRE, by cutting secret deals with the other banksters

on Wall Street who securitized thousands of risky loans into “pools of loans” and sold them to investors as bonds.

Some investor whose bond didn’t pay off would get paid by government insurance on those bonds so he got paid.

So the trustee DB just split the trust deeds from the notes which was illegal and breach of duty to the certificate

holders on the notes as it rendered their minutely fractional beneficial interest on the notes unsecured and defeated

the tax-free status of the REMIC trust in which the investors invested, on reliance that it would be kept tax-free.

5. This splitting of the trust deeds from the notes was as illegal violation of securities regulations, just like the

illegal splitting of “options to purchase” from the stock itself. I believe that Andrew Beal, the billionaire, cut a

secret deal with DB Structured Products, Inc. (the Wall Street banksters running that entity) to buy hundreds, or

even thousands of these illegal, fabricated “assignments of trust deed.” Keep in mind they were worthless to

DB as trustee because they knew the original notes had to be kept with them as the “custodian of the notes”

pursuant to the Pooling & Servicing Agreements” to they could grab millions by selling them to other banksters,

who would then simply foreclose on all the loans in default and confiscate the properties. If MGC acquired

anything legally it would only have been the right to service the loan, not foreclose on it. Only the lender can

foreclose who in this case is the thousands of “certificate holders” who hold a minutely fractional share of the

beneficial interest in the note. It is the NOTE which is the negotiable instrument and the obligation. (Exh. C)

(See UCC sections at Exh. K which clearly explain the rules on notes as negotiable instruments and note holders.

I believe MGC already received insurance proceeds which fully paid the outstanding balance on the loan.

They also converted $88,925.68

6. It is interesting to note that the first Notice of Default recites that Dvaid owes $73, 351.90 to cure. (Exh. B5)

and a few weeks later a new Notice of Default was recorded showing he owed 91,754.18 -- $18, 000 more. (B6)

This significant discrepancy is suspect at best. How could he owe $18,000 more from one month to the next?

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7. Under §2924 et seq. the trustee was required to record a substitution of trustee BEFORE filing the Notice of

Default. In this case the trustee filed the NOD and then filed the substitution of trustee. Accordingly, the first

NOD was invalid because the trustee had no authorization to issue an NOD until the beneficiary granted it to him.

Because the NOD was fatally defective, the subsequent power of sale was defective.

8. No one from MGC or CWRC ever called me to discuss David’s account, even though they had a signed

authorization from Gates and they knew I represented him. I was as surprised as David when they filed NOD.

This was a blatant failure to comply with §2923.5 which mandates that the trustee absolutely may not foreclose

without first contacting the debtor (or the debtor’s attorney if there is one) to try to work out a repayment plan to

avoid foreclosure. MGC knew I represented David as I advised them of that in 2010. The failure to comply was

intentional. MGC did not want to work out a repayment plan. They just wanted to steal the $1,000,000 home.

9. I investigated Cynthia Riley, the purported VP of Wamu bank, whose stamp appeared on the assignment

from WaMu to DB Structured Products, Inc. purportedly on 8/30/2006 “assigned” the trust deed to DB. There are

several websites on the internet which arose after millions of Americans were made homeless since 2008 to help

other who are trying to discover if their assignments were fabricated or forged. The website has a list of know

“robosigners” and sure enough Cynthia Riley’s name appeared on the list. It was reported that she has been

hiding out and no lawyer has been able to find her for a deposition. The website also posted a notice that if the

questioned document was executed in certain counties it was highly likely the document was fabricated with “cut

and paste” robosigner signature stamps” as well as “cut and paste” notary “stamped signatures.” There are only

about 10 counties nationwide on the list. Duval County Florida was on the list. This is where the fabricated

assignment of trust deed was purportedly executed and notarized. I am 100% sure the assignment of trust deed

which is being used as the purported authority to foreclose is a fabricated instrument. I am 100% sure that

defendants will not be able to produce an original note, but will file yet another perjured document claiming it

was “lost.” They were warned in the complaint that offering any false document into a proceeding if a felony.

I declare the above statements to be true under penalty of perjury. Executed on February 6, 2012.

Nancy Duffy McCarron

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NOTICE OF THIS HEARING:

The defendant trustee who recorded the NODs and the NOS (Cal-Western Reconveyance Corporation) has

known about our intent to bring an application for TRO with OSC for Preliminary Injunction since Jan 12, 2012.

On 1-12-2012 I sent the notice by fax, by email and by US mail. I called to speak to the trustee or attorney.

Desiree (CWRC) would not give me an email address or phone for them. Neither ever called. They ignored me.

Despite the warnings and demand to cease foreclosure, they recorded a Notice of Sale to occur on 2-6-2012.

I sent another warning including a second copy of the first demand, about procedural and substantive deficiencies.

They will not take my calls nor return any voicemails left there. On Jan. 30, 2012 I emailed copies of verified

complaint with all exhibits to CWRC, DB, Wamu/Chase, MGC/LLP defendants For a third time, I notified them

I would move for a TRO and preliminary injunction and would send email and telephone notice if OSC is issued.

A process server has now served all 11 named defendants with: Summons, Verified Complaint, ADR packet, Lis

Pendens Notice, Notice of Entry of TRO Order, TRO Order, TRO papers. Proofs of service will be filed today.

I declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 2-6-12.


PROOF OF SERVICE

I am over 18 and not a party to the action. My address is 950 Roble Lane, Santa Barbara, CA 93103.

On February 6, 2012 I served a copy of this Notice of and Application for a Preliminary Injunction as follows:

email: CWRC:[email protected] (Desiree) DB defendants:[email protected] and [email protected]

WaMu/Chase defendants: [email protected] (Shelle)

faxed to: CWRC: 619-590-9299 I deposited a copy in the US mail, with postage thereon, addressed as follows:

Cal-Western Reconveyance Corporation, Trustee PO Box 22004, 525 Main St. El Cajon, CA 92022-9004 I declare these statements to be true under penalty of perjury and CA law. Executed in Santa Barbara on 2-6-12.


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Appl Prel Inj Verified

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